Malleret v Federal Express Corp.

Malleret v Federal Express Corp. 2012 NY Slip Op 08226 Decided on November 29, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 29, 2012
Andrias, J.P., Saxe, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
8414 106300/09

[*1]Sophie Malleret, Plaintiff-Appellant,

v

Federal Express Corporation, et al., Defendants-Respondents, HLR Service Corporation, Defendant. [And A Third-Party Action]




Gary B. Pillersdorf & Associates, P.C., New York (Andrew H.
Pillsersdorf of counsel), for appellant.
Kaplan, Massamilo & Andrews, LLC, New York (Daniela
Jampel of counsel), for respondents.

Order, Supreme Court, New York County (George J. Silver, J.), entered June 14, 2011, which, insofar as appealed from, granted the cross motion of defendants Federal Express Corporation and Jeremy Carter for summary judgment dismissing so much of the complaint as asserted damages resulting from injuries sustained in the March 29, 2008 accident, unanimously reversed, on the law, without costs, and the cross motion denied.

On February 8, 2008, plaintiff pedestrian sustained injuries, including head trauma, as a result of being struck by defendants' truck. Subsequently, on March 29, 2008, plaintiff was again injured when, while visiting an art gallery, she became dizzy and fell from a seven-foot-high loft to the concrete floor below. The record shows that after being struck by defendants' vehicle, but prior to the March 2008 incident, plaintiff had suffered episodes of dizziness and disorientation.

The record presents a triable issue of fact as to whether plaintiff's conduct of ascending the loft despite having episodes of dizziness constituted a superseding cause of the ultimate injuries she sustained from the March 29, 2008 accident. It cannot be said, as a matter of law, that plaintiff's conduct was so reckless that it necessarily constituted the sole legal cause of her [*2]ultimate injuries, breaking the chain of causation from the first accident (see Soto v New York City Tr. Auth., 6 NY3d 487, 492 [2006]; cf. Tkeshelashvili v State of New York, 18 NY3d 199, 206 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 29, 2012

CLERK