Henderson v. L & K Collision Corp.
| Decision Date | 09 January 1989 |
| Citation | 536 N.Y.S.2d 183,146 A.D.2d 569 |
| Parties | Irving HENDERSON, et al., Appellants, v. L & K COLLISION CORP., d/b/a South Shore Collision, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Kelner and Kelner, New York City (David S. Wilde and Joseph Kelner, of counsel), for appellants.
Fleck, Fleck & Fleck, Garden City (Raymond A. Fleck, Jr., on the brief), for respondent.
Before MANGANO, J.P., and THOMPSON, BROWN and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Roncallo, J.), entered December 4, 1987, which denied their motion for partial summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the motion is granted.
The plaintiff Irving Henderson, was injured when an automobile bumper, which had been placed upright against a wall of the defendant L & K Collision Corp.'s garage, suddenly fell, striking his foot and resulting in the partial amputation of his big toe. The accident occurred as the injured plaintiff stood outside the door of the defendant's office discussing with one of the garage employees the body work he wanted performed on his own automobile.
The plaintiffs' complaint alleged that the defendant was negligent in failing to properly secure the bumper which was situated against a wall of the building between the garage door and the office door so as to prevent injuries to its customers. The proof submitted on the plaintiffs' motion for summary judgment established that the injured plaintiff and the defendant's employee were standing about four feet from the building where the six-foot long metal bumper was situated. The plaintiff did not notice the bumper prior to the accident nor did he come into contact with it prior to the injury-causing event. In fact, the defendant's employee acknowledged at his examination before trial that he and the plaintiff were merely standing outside the garage conversing immediately prior to the accident. The defendant's sole submission in opposition was the affirmation of its attorney to which were annexed copies of the examinations before trial of the injured plaintiff and the defendant's employee.
Although negligence cases do not generally lend themselves to resolution by motion for summary judgment because the issue of negligence and the reasonableness of the parties' conduct are questions of...
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