Fernandez v. Castillo, 2016–13022

• Decision Date: 24 October 2018
• Docket Number: Index No. 21219/12,2016–13022
• Citation: 84 N.Y.S.3d 367 (Mem),165 A.D.3d 1044
• Parties: Jorge Castillo FERNANDEZ, appellant, v. Juan Jose CASTILLO, respondent.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1044

84 N.Y.S.3d 367 (Mem)

Jorge Castillo FERNANDEZ, appellant,

v.Juan Jose CASTILLO, respondent.

2016–13022

Index No. 21219/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 25, 2018

October 24, 2018

Pen~a & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), for appellant.

Malapero & Prisco, LLP, New York, N.Y. (Jennine A. Gerrard and Michael Driscoll of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Ralph T. Gazzillo, J.), dated November 1, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

On October 23, 2011, the plaintiff agreed to help the defendant, his brother, remove a tree from the defendant's property. The parties decided that while the plaintiff would cut a particular branch with a chainsaw, the defendant would pull the branch away from his neighbor's property with a rope. After the plaintiff tied one end of the rope to the branch, the defendant tied the other end of the rope to the rear bumper of the plaintiff's truck. Once the plaintiff began cutting the branch, the defendant applied pressure to the rope. The plaintiff was struck and injured by the branch when it broke.

The plaintiff subsequently commenced this action to recover damages for personal injuries against the defendant. Thereafter, the defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. The plaintiff appeals.

"A landowner owes a duty to another on his [or her] land to keep it in a reasonably safe condition, considering all of the circumstances including the purpose of the person's presence and the likelihood of injury" ( Macey v. Truman, 70 N.Y.2d 918, 919, 524 N.Y.S.2d 393, 519 N.E.2d 304 ; see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). "Where an injury results ‘not from any unsafe condition defendant left uncorrected on his [or her] land, but as a direct result of the course plaintiff ... decided to pursue ... the law impose[s] no duty on defendant as landowner to protect plaintiff from the unfortunate consequences of his [or her] own actions’ " ( Marino v. Bingler, 60 A.D.3d 645, 647, 874 N.Y.S.2d 542, quoting Macey v. Truman, 70 N.Y.2d at 919, 524 N.Y.S.2d 393, 519 N.E.2d 304 ; see Poole v. Ogiejko, 62 A.D.3d 977, 977–978, 880 N.Y.S.2d 123 ; Captanian v. Schramm, 33 A.D.3d 834, 835, 823 N.Y.S.2d 217 ). Thus, "in the absence of some showing that defendant's conduct ... was causally related to the accident" ( Macey v. Truman, 70 N.Y.2d at 919, 524 N.Y.S.2d 393, 519 N.E.2d 304 ), the defendant cannot be held liable (see Garvin v. Wojcik, 138 A.D.3d 1488, 1489, 31 N.Y.S.3d 719 ).

Here, the defendant failed to establish his prima facie entitlement to judgment as a matter of law. The...