66 N.Y.2d 1026, Solomon by Solomon v. City of New York

• Citation: 66 N.Y.2d 1026, 499 N.Y.S.2d 392
• Party Name: Solomon by Solomon v. City of New York
• Case Date: December 26, 1985
• Court: New York Court of Appeals

Page 1026

66 N.Y.2d 1026

499 N.Y.S.2d 392

Carolyn SOLOMON, an Infant, by Her Father and Natural Guardian, Arthur SOLOMON, et al., Appellants,

v.

CITY OF NEW YORK, Respondent.

New York Court of Appeals

December 26, 1985.

Cheryl Eisberg Moin, for appellants.

Frederick A.O. Schwarz, Jr., Corp. Counsel (Miriam Skolnik, New York City, of counsel), for respondent.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division, 111 A.D.2d 802, 490 N.Y.S.2d 547, should be affirmed, with costs.

To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531, citing Prosser, Torts § 30, at 143 [4th ed.] ). In its proprietory capacity, "a municipality is under a duty to maintain its park and [499 N.Y.S.2d 393] playground facilities in a reasonably safe condition" (Nicholson v. Board of Educ., 36 N.Y.2d 798, 799, 369 N.Y.S.2d 703, 330 N.E.2d 651). This duty "includes not only physical care of the property but also prevention of ultrahazardous and criminal activity of which it has knowledge" (Benjamin v. City of New York, 64 N.Y.2d 44, 46, 484 N.Y.S.2d 525, 473 N.E.2d 753). Bicycle riding on a busy promenade does not rise to the level of "ultrahazardous and criminal" (see, Zarillo v. State of New York, 8 A.D.2d 651, 185 N.Y.S.2d 101, affd. 7 N.Y.2d 943, 198 N.Y.S.2d 314; cf. Benjamin v. City of New York, 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753, supra; Caldwell v. Village of Is. Park, 304 N.Y. 268, 107 N.E.2d 441; Nicholson v. Board of Educ., 36 N.Y.2d 798, 369 N.Y.S.2d 703, 330 N.E.2d 651, supra ). Thus, as a matter of law, the city did not breach its duty to plaintiffs.

Nor has plaintiff stated a cause of action based on the city's alleged failure to enforce the regulations prohibiting bicycle riding in the area where the infant plaintiff was injured. By promulgating and enforcing these regulations, intended for the protection of the general public, defendant did not assume a special relationship toward the infant plaintiff carrying with it a special duty to protect the latter fro the prohibited activity (Sorichetti v. City of New York, 65 N.Y.2d 461, 468, 492 N.Y.S.2d 591, 482 N.E.2d 70; De Long v. County of Erie, 60 N.Y.2d 296, 304, 469...