71 Misc. 2d 384 | N.Y. App. Term. | 1972
Lead Opinion
The defendant’s negligence was not the proximate cause of the plaintiff’s injuries (Tirado v. Lubarsky, 49 Misc 2d 543, affd. 52 Misc 2d 527; Levin v. Eleto Realty Corp., 160 Misc. 141; Grant v. Godfrey Nurse Houses, 136 N. Y. S. 2d 751; Cardona v. Barbat, 56 N. Y. S. 2d 451; Horney v. World Is. Estates, 20 A D 2d 849, affd. 15 N Y 2d 564, cert. den. 380 U. S. 987). It has been repeatedly observed that “ The act of a party sought to be charged is not to be regarded as a proximate cause unless it is in clear sequence with the result and unless it could have been reasonably anticipated that the consequences complained of would result from the alleged wrongful act ” (Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425, 430; Dunn
The judgment should be reversed, with $30 costs and complaint dismissed.
Concurrence Opinion
(concurring). The circumstances leading to plaintiff’s injuries shown by her testimony and the police record did not justify a finding that defendant should have reasonably anticipated that the consequences complained of by plaintiff would result from defendant’s negligent act (Dunn v. State of New York, 29 N Y 2d 313, 318; Cartee v. Saks Fifth Ave., 277 App. Div. 606, 609-610, affd. 303 N. Y. 832; Tirado v. Lubarsky, 49 Misc 2d 543, affd. 52 Misc 2d 527; Levin v. Eleto Realty Corp., 160 Misc. 141, revg. 157 Misc. 180; see, also, McLeod v. Grant County School Dist. No. 128, 42 Wn. 2d 316; Saugerties Bank v. Delaware and Hudson Co., 236 N. Y. 425, 430; Luce v. Hartman, 6 N Y 2d 786).
In this posture of the record, I concur in the result reached by this court.
Street and Lupia wo, JJ., concur in Per Curiam opinion; Markowitz, J. P., concurs in memorandum.
Judgment reversed, etc.