Canela v. Audobon Gardens Realty Corp.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Milano, J.), entered January 29, 2002, which granted the defendant’s motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment on the issue of liability. Ordered that the order is modified, on the law, by deleting the provision thereof granting the defendant’s motion and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiff. Juan Canela (hereinafter the decedent) came home at 5:00 a.m. in an intoxicated state. When he arrived at the apartment building where he lived, he climbed two flights of exterior stairs to reach the landing on which the outside door of the building was located. Once there, he sat on the parapet wall that surrounded the landing, leaned against the building, fell asleep, and fell or rolled off the wall, sustaining catastrophic injuries. The wall he sat on was 2 feet, 4 inches high and IV2 feet wide. The plaintiff, Isabel Canela, administratrix of the estate of Juan Canela, contends that the defendant, the owner of the building, was negligent in constructing the wall only 28 inches high when section 62 (1) of the Multiple Dwelling Law and sections 27-376 and 27-369 of the Administrative Code of the City of New York require parapets like the one at issue here be at least 3 feet, 6 inches (42 inches) high. The defendant sought summary judgment on the ground that the plaintiff cannot, as a matter of law, establish that the defendant’s alleged negligence was a proximate cause of the decedent’s injuries. The defendant also alleged that the decedent’s own reckless conduct constituted an unforeseeable superseding event that severed the causal connection between his injuries and any negligence on the part of the defendant. As a general rule, proximate cause is a question to be decided by the finder of fact (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). “It is well settled that because the determination of legal causation turns upon questions of foreseeability, and ‘what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve’ ” (Kriz v Schum, 75 NY2d 25, 34 [1989], quoting Derdiarian v Felix Contr. Corp., supra at 315). To show that a defendant’s negligence substantially caused the events which produced the injury, a plaintiff does not have to show that the exact manner in which the accident happened was foreseeable (see Derdiarian [703] v Felix Contr. Corp., supra at 315). The use, as a bench, of a low, wide wall on which a person can readily sit down after climbing two flights of stairs is not unforeseeable, and reasonable minds could differ as to the extent, if any, that such a low nonconforming structure contributed to the incident. Furthermore, the decedent’s conduct was not so extraordinary or unforeseeable as to constitute a superseding event that severs the causal connection between the defendant’s alleged negligence and the decedent’s injuries, but rather, is an element of comparative negligence (see Roach v Szatko, 244 AD2d 470 [1997]; Kriz v Schum, supra). The remaining contentions of the parties are without merit. Krausman, J.P., Schmidt and Mastro, JJ., concur.