Johnson v. Harrington

Cardona, P. J. (dissenting).

I respectfully dissent. In light of the decisions of the Court of Appeals in diving cases (see, e.g., Kriz v Schum, 75 NY2d 25; Denkensohn v Davenport, 75 NY2d 25), I must conclude that Supreme Court properly denied defendants’ motion. In reaching this conclusion, it is emphasized that this case is before this Court in the posture of a summary judgment motion. Thus, for defendants to prevail, they were required to establish as a matter of law that the conduct of plaintiff Scott Johnson (hereinafter plaintiff) was reckless or that it was the superseding cause of his…