Marino v. Bingler
| Decision Date | 03 March 2009 |
| Docket Number | 2008-02117. |
| Citation | 2009 NY Slip Op 01623,60 A.D.3d 645,874 N.Y.S.2d 542 |
| Parties | MICHAEL P. MARINO et al., Appellants, v. FRED BINGLER et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants Fred Bingler and Jill Bingler, as parents and legal guardians of Frank Bingler, for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs payable by the defendants Fred Bingler and Jill Bingler to the plaintiffs, and one bill of costs payable by the plaintiffs to the defendants Timothy Peloso and Sharon Peloso.
The plaintiff Michael P. Marino brought this action individually and on behalf of his daughter, the infant Nicole M. Marino (hereinafter together the plaintiffs). Nicole was injured when she was struck in the eye by a paintball fired by Frank "Robbie" Bingler (hereinafter Robbie), the son of the defendants Fred Bingler and Jill Bingler. The incident occurred in a field located on the property of the defendants Timothy Peloso and Sharon Peloso. The plaintiffs alleged that Nicole's injury was caused by the negligent and reckless conduct of Robbie, and the negligence of the Pelosos in permitting a dangerous condition to exist and allowing the use of a dangerous instrumentality on their property. The defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them were granted by the Supreme Court. We modify.
It is undisputed that Nicole fired at least one paintball at Robbie's buttocks while he was urinating, apparently as a joke or prank. There was deposition testimony from several participants that there was a cessation of all paintball activity for up to 10 minutes between the time that Nicole shot Robbie and when the injurious shot was fired. According to Nicole, she was standing in the field with her mask off when she was unexpectedly struck by a number of paintballs fired by Robbie. In contrast, Robbie testified that everyone had put on their masks, and as he was walking into the woods, Nicole began firing upon him, at which time he returned fire, striking Nicole in the eye.
On the issue of primary assumption of risk, the Binglers established, prima facie, their entitlement to judgment as a matter of law by showing...
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...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). Here, the defendant Anna Stamatatos (......
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Fernandez v. Castillo, 2016–13022
...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, ......
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Alfarone v. Robinson, 2010 NY Slip Op 30297(U) (N.Y. Sup. Ct. 1/19/2010)
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