From Casetext: Smarter Legal Research

Gaither v. City of N.Y

Appellate Division of the Supreme Court of New York, First Department
Dec 31, 2002
300 A.D.2d 255 (N.Y. App. Div. 2002)

Summary

affirming summary judgment in favor of defendant where "the proximate cause of decedent's death was his own willful behavior in engaging in the hazardous and illegal activity known as `elevator surfing'"

Summary of this case from Farley v. Greyhound Canada Transportation Corp.

Opinion

2684

December 31, 2002.

Order, Supreme Court, New York County (Michael Stallman, J.), entered October 15, 2001, which, upon the grant of renewal, adhered to the prior order of the same court and Justice granting defendant New York City Housing Authority's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Brian J. Isaac, for Plaintiff-Appellant.

Herbert Rubin, for Defendant-Respondent.

Before: SULLIVAN, J.P., ELLERIN, LERNER, GONZALEZ, JJ.


The motion court, in granting defendant Housing Authority's motion for summary judgment dismissing the complaint, properly held that the proximate cause of decedent's death was his own willful behavior in engaging in the hazardous and illegal activity known as "elevator surfing," and compensation should not be awarded in such circumstances (see Manning v. Brown, 91 N.Y.2d 116; Barker v. Kallash, 63 N.Y.2d 19;Matter of McMillan v. New York City Hous. Auth., 266 A.D.2d 153, lv denied 95 N.Y.2d 752; Tillmon v. New York City Hous. Auth., 203 A.D.2d 19). The case of Alami v. Volkswagen of Am. ( 97 N.Y.2d 281) does not require a different result. Unlike the plaintiff in Alami, plaintiff here is not trying to recover for some defect violative of a duty owed to the general public lawfully engaged. Instead, plaintiff seeks to recover for the hazardous and illegal conduct of decedent — the sort of conduct that may not be relied upon by its perpetrator, or, as here, by its perpetrator's representative, to define a defendant's duty (see id. at 287).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Gaither v. City of N.Y

Appellate Division of the Supreme Court of New York, First Department
Dec 31, 2002
300 A.D.2d 255 (N.Y. App. Div. 2002)

affirming summary judgment in favor of defendant where "the proximate cause of decedent's death was his own willful behavior in engaging in the hazardous and illegal activity known as `elevator surfing'"

Summary of this case from Farley v. Greyhound Canada Transportation Corp.
Case details for

Gaither v. City of N.Y

Case Details

Full title:MARIE GAITHER, ETC., Plaintiff-Appellant, v. THE CITY OF NEW YORK…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 31, 2002

Citations

300 A.D.2d 255 (N.Y. App. Div. 2002)
751 N.Y.S.2d 368

Citing Cases

Wolfe v. Hatch

In this regard, although much is made of the “remote” location of the detonation site, the issue is not, to…

Williams v. City of New York

( Giuffrida v. Citibank Corp., 100 NY2d 72; Mullen v. Zoebe, Inc., 86 NY2d 135; O'Connor v. City of New York,…