Diaz v. City of New York
Decision Date | 27 January 1966 |
Citation | 25 A.D.2d 430,266 N.Y.S.2d 532 |
Parties | Raymond DIAZ, an infant, by his Guardian ad Litem, Modesto Diaz, and Modesto Diaz, Plaintiffs-Respondents-Appellants, v. The CITY OF NEW YORK and Edenwald Contracting Co., Inc., Defendants-Appellants- Respondents. |
Court | New York Supreme Court — Appellate Division |
G. Sassower, New York City, for plaintiffs-respondents-appellants.
William M. Murphy, W. F. Larkin, New York City, for defendants-appellants-respondents.
Before RABIN, J. P., and McNALLY, STEVENS, STEUER and WITMER, JJ.
Judgment in favor of the plaintiffs entered on the jury verdicts unanimously modified on the law and the facts to dismiss the complaint against the City of New York and the crossclaim of the City of New York against the contractor Edenwald, and otherwise affirmed, with $50 costs to the prevailing parties, except that no costs are awarded Edenwald against the City. This action is to recover damages for injuries suffered by, and to recover medical expenses incurred in behalf of, the 6-year-old infant plaintiff when he fell from the sixth step of the ladder of an eight step high 'sliding pond', as the result of a push in the stomach by the boy above him on the steps of the slide, in a playground area of a nearly completed park. There was no evidence nor contention that the sliding pond was defective or inherently dangerous; and liability of the City was predicated solely upon lack of supervision. On July 12, 1961, the day before the park was turned over to the City by the contractors as completed the infant plaintiff went to the area with his mother and little sister at about 5 o'clock P.M., and he was under his mother's supervision. She was only 35 feet from him when he was injured. He testified that when he was on the sliding pond steps he was pushed only on the one occasion when he fell. There was no credible evidence of conduct at the slide which reasonable supervision would have corrected. In other words, there was no showing that lack of supervision was the proximate cause of the accident. (Ohman v. Board of Education of City of N. Y., 300 N.Y. 306, 310, 90 N.E.2d 474, 475; Munson v. Board of Education of Central School District No. 1 of the Towns of Westport et al., 17 A.D.2d 687, 230 N.Y.S.2d 919, affd. 13 N.Y.2d 854, 242 N.Y.S.2d 492, 192 N.E.2d 272; Bennett v. Board of Education of the City of N. Y., 16 A.D.2d 651, 226 N.Y.S.2d 593, affd. 13 N.Y.2d 1104, 246 N.Y.S.2d 634, 196 N.E.2d 268,...
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