Gordon v. Muchnick

• Decision Date: 18 February 1992
• Citation: 579 N.Y.S.2d 745,180 A.D.2d 715
• Parties: Lena GORDON, Appellant, v. Dorothy MUCHNICK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 745

579 N.Y.S.2d 745

180 A.D.2d 715

Lena GORDON, Appellant, v. Dorothy MUCHNICK, Respondent.

Supreme Court, Appellate Division,

Second Department.

Feb. 18, 1992.

Stuart M. Rissoff, Bellmore, for appellant.

Steven J. Smetana, New York City (Marie A. Castronuovo, of counsel), for respondent.

Before THOMPSON, J.P., and SULLIVAN, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Dunkin, J.), dated December 19, 1989, which, upon a ruling granting the defendant's motion for judgment as a matter of law, made at the close of the trial evidence, is in favor of the defendant and against her.

ORDERED that the judgment is reversed, on the law, with costs, and a new trial is granted, with costs to abide the event.

To prove a prima facie case of negligence, the plaintiff must establish the existence of a duty on the defendant's part to the plaintiff, the breach of the duty, and that the breach of the duty was a proximate cause of an injury to the plaintiff (see, Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531). Absent a duty of care, there can be no breach and no liability. Although the court, as a threshold matter, must decide whether one party owes a duty of care to another where the facts are undisputed and but one inference may be drawn, the question of duty is not for the court as a matter of law where the facts are disputed (see, Fellis v. Old Oaks Country Club, Inc., 163 A.D.2d 509, 558 N.Y.S.2d 183; cf., Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Donohue v. Copiague Union Free School Dist., 64 A.D.2d 29, 33, 407 N.Y.S.2d 874, affd. 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 [where facts undisputed, duty held a question of law for the court]. Further, although initially there may be no duty, a person may voluntarily assume a duty (see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451; Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763; Parvi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960). However, the courts have held that gratuitous conduct may give rise to liability only when the defendant's affirmative action adversely affected the plaintiff and the defendant failed to act reasonably (see, Nallan v. Helmsley-Spear, Inc., supra; McIntosh v. Moscrip, 138 A.D.2d 781, 525 N.Y.S.2d 420). Once a duty is found to exist, the question of whether the defendant breached that duty is generally a question of fact for the jury (see, Florence v. Goldberg, supra; Kaplan v. Dart Towing, 159 A.D.2d 610, 552 N.Y.S.2d 665).

In the present case, we find that the trial...