Swade v. Nassau Valve & Supply Corp.

Appellate Division of the Supreme Court of New York

Swade v. Nassau Valve & Supply Corp.

288 A.D.2d 370, 734 N.Y.S.2d 85, 2001 N.Y. App. Div. LEXIS 11201

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

DecidedNovember 19, 2001

StatusPublished

Cited by2 cases

This text of 288 A.D.2d 370 (Swade v. Nassau Valve & Supply Corp.) 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.

Bluebook

Swade v. Nassau Valve & Supply Corp., 288 A.D.2d 370, 734 N.Y.S.2d 85, 2001 N.Y. App. Div. LEXIS 11201 (N.Y. Ct. App. 2001).

Pincite

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Thomas, J.), dated March 13, 2001, which denied its motion to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The Supreme Court should have granted the defendant’s motion to dismiss the complaint. “[A] duty of reasonable care owed by the tort-feasor to the plaintiff is elemental to any [371]*371recovery in negligence” (Eiseman v State of New York, 70 NY2d 175, 187). Accordingly, before a defendant may be held liable for its alleged negligence, it must be demonstrated that it “has assumed a duty to exercise reasonable care to prevent foreseeable harm to the plaintiff’ (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226). Here, the inaction of the defendant’s employees in merely failing to assist the plaintiff in his attempt to load his truck did not create such a duty. Furthermore, the plaintiff did not show that a special relationship existed between him and the defendant (see, Lippman v Island Helicopter Corp., 248 AD2d 596). Ritter, J. P., Gold-stein, Friedmann, Feuerstein and Crane, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Thomas, J.), dated March 13, 2001, which denied its motion to dismiss the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The Supreme Court should have granted the defendant’s motion to dismiss the complaint. “[A] duty of reasonable care owed by the tort-feasor to the plaintiff is elemental to any [371]*371recovery in negligence” (Eiseman v State of New York, 70 NY2d 175, 187). Accordingly, before a defendant may be held liable for its alleged negligence, it must be demonstrated that it “has assumed a duty to exercise reasonable care to prevent foreseeable harm to the plaintiff’ (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226). Here, the inaction of the defendant’s employees in merely failing to assist the plaintiff in his attempt to load his truck did not create such a duty. Furthermore, the plaintiff did not show that a special relationship existed between him and the defendant (see, Lippman v Island Helicopter Corp., 248 AD2d 596). Ritter, J. P., Gold-stein, Friedmann, Feuerstein and Crane, JJ., concur.

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Bluebook (online)

288 A.D.2d 370, 734 N.Y.S.2d 85, 2001 N.Y. App. Div. LEXIS 11201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swade-v-nassau-valve-supply-corp-nyappdiv-2001.

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