Rojas-Wassil v. Villalona

114 A.D.3d 517, 981 N.Y.S.2d 388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 2014
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alexander W Hunter, Jr., J.), entered May 31, 2013, which, insofar as appealed from, denied defendants’ motion for summary judgment dismissing plaintiffs negligence cause of action, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Dismissal of the negligence cause of action is warranted in this case where plaintiff, a parole officer, was injured when, while on defendants’ property to arrest defendant Pena, she twisted and hyperextended her knee while climbing over a chain-link fence in the rear of defendants’ property. Defendants had no duty to ensure that the fence was safe for adults to climb (see Koppel v Hebrew Academy of Five Towns, 191 AD2d 415 [2d Dept 1993], lv denied 82 NY2d 652 [1993]), and no evidence was presented that the defects in the fence noted by plaintiffs expert were a substantial factor in plaintiffs accident.

Although defendants raised the arguments concerning duty and proximate cause for the first time on appeal, legal issues appearing on the face of the record which could not have been avoided may be reviewed by this Court for the first time on appeal (see Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2009]). Concur— Sweeney, J.E, Renwick, Moskowitz, Richter and Gische, JJ.