Stirpe v. T.J. Maloney & Sons, Inc.

Appellate Division of the Supreme Court of New York

Stirpe v. T.J. Maloney & Sons, Inc.

252 A.D.2d 871, 675 N.Y.S.2d 709, 1998 N.Y. App. Div. LEXIS 8596

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

DecidedJuly 23, 1998

StatusPublished

Cited by11 cases

This text of 252 A.D.2d 871 (Stirpe v. T.J. Maloney & Sons, Inc.) 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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Stirpe v. T.J. Maloney & Sons, Inc., 252 A.D.2d 871, 675 N.Y.S.2d 709, 1998 N.Y. App. Div. LEXIS 8596 (N.Y. Ct. App. 1998).

Pincite

Opinion

—Carpinello, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered December 24, 1997 in Schenectady County, which denied defendant’s motion for summary judgment dismissing the complaint and all cross claims.

On January 19, 1994, plaintiff, an employee of third-party defendant Schenectady County Community College (hereinafter SCCC), slipped and fell, injuring herself on a patch of ice outside the building where she was employed. Several days earlier, there had been a water main break outside the entrance to this building and SCCC had hired defendant to repair the damage. Although defendant constructed a snow fence around the work site, plaintiff claimed she slipped on ice which had extended beyond the barricade onto the blacktop for several feet, a condition which plaintiff was concededly aware of. Plaintiff commenced this personal injury action and after issue was joined, defendant’s motion for summary judgment was denied, prompting this appeal.

There must be an affirmance. Defendant argues that plaintiff allegedly assumed the risk of injury when she proceeded to walk in the area where she knew ice had formed rather than [872]*872take another available exit. It is well settled that the doctrine of primary assumption of risk which, if applicable, would operate as a complete bar to an injured plaintiffs claim, “is limited to plaintiffs injured while voluntarily participating in a sporting or entertainment activity” (Comeau v Wray, 241 AD2d 602, 604). Since the doctrine is clearly not applicable here, the comparative negligence statute applies (see, CPLR 1411), which “merely reduces the plaintiffs recovery in the proportion which his or her conduct bears to the defendant’s culpable conduct” (Cohen v Heritage Motor Tours, 205 AD2d 105, 108), a determination which must be left to the jury.

Finally, since the remaining argument advanced by defendant was not raised in its pleadings or motion papers before Supreme Court, it is not properly before this Court for review (see, Sam v Town of Rotterdam, 248 AD2d 850, 851-852, lv denied 92 NY2d 804).

Mikoll, J. P., Mercure, Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.

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—Carpinello, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered December 24, 1997 in Schenectady County, which denied defendant’s motion for summary judgment dismissing the complaint and all cross claims.

On January 19, 1994, plaintiff, an employee of third-party defendant Schenectady County Community College (hereinafter SCCC), slipped and fell, injuring herself on a patch of ice outside the building where she was employed. Several days earlier, there had been a water main break outside the entrance to this building and SCCC had hired defendant to repair the damage. Although defendant constructed a snow fence around the work site, plaintiff claimed she slipped on ice which had extended beyond the barricade onto the blacktop for several feet, a condition which plaintiff was concededly aware of. Plaintiff commenced this personal injury action and after issue was joined, defendant’s motion for summary judgment was denied, prompting this appeal.

There must be an affirmance. Defendant argues that plaintiff allegedly assumed the risk of injury when she proceeded to walk in the area where she knew ice had formed rather than [872]*872take another available exit. It is well settled that the doctrine of primary assumption of risk which, if applicable, would operate as a complete bar to an injured plaintiffs claim, “is limited to plaintiffs injured while voluntarily participating in a sporting or entertainment activity” (Comeau v Wray, 241 AD2d 602, 604). Since the doctrine is clearly not applicable here, the comparative negligence statute applies (see, CPLR 1411), which “merely reduces the plaintiffs recovery in the proportion which his or her conduct bears to the defendant’s culpable conduct” (Cohen v Heritage Motor Tours, 205 AD2d 105, 108), a determination which must be left to the jury.

Finally, since the remaining argument advanced by defendant was not raised in its pleadings or motion papers before Supreme Court, it is not properly before this Court for review (see, Sam v Town of Rotterdam, 248 AD2d 850, 851-852, lv denied 92 NY2d 804).

Mikoll, J. P., Mercure, Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.

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252 A.D.2d 871, 675 N.Y.S.2d 709, 1998 N.Y. App. Div. LEXIS 8596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stirpe-v-tj-maloney-sons-inc-nyappdiv-1998.

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