Polen v. Fuchs

203 A.D.2d 977, 612 N.Y.S.2d 1004

Opinion

—Judgment unanimously reversed on the law without costs, motions denied, and complaint and cross claims reinstated. Memorandum: Supreme Court erred in granting defendants’ motions for summary judgment dismissing the complaint and cross claims. Plaintiff raised questions of fact whether defendants breached duties of care owing to him (see, Basso v Miller, 40 NY2d 233, 241; Meseck v General Elec. Co., 195 AD2d 798; cf., Csukardi v Bishop McDonnell Camp, 148 AD2d 657). Defendants Fuchs and Southwell contend that, even if they could be found negligent, plaintiff’s act of walking backward while viewing the boat was a superseding cause of his injury. We disagree. At most, that conduct would constitute comparative negligence (see, e.g, Saldarriaga v DeSantis Bros., 151 AD2d 270, lv denied 74 NY2d 613). (Appeal from Judgment of Supreme Court, Suffolk County, Cohalan, J. — Summary Judgment.) Present — Denman, P. J., Pine, Lawton, Callahan and Davis, JJ.