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Calandra v. Marnell

16 A.D.3d 1125 Court N.Y. App. Div. Decision date 2005-03-18 English

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p. 1125
Casey Calandra, Respondent, v Joshua J. Marnell, Appellant.
[790 NYS2d 804]

Appeal from an order of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered July 16, 2004 in a personal injury action. The order denied defendant’s motion seeking summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action alleging that defendant negligently operated a motor vehicle owned by plaintiff in which plaintiff was a passenger and that, as a result of defendant’s negligence, the vehicle “veer[ed] off the road and into a ditch, thus causing injuries to the plaintiff.” Plaintiff fell to the ground upon exiting the vehicle after it came to a complete stop. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Defen

p. 1126
dant contends that he is not liable for the injuries sustained by plaintiff because she was not injured during the accident itself, but rather was injured only after exiting the vehicle. We reject that contention. Even assuming, arguendo, that plaintiff was not injured until she fell to the ground after exiting the vehicle, we nevertheless conclude that there is a triable issue of fact whether plaintiffs fall was “a natural and foreseeable consequence of a circumstance created by defendant” (Kush v City of Buffalo, 59 NY2d 26 , 33 [1983]; see McMorrow v Trimper, 149 AD2d 971 [1989], affd 74 NY2d 830 [1989]; Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d 740 , 741-742 [2003]; Williams v Tennien, 294 AD2d 841 [2002]). Present — Hurlbutt, J.P., Smith, Pine, Lawton and Hayes, JJ.

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