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Moore v. Gottlieb

Appellate Division of the Supreme Court of New York, Second Department
Dec 18, 2007
46 A.D.3d 775 (N.Y. App. Div. 2007)

Summary

holding "[f]or a loss to be considered the result of an act of God, human activities cannot have contributed to the loss in any degree. It cannot be determined at this juncture if the damage to the plaintiffs' property was a consequence of negligence or an act of God"

Summary of this case from Barden v. City of N.Y.

Opinion

No. 2006-09167.

December 18, 2007.

In an action to recover damages for trespass, negligence, and nuisance, the defendants Joseph Gottlieb and Monticello Blacktop Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Alessandro, J), dated September 5, 2006, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them.

Goldberg Segalla, LLP, White Plains, N.Y. (Brian T. Stapleton and Matthew Lerner of counsel), for appellants.

Joan Iacono and John Barone, Bronxville, N.Y., for respondents (one brief filed).

Before: Crane, J.P., Rivera, Angiolillo and Dickerson, JJ, concur.


Ordered that the order is affirmed insofar as appealed from, with costs to the respondents payable by the appellants.

Contrary to the appellants' contention, they failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. For a loss to be considered the result of an act of God, human activities cannot have contributed to the loss in any degree ( see Cangialosi v Hallen Constr. Corp., 282 AD2d 565, 566). It cannot be determined at this juncture if the damage to the plaintiffs' property was a consequence of negligence or an act of God ( see Fulgum v Town of Cortlandt, 2 AD3d 775, 777; Zeltmann v Town of Islip, 265 AD2d 407, 408). "Proximate cause is a jury question" ( Nowlin v City of New York, 81 NY2d 81, 89). Accordingly, the Supreme Court properly denied the motion for summary judgment, regardless of the sufficiency of the plaintiffs' opposition ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).


Summaries of

Moore v. Gottlieb

Appellate Division of the Supreme Court of New York, Second Department
Dec 18, 2007
46 A.D.3d 775 (N.Y. App. Div. 2007)

holding "[f]or a loss to be considered the result of an act of God, human activities cannot have contributed to the loss in any degree. It cannot be determined at this juncture if the damage to the plaintiffs' property was a consequence of negligence or an act of God"

Summary of this case from Barden v. City of N.Y.
Case details for

Moore v. Gottlieb

Case Details

Full title:HAROLD MOORE et al., Respondents, v. JOSEPH GOTTLIEB et al., Appellants…

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

Date published: Dec 18, 2007

Citations

46 A.D.3d 775 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 10119
848 N.Y.S.2d 328

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