judgment dismissing claim in New York

1954(Appeal from a judgment dismissing a claim for damages for personal injuries alleged to have been sustained by claimant by reason of the negligent condition of State highway.) Present — McCum, P. J., Vaughan, Kimball, Piper and Wheeler, JJ. [ 204 Misc. 270 .] [See post, p. 1001.]

1954(Appeal from a judgment dismissing a claim for damages for personal injuries alleged to have been sustained by claimant by reason of the negligent condition of State highway.) Present — McCum, P. J., Vaughan, Kimball, Piper and Wheeler, JJ. [ 204 Misc. 270 .] [See post, p. 1001.]

2011Because I believe that a fair interpretation of the evidence, including the expert testimony, supports the Court of Claims’ determination that Joseph’s assault on Ms. Williams was too remote in time to be proximately caused by the State’s negligence in allowing him to elope almost two years earlier (see Watts v State of New York, 25 AD3d 324 [2006]), I respectfully dissent and would affirm the judgment dismissing the claim.

2008More recently, in Hunt v State of New York ( 36 AD3d 511 [2007]), the First Department reversed a judgment dismissing a claim brought by a former inmate who was sexually assaulted after court officers failed to alert DOCS of a judge’s directive that the claimant be held in protective custody.

2004We conclude that claimants failed to meet their burden on their cross motion because the evidence submitted by them in support thereof does not establish as a matter of law that the State’s snowplow operator acted in reckless disregard for the safety of others (see generally Wilson v State of New York, 269 AD2d 854 [2000], affd sub nom.

2003We exercise our discretion to treat the appeal as taken from the judgment dismissing the claim, entered after claimant took an appeal from the decision of the Court of Claims (see CPLR 5520 [c]; Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]).

1998On appeal from a judgment rendered after a nonjury trial, the Appellate Division “may render the judgment it finds warranted by the facts, taking into account in a close case ‘the fact that the trial judge had the advantage of seeing the witnesses’ ” (Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492, 499 ; see, Walsh v State of New York, 232 AD2d 939, 940 ; Lewis v State of New York, 223 AD2d 800, 801 ).

1992Farmers Exch. v AG Assets, 168 AD2d 822 [1990]).

1990When a party moves pursuant to CPLR 3211 (a) (5) for a judgment dismissing a claim on the ground that it is barred by the Statute of Limitations, it is that party’s burden initially to establish the affirmative defense by prima facie proof that the Statute of Limitations had elapsed (see, Doyon v Bascom, 38 AD2d 645, 645-646 ).

1985On appeal by the estates from the portion of the judgment dismissing its claim against Palmier, the Appellate Division unanimously affirmed, concluding that the evidence was sufficient to support the jury's determination that Colon had been operating the vehicle without Palmier's consent ( Morris v Palmier Oil Co. , supra ).

1985On appeal by the estates from the portion of the judgment dismissing its claim against Palmier, the Appellate Division unanimously affirmed, concluding that the evidence was sufficient to support the jury’s determination that Colon had been operating the vehicle without Palmier’s consent (Morris v Palmier Oil Co., supra).

1977While it is clear that the State has a duty to take every precaution to protect its hospital patients from injury, self-inflicted or otherwise, and the degree of such care is measured by the patients’ physical and mental illness as known to the hospital officials and employees, it is not an insurer of their safety and there is no requirement that their activities be monitored 24 hours per day (Hirsh v State of New York, 8 NY2d 125 ; Hernandez v State of New York, 46 AD2d 712 ; Castiglione v State of New York, 25 AD2d 895 ).

1977While it is clear that the State has a duty to take every precaution to protect its hospital patients from injury, self-inflicted or otherwise, and the degree of such care is measured by the patients’ physical and mental illness as known to the hospital officials and employees, it is not an insurer of their safety and there is no requirement that their activities be monitored 24 hours per day (Hirsh v State of New York, 8 NY2d 125 ; Hernandez v State of New York, 46 AD2d 712 ; Castiglione v State of New York, 25 AD2d 895 ).

1977While it is clear that the State has a duty to take every precaution to protect its hospital patients from injury, self-inflicted or otherwise, and the degree of such care is measured by the patients’ physical and mental illness as known to the hospital officials and employees, it is not an insurer of their safety and there is no requirement that their activities be monitored 24 hours per day (Hirsh v State of New York, 8 NY2d 125 ; Hernandez v State of New York, 46 AD2d 712 ; Castiglione v State of New York, 25 AD2d 895 ).

1975Certainly, a prior judgment dismissing a claim as barred by the Statute of Limitations may be considered to be on the merits as to the precise issue decided therein (see Spindell v Brooklyn Jewish Hosp., 35 AD2d 962 , affd 29 NY2d 888 ).

1975Certainly, a prior judgment dismissing a claim as barred by the Statute of Limitations may be considered to be on the merits as to the precise issue decided therein (see Spindell v Brooklyn Jewish Hosp., 35 AD2d 962 , affd 29 NY2d 888 ).

1963(Farber v. Olkon, 40 Cal. 2d 503 ; Restatement, Torts, § 59.) The judgment dismissing the claim should be affirmed, without costs.

1961The Pennsylvania Supreme Court has recently decided that to hold otherwise “ would open a Pandora’s box.” (Bosley v. Andrews, 393 Pa. 161, 168 .) In my view the judgment dismissing the claim should be affirmed.

1952(See Shaw v. State of New York, 303 N. Y. 644 .) (Appeal from a judgment dismissing a claim against the State of New York, for negligent condition of State highway.) Present — Taylor, P. J., MeCurn, Kimball, Piper and Wheeler, JJ.

1950(Appeal from a judgment dismissing a claim for damages for the death of plaintiff’s intestate, alleged to have resulted by reason of negligent condition of State Park.) Present — Taylor, P. J., McCurn, Love, Kimball and Piper, JJ. [ 198 Misc. 31 .]

1939The judgment dismissing the claim was reversed by the Appellate Division, upon the law, and the claim was remitted to the Court of Claims for a new trial ( 256 App. Div. 141 ).

1937(Nicholson v. Town of Stillwater, 208 N. Y. 203 ; Flansburg v. Town of Elbridge, 205 id. 423; Roberts v. Town of Eaton, 238 id. 420; Cotriss v. State of New York, 223 App. Div. 520 .) The judgment dismissing the claim should be reversed and the matter remitted to the Court of Claims for the purpose of fixing compensation.

1937(Nicholson v. Town of Stillwater, 208 N. Y. 203 ; Flansburg v. Town of Elbridge, 205 id. 423; Roberts v. Town of Eaton, 238 id. 420; Cotriss v. State of New York, 223 App. Div. 520 .) The judgment dismissing the claim should be reversed and the matter remitted to the Court of Claims for the purpose of fixing compensation.

1930(Baxter v. McDonnell, 154 N. Y. 432 .) The first separate defense sets forth the judgment dismissing the defense in the prior action.

1928(Corcoran v. City of New York, 188 N. Y. 131 ; Best v. State of New York, 203 App. Div. 339 ; affd., 236 N. Y. 662 .) All that was required of it was that it should erect such a railing, if any, as would be a sufficient protection for travel generally. “ The town was not bound to exercise extraordinary care to guard against unusual accidents. ‘ The limit of duty on the part of a town with regard to the condition of its highways falls far short of making them absolutely safe, under all circumstances, even for those who use them properly.’ (Lane v. Town of Hancock, 142 N. Y. 510, 521 .) ” In Bes