Vogel v Martos Dev., LLC

Vogel v Martos Dev., LLC 2015 NY Slip Op 05756 Decided on July 2, 2015 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 July 2, 2015
Gonzalez, P.J., Sweeny, Renwick, Saxe, Feinman, JJ.
15601 310447/11

[*1] Daniel S. Vogel, et al., Plaintiffs-Appellants,

v

Martos Development, LLC, et al., Defendants-Respondents.

Pollack Pollack Isaac & DeCicco, LLP, New York (Beth S. Gereg of counsel), for appellants.

White Quinlan & Staley, LLP, Garden City (Michael W. Butler of counsel), for respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 9, 2014, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff Daniel Vogel fainted and struck his head against the "ledge" separating the shower stall from the rest of his bathroom, sustaining lacerations to his forehead, face and cornea. Defendants tiled the ledge during renovation work on plaintiff's apartment. Plaintiff, with his wife proceeding derivatively, commenced this action against defendants, alleging that they negligently constructed the shower ledge with a sharp edge.

An issue of fact exists as to whether defendants' negligence was a proximate cause of plaintiff's injuries. A jury could find that plaintiff's fainting and cutting himself on the sharp edge of the ledge was a foreseeable, normal, and natural result of the risk created by defendants' negligence (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316 [1980]; Clindinin v New York City Hous. Auth., 117 AD3d 628, 629 [1st Dept 2014]; Pagan v Goldberger, 51 AD2d 508, 512 [2d Dept 1976]).

Given the evidence of defendant Santiago Martos's participation in deciding whether a border was needed on the ledge, he may be held individually liable, regardless of whether he was acting solely in his capacity as an officer of defendant corporation (see Peguero v 601 Realty Corp., 58 AD3d 556, 558 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 2, 2015

CLERK