C. B. v. Inc. Vill. of Garden City
| Decision Date | 19 May 2021 |
| Docket Number | 2018-05101 ,Index No. 12108/10 |
| Citation | 149 N.Y.S.3d 465,194 A.D.3d 897 |
| Parties | C. B., etc., et al., appellants, v. INCORPORATED VILLAGE OF GARDEN CITY, et al., respondents, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
194 A.D.3d 897
149 N.Y.S.3d 465
C. B., etc., et al., appellants,
v.
INCORPORATED VILLAGE OF GARDEN CITY, et al., respondents, et al., defendants.
2018-05101
Index No. 12108/10
Supreme Court, Appellate Division, Second Department, New York.
Argued—March 25, 2021
May 19, 2021
Steven L. Salzman, P.C., New York, N.Y. (David S. Gould of counsel), for appellants.
Cullen and Dykman, LLP, New York, N.Y. (Diana Neyman of counsel), for respondents Incorporated Village of Garden City, Incorporated Village of Garden City Recreation Department, and Tullamore Park.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum and Joel A. Sweetbaum ], of counsel), for respondent Brian Tully.
WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered February 6, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants Incorporated Village of Garden City, Incorporated Village of Garden City Recreation Department, and Tullamore Park which was for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the cross motion of the defendant Brian Tully which was for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendant Brian Tully which was for summary judgment dismissing the complaint insofar as asserted against him, and substituting therefor a provision denying that branch of his cross motion; as so modified, the order is affirmed insofar as
appealed from, with one bill of costs to the plaintiffs payable by the defendant Brian Tully, and one bill of costs to the defendants Incorporated Village of Garden City, Incorporated Village of Garden City Recreation Department, and Tullamore Park payable by the plaintiffs.
In 2009, the then 2–year–old infant plaintiff allegedly was injured when he was struck by a bicycle ridden by the defendant Brian Tully's son, who was then 2½ years old. The incident occurred inside an enclosed playground area for younger children located in the defendant Tullamore Park in the defendant Incorporated Village
of Garden City. Tully was not present at the time of the accident. The defendant Lolita Bhawanie was charged with caring for Tully's son at that time.
The infant plaintiff, by his mother, and his mother suing derivatively, commenced this action to recover damages for personal injuries against the Village, the Incorporated Village of Garden City Recreation Department, Tullamore Park (hereinafter collectively the municipal defendants), Tully, and Bhawanie, among others. The municipal defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and Tully cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court granted those branches of the motion and cross motion, and the plaintiffs appeal.
The Supreme Court properly granted that branch of the municipal defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. A municipality has a duty to maintain its parks and playgrounds in a reasonably safe condition (see Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 ; Nicholson v. Board of...
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