Cohen v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BROWN
• Citation: Cohen v. City of New York, 513 N.Y.S.2d 459, 128 A.D.2d 748 (N.Y. App. Div. 1987)
• Decision Date: 23 March 1987
• Parties: Kenneth COHEN, Plaintiff-Respondent, v. CITY OF NEW YORK, et al., Defendants-Respondents, Parents Without Partners, Appellant.

Page 459

513 N.Y.S.2d 459

128 A.D.2d 748

Kenneth COHEN, Plaintiff-Respondent, v. CITY OF NEW YORK, et al., Defendants-Respondents Parents Without Partners, Appellant.

Supreme Court, Appellate Division Second Department.

March 23, 1987.

Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, New York City (Eugene A. Ward, of counsel), for appellant.

Bruce E. Reznick, Brooklyn (Bernard Mitchell Alter, of counsel), for plaintiff-respondent.

Before BROWN, J.P., and LAWRENCE, EIBER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendant Parents Without Partners appeals from an order of the Supreme Court, Kings County (Duberstein, J.), dated July 14, 1986, which denied its cross motion for summary judgment dismissing the plaintiff's complaint insofar as it is asserted against it and any cross claims against it.

ORDERED that the order is reversed, on the law, with costs payable by the plaintiff, the cross motion is granted, and the plaintiff's complaint insofar as it is asserted against the remaining defendants and any remaining cross claims are severed.

The plaintiff, on his way to a dance sponsored and run by the appellant, parked his car in a parking lot owned by the City of New York. Upon getting out of his car, the plaintiff fell on ice in the lot. The plaintiff's complaint alleges that the appellant was negligent in that, knowing of the icy condition of the lot, it did not close the lot, post signs or warnings of that condition or urge the city to correct the condition. The complaint further alleged that the appellant was responsible for the ownership, operation, maintenance and management and control of the lot, which was open to the public.

The appellant made a prima facie showing that it owed no duty to the plaintiff.

The plaintiff states in his complaint that the defendant city owned the lot. The affidavits of the appellant show that it had no connection with the lot's operation, maintenance, management and control. These assertions are supported by the testimony of the defendant city's parks department supervisor who said that snow and ice removal at the lot had been conducted by parks department employees (see, Kimbar v. Estis, 1 N.Y.2d 399, 403, 153 N.Y.S.2d 197, 135 N.E.2d 708; Hellyer v. Law Capital, Inc., 124 A.D.2d 782, 508 N.Y.S.2d 501; Clayton v. Monaco, 24 Misc.2d 27, 203 N.Y.S.2d 624).

Once a defendant has made a prima facie showing that the cause of action has...