SMITH v. ABC REALTY CO, N.Y. Misc., Judgment, Law, casemine.com

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Attorney(S)

Harold M. Foster, William F. McNulty and Anthony J. McNulty for appellant. Strauss Ferdinand ( David A. Ferdinand of counsel), for respondent.

Judges

MARKOWITZ, J.P. (concurring).

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Smart Summary

Factual and Procedural Background

This opinion arises from an appeal to the Supreme Court, Appellate Term, First Department, from a judgment of the Civil Court of the City of New York, County of New York. The case involves a negligence claim brought by Janet Smith (plaintiff/respondent) against ABC Realty Co. (defendant/appellant). The procedural posture is an appeal from a lower court judgment dismissing the plaintiff's complaint.

Legal Issues Presented

Whether the defendant's negligence constituted the proximate cause of the plaintiff's injuries.
Whether the defendant could have reasonably anticipated the consequences that resulted from the alleged negligent act.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tirado v. Lubarsky, 49 Misc.2d 543, affd. 52 Misc.2d 527	Negligence and proximate cause analysis	Used to support the conclusion that defendant's negligence was not the proximate cause of plaintiff’s injuries.
Levin v. Eleto Realty Corp., 160 Misc. 141	Negligence and proximate cause	Referenced to reinforce the principle that proximate cause requires reasonable foreseeability of harm.
Grant v. Godfrey Nurse Houses, 136 N.Y.S.2d 751	Proximate cause in negligence	Supports the court's finding regarding lack of proximate cause.
Cardona v. Barbat, 56 N.Y.S.2d 451	Proximate cause requirement	Used to affirm the necessity of proximate cause for liability.
Horney v. World Is. Estates, 20 A.D.2d 849, affd. 15 N.Y.2d 564, cert. den. 380 U.S. 987	Foreseeability and proximate cause in negligence	Supports the court’s application of proximate cause principles.
Saugerties Bank v. Delaware Hudson Co., 236 N.Y. 425, 430	Definition of proximate cause and foreseeability	Quoted to emphasize the requirement that the wrongful act be in clear sequence with the result and reasonably anticipated.
Dunn v. State of New York, 29 N.Y.2d 313, 318	Foreseeability in proximate cause	Applied to conclude defendant could not reasonably anticipate the injury.
Cartee v. Saks Fifth Ave., 277 App. Div. 606, 609-610, affd. 303 N.Y. 832	Reasonable anticipation of harm	Referenced in concurrence to support the lack of reasonable foreseeability.
McLeod v. Grant County School Dist. No. 128, 42 Wn.2d 316	Foreseeability in negligence	Referenced in concurrence as analogous authority on foreseeability.
Luce v. Hartman, 6 N.Y.2d 786	Proximate cause and negligence	Referenced in concurrence to affirm the principle applied.

Court's Reasoning and Analysis

The court analyzed whether the defendant's negligence was the proximate cause of the plaintiff's injuries by applying established New York law requiring that the negligent act be in clear sequence with the injury and that the injury be a reasonably foreseeable consequence of the act. Citing multiple precedents, the court emphasized that proximate cause demands reasonable anticipation of the consequences. The facts and circumstances of the record did not support such a finding of proximate cause. The concurring opinion further underscored that the plaintiff’s testimony and police record did not justify a conclusion that the defendant should have reasonably anticipated the injury. Both opinions relied heavily on the foreseeability standard to determine the absence of proximate cause, leading to the reversal of the judgment and dismissal of the complaint.

Holding and Implications

The judgment is reversed, and the complaint is dismissed.

The direct effect of this decision is to relieve the defendant of liability due to lack of proximate cause in the negligence claim. No new legal precedent was established; rather, the court reaffirmed existing principles regarding proximate cause and foreseeability in negligence cases.

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JANET SMITH, Respondent, v. ABC REALTY CO.,fn_ Appellant Names are fictitious for the purposes of publication.

Per Curiam.

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 v. State of New York, 29 N.Y.2d 313, 318). The circumstances presented in the instant record do not warrant such conclusion.

The judgment should be reversed, with $30 costs and complaint dismissed.

MARKOWITZ, J.P. (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.

STREIT and LUPIANO, JJ., concur in Per Curiam opinion; MARKOWITZ, J.P., concurs in memorandum.

Judgment reversed, etc.

SMITH v. ABC REALTY CO