Horn v. Hires

• Decision Date: 17 May 2011
• Citation: 2011 N.Y. Slip Op. 04205,924 N.Y.S.2d 411,84 A.D.3d 1025
• Parties: Kimberly HORN, respondent,v.Herman HIRES, appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1025
924 N.Y.S.2d 411
2011 N.Y. Slip Op. 04205

Kimberly HORN, respondent,
v.
Herman HIRES, appellant.

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

May 17, 2011.

[924 N.Y.S.2d 412]

Michael P. Mangan, LLC, New York, N.Y., for appellant.Ferro, Kuba, Mangano, Sklyar, P.C., New York, N.Y. (Kenneth E. Mangano and Michael N. Manolakis of counsel), for respondent.JOSEPH COVELLO, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

[84 A.D.3d 1025] In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated March 1, 2010, which denied his motion, in effect, for summary judgment dismissing the complaint.

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

The plaintiff tenant alleged that she was boiling water on all four burners of the stove in her leased apartment because the defendant landlord failed to provide any heat or hot water. When the plaintiff attempted to rise from her chair, her chair struck the stove, causing the boiling water from two of the pots on the range to spill and fall on her.

The defendant established his entitlement to judgment as a matter of law dismissing the complaint by establishing, prima facie, that his alleged negligence in failing to provide heat and hot water was not a proximate cause of the accident. The plaintiff's injuries would not have resulted from the failure to [84 A.D.3d 1026] supply heat and hot water, and cannot be classified as injuries normally to have been expected to ensue from the defendant's conduct ( see Martinez v. Lazaroff, 48 N.Y.2d 819, 820, 424 N.Y.S.2d 126, 399 N.E.2d 1148; Hoang v. Man Chong Wong, 49 A.D.3d 694, 853 N.Y.S.2d 654; Wells v. Finnegan, 177 A.D.2d 893, 894, 576 N.Y.S.2d 653; Laureano v. Louzoun, 165 A.D.2d 866, 867, 560 N.Y.S.2d 337).

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff raised new theories of liability for the first time in opposition to the motion which should not have been considered in light of the plaintiff's protracted delay in presenting those new theories ( see Gallello v. MARJ Distribs., Inc., 50 A.D.3d 734, 736, 855 N.Y.S.2d 602; Medina v. Sears, Roebuck & Co., 41 A.D.3d 798, 799–800, 839 N.Y.S.2d 162; Comsewogue Union Free School Dist. v. Allied–Trent Roofing Sys., Inc., 15 A.D.3d 523, 524, 790...