Petruzzi v New York Mercantile Exch., Inc.

[*1] Petruzzi v New York Mercantile Exch., Inc. 2005 NY Slip Op 52044(U) [10 Misc 3d 132(A)] Decided on December 14, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: DECEMBER 14, 2005 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT December 2005 Term McCooe, J.P., Davis, Gangel-Jacob, JJ.
570613/05

PHILIP PETRUZZI AND JOAN PETRUZZI, Plaintiffs-Respondents, No.

against

NEW YORK MERCANTILE EXCHANGE, INC., Defendant-Appellant, -and- COMMODITIES EXCHANGE, INC., Defendant.

Defendant New York Mercantile Exchange, Inc. appeals from an order of the Civil Court, New York County (Matthew F. Cooper, J.), entered September 21, 2004, which denied its motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Matthew F. Cooper, J.), entered September 21, 2004 affirmed, with $10 costs.

Plaintiff, a commodities trader in the New York Mercantile Exchange, was allegedly injured when he, along with several other traders, was "knocked backwards" out of a trading floor pit or "ring," due to an overcrowded condition of which defendant had prior notice. Plaintiff maintains that defendant permitted a dangerous condition to exist on the premises, i.e, the routinely overcrowded pit or "ring" which was insufficient to handle the volume of traders generally present.

We agree that defendant failed to establish as a matter of law that it maintained the property in a reasonably safe manner and that it did not create a dangerous condition which posed a foreseeable risk of injury to individuals expected to be present on the premises (see Tagle v. Jakob, 97 NY2d 165 [2001]; Basso v. Miller, 40 NY2d 233 [1976]). Triable issues of [*2]fact exist as to whether plaintiff was unable to find a place of safety and/or whether his free movement was restricted due to the alleged overcrowded condition (cf. Palmieri v. Ringling Brother and Barnum and Bailey Combined Shows Inc., 237 AD2d 589 [1997]).

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: December 14, 2005