Diaz v. City of New York

Decision Date27 January 1966
Citation25 A.D.2d 430,266 N.Y.S.2d 532
PartiesRaymond 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.
CourtNew 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.

PER CURIAM.

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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6 cases
  • Levy v. Town & Country Summer Day Camp, Inc.
    • United States
    • New York Supreme Court — Appellate Term
    • 30 Noviembre 1970
    ... ... Nov. 30, 1970 ...         Katz & Gantman, New York City (Sidney Advocate, New York City, of counsel), for respondent-appellant ... for lv. to app. den. 12 N.Y.2d 648, 239 N.Y.S.2d 1025, 190 N.E.2d 27; Diaz v. City of N.Y., 25 A.D.2d 430, 266 N.Y.S.2d 532, aff'd 23 N.Y.2d 748, 296 N.Y.S.2d 796, 244 N.E.2d ... ...
  • Griffin v. County of Orange
    • United States
    • New York Supreme Court — Appellate Division
    • 1 Diciembre 1994
    ...by a single, unexpected occurrence (compare, Bua v. South Shore Skating, 193 A.D.2d 774, 598 N.Y.S.2d 75; Diaz v. City of New York, 25 A.D.2d 430, 430-431, 266 N.Y.S.2d 532, aff'd. 23 N.Y.2d 748, 296 N.Y.S.2d 796, 244 N.E.2d Nor can it be said that no reasonable person would consider the ri......
  • Baker v. Eastman Kodak Co.
    • United States
    • New York Supreme Court — Appellate Division
    • 21 Mayo 1970
    ...been anticipated or avoided by the most intensive supervision. The situation is completely similar to the facts in Diaz v. City of New York, 25 A.D.2d 430, 266 N.Y.S.2d 532, affd. 23 N.Y.2d 748, 296 N.Y.S.2d 796, 244 N.E.2d 267, where the court said, 25 A.D.2d at pages 430--431, 266 N.Y.S.2......
  • Nichter v. City of Buffalo
    • United States
    • New York Supreme Court — Appellate Division
    • 28 Marzo 1980
    ...there is no evidence that such failure could have been the proximate cause of infant plaintiff's injuries (see Diaz v. City of New York, 25 A.D.2d 430, 266 N.Y.S.2d 532, affd. 23 N.Y.2d 748, 296 N.Y.S.2d 796, 244 N.E.2d Order unanimously reversed without costs, motion granted and complaint ......
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