Benjamin by Benjamin v. City of New York

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM; COOKE; COOKE
Citation473 N.E.2d 753,484 N.Y.S.2d 525,64 N.Y.2d 44
Parties, 473 N.E.2d 753 James C. BENJAMIN, an Infant, by his Mother and Natural Guardian, Dorothy BENJAMIN, et al., Appellants, v. CITY OF NEW YORK, Respondent.
Decision Date18 December 1984

Page 525

484 N.Y.S.2d 525
64 N.Y.2d 44, 473 N.E.2d 753
James C. BENJAMIN, an Infant, by his Mother and Natural
Guardian, Dorothy BENJAMIN, et al., Appellants,
v.
CITY OF NEW YORK, Respondent.
Court of Appeals of New York.
Dec. 18, 1984.

Ignatius John Melito, Thomas R. Newman and Terry D. Horner, New York City, for appellants.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (John R. Hupper, Jr., New York City, of counsel), for respondent.

OPINION OF THE COURT

PER CURIAM.

During the afternoon of June 17, 1974, plaintiffs and other children were playing softball on a vacant, City-owned lot between two buildings. One of the other boys obtained a can of lacquer from a nearby van, poured the lacquer into a metal pipe, and then started a fire. As plaintiffs gathered to watch, an explosion occurred and plaintiffs were seriously burned. They commenced this action for damages against

Page 526

the City, alleging that it breached its duty to keep the lot reasonably safe by failing to take adequate precautions to minimize the danger to children posed by rubbish fires which, according to some witnesses, occurred from time to time on the property and were on occasion extinguished by City fire fighters. The jury returned a verdict in plaintiffs' favor but the Appellate Division unanimously reversed, on the law, and dismissed the complaint, holding that the evidence established neither a duty nor proximate cause.

A municipality's duty to maintain its parks in reasonably safe condition includes not only physical care of the property but also prevention of ultrahazardous and criminal activity of which it has knowledge (Rhabb v. New York City Housing Auth., 41 N.Y.2d 200, 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335). Accordingly, we have recognized a duty to prevent the foreseeable continuation of activity such as the discharge of fireworks (Caldwell v. Village of Is. Park, 304 N.Y. 268, 275, 107 N.E.2d 441; see, also, Nicholson v. Board of Educ., 36 N.Y.2d 798, 369 N.Y.S.2d 703, 330 N.E.2d 651). Even if we were to assume that the vacant lot involved here can be likened to a park in view of its use by children for play, the condition complained of cannot be analogized to the ultrahazardous, illegal activity necessary for imposition of a duty on a municipality. Occasional rubbish fires on a vacant lot, the scope of which is readily observable even to school-age children, are not of such a nature as to require the City to provide supervision or construct a locked fence, as suggested by plaintiffs. Finding no duty, we do not reach the issue of causation.

Accordingly, the order of the Appellate Division, 99 A.D.2d 995, 473 N.Y.S.2d 450 (1984), should be affirmed, with costs.

COOKE, Chief Judge (dissenting).

Because I cannot agree that, as a matter of law, the City met its duty to keep the lot in a reasonably safe condition, I respectfully dissent.

The pivotal issue before this court is whether the Appellate Division correctly concluded that the verdict in favor of plaintiffs was not supported by sufficient evidence (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 497, 410 N.Y.S.2d 282, 382 N.E.2d 1145). On this review, then, the evidence must be viewed in the light most favorable to plaintiffs to determine if there was any rational basis upon which the jury could have found liability (see id., at p. 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Rhabb v. New York City Housing Auth., 41 N.Y.2d 200, 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335).

There...

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27 practice notes
  • Giaccotto v. New York City Transit Authority
    • United States
    • United States State Supreme Court (New York)
    • 17 Diciembre 1990
    ...to plaintiff was proximately caused by the breach. Benjamin v. City of New York, 99 A.D.2d 995, 473 N.Y.S.2d 450, aff'd, [150 Misc.2d 167] 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753 (1984). The Transit Authority does not dispute that it has a duty to use reasonable care in maintaining t......
  • C. B. v. Inc. Vill. of Garden City, 2018-05101
    • United States
    • New York Supreme Court Appellate Division
    • 19 Mayo 2021
    ..." ( Solomon v. City of New York, 66 N.Y.2d at 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294, quoting Benjamin v. City of New York, 64 N.Y.2d 44, 46, 484 N.Y.S.2d 525, 473 N.E.2d 753 ). Here, the plaintiffs take no issue with the physical care of the property. As we have previously held, &quo......
  • Nicastro v. Park
    • United States
    • New York Supreme Court Appellate Division
    • 12 Noviembre 1985
    ...leads to a directed verdict terminating the action without resubmission of the case to a jury (see, e.g., Benjamin v. City of New York, 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753; Licari v. Elliott, supra, 57 N.Y.2d at pp. 239-240, 455 N.Y.S.2d 570, 441 N.E.2d The criteria for setting a......
  • Rosario by Vasquez v. City of New York
    • United States
    • New York Supreme Court Appellate Division
    • 9 Enero 1990
    ...1294), nor do rubbish fires in a lot where children routinely play (Benjamin v. City of New York, 99 A.D.2d 995, 473 N.Y.S.2d 450, affd. 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d In the matter under review, it cannot be said that the dangerous and aggressive conduct of the ten-year-old Din......
  • Request a trial to view additional results
27 cases
  • Giaccotto v. New York City Transit Authority
    • United States
    • United States State Supreme Court (New York)
    • 17 Diciembre 1990
    ...to plaintiff was proximately caused by the breach. Benjamin v. City of New York, 99 A.D.2d 995, 473 N.Y.S.2d 450, aff'd, [150 Misc.2d 167] 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753 (1984). The Transit Authority does not dispute that it has a duty to use reasonable care in maintaining t......
  • C. B. v. Inc. Vill. of Garden City, 2018-05101
    • United States
    • New York Supreme Court Appellate Division
    • 19 Mayo 2021
    ..." ( Solomon v. City of New York, 66 N.Y.2d at 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294, quoting Benjamin v. City of New York, 64 N.Y.2d 44, 46, 484 N.Y.S.2d 525, 473 N.E.2d 753 ). Here, the plaintiffs take no issue with the physical care of the property. As we have previously held, &quo......
  • Nicastro v. Park
    • United States
    • New York Supreme Court Appellate Division
    • 12 Noviembre 1985
    ...leads to a directed verdict terminating the action without resubmission of the case to a jury (see, e.g., Benjamin v. City of New York, 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753; Licari v. Elliott, supra, 57 N.Y.2d at pp. 239-240, 455 N.Y.S.2d 570, 441 N.E.2d The criteria for setting a......
  • Rosario by Vasquez v. City of New York
    • United States
    • New York Supreme Court Appellate Division
    • 9 Enero 1990
    ...1294), nor do rubbish fires in a lot where children routinely play (Benjamin v. City of New York, 99 A.D.2d 995, 473 N.Y.S.2d 450, affd. 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d In the matter under review, it cannot be said that the dangerous and aggressive conduct of the ten-year-old Din......
  • Request a trial to view additional results

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