Smith v. Key Bank of Western New York, N.A.

Appellate Division of the Supreme Court of New York

Smith v. Key Bank of Western New York, N.A.

206 A.D.2d 848, 614 N.Y.S.2d 849

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 15, 1994

StatusPublished

Cited by4 cases

This text of 206 A.D.2d 848 (Smith v. Key Bank of Western New York, N.A.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith v. Key Bank of Western New York, N.A., 206 A.D.2d 848, 614 N.Y.S.2d 849 (N.Y. Ct. App. 1994).

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Order affirmed with costs. Memorandum: Supreme Court properly [849]*849denied defendant’s motion for summary judgment. In support of the motion, defense counsel asserted in his affidavit that there was no dangerous or defective condition on defendant’s premises and that plaintiff Thomas Smith’s conduct was the cause of the accident. Those conclusory assertions are insufficient for defendant to meet its burden of proof to entitle it to summary judgment (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Republic Natl. Bank v Luis Winston, Inc., 107 AD2d 581, 582). Moreover, summary judgment is seldom appropriate in negligence actions (see, Burlingame v Hefti, 181 AD2d 986). Indeed, even when "the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law” (Andre v Pomeroy, 35 NY2d 361, 364). Because questions of fact, at least arguably, are presented whether a dangerous or defective condition existed on the premises and whether that condition was a proximate cause of the accident, summary judgment is precluded (see, Hourigan v McGarry, 106 AD2d 845, 845-846, appeal dismissed 65 NY2d 637).

We note that the cases relied on by the dissent do not involve motions for summary judgment.

All concur except Pine, J. P., and Boehm, J., who dissent and vote to reverse in the following Memorandum.

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Order affirmed with costs. Memorandum: Supreme Court properly [849]*849denied defendant’s motion for summary judgment. In support of the motion, defense counsel asserted in his affidavit that there was no dangerous or defective condition on defendant’s premises and that plaintiff Thomas Smith’s conduct was the cause of the accident. Those conclusory assertions are insufficient for defendant to meet its burden of proof to entitle it to summary judgment (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Republic Natl. Bank v Luis Winston, Inc., 107 AD2d 581, 582). Moreover, summary judgment is seldom appropriate in negligence actions (see, Burlingame v Hefti, 181 AD2d 986). Indeed, even when "the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law” (Andre v Pomeroy, 35 NY2d 361, 364). Because questions of fact, at least arguably, are presented whether a dangerous or defective condition existed on the premises and whether that condition was a proximate cause of the accident, summary judgment is precluded (see, Hourigan v McGarry, 106 AD2d 845, 845-846, appeal dismissed 65 NY2d 637).

We note that the cases relied on by the dissent do not involve motions for summary judgment.

All concur except Pine, J. P., and Boehm, J., who dissent and vote to reverse in the following Memorandum.

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206 A.D.2d 848, 614 N.Y.S.2d 849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-key-bank-of-western-new-york-na-nyappdiv-1994.

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