Fauci v. Milano

• Decision Date: 19 March 1962
• Citation: 15 A.D.2d 939,225 N.Y.S.2d 888
• Parties: Claudia Marie FAUCI, an infant, by her guardian ad litem, Frank J. Fauci, and Frank J. Fauci, individually, respondents, v. Teresa MILANO and Dominic Milano, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 888

225 N.Y.S.2d 888

15 A.D.2d 939

Claudia Marie FAUCI, an infant, by her guardian ad litem, Frank J. Fauci, and Frank J. Fauci, individually, respondents, v. Teresa MILANO and Dominic Milano, Appellants.

Supreme Court, Appellate Division, Second Department.

March 19, 1962.

Spitz & Levine, Poughkeepsie, for appellants; James R. Brown, Jr., Poughkeepsie, of counsel.

Vincent J. Murphy, Pawling, for respondents.

Before BELDOCK, P. J., and KLEINFELD, CHRIST, HOPKINS and UGHETTA, JJ.

MEMORANDUM BY THE COURT.

In an action by an infant to recover damages for personal injuries sustained by her when she fell upon premises owned by the defendants, and by her father to recover damages for medical expenses, the defendants appeal from an order of the Supreme Court, Dutchess County, dated November 3, 1961 and entered November 6, 1961, which denied their motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment dismissing the complaint.

Order reversed, without costs, motion granted, and judgment directed in favor of the defendants dismissing the complaint, without costs.

The complaint and bill of particulars allege that the infant plaintiff was injured while playing with defendants' child, at the invitation of defendants, in and about an excavation and a partially constructed patio wall on defendants' premises, 'although the defendants knew said condition to be dangerous to a child of tender years;' that the defendants were negligent in failing to guard the 'excavation' or to 'warn [said] plaintiff away from said excavation,' although they saw 'plaintiff and others playing, running and climbing about same;' that defendants 'had been told by plaintiff's mother that said wall was dangerous' and that defendants were requested to 'restrain the children, and said plaintiff from playing about same;' that defendants 'knew the condition of said wall and patio and knew said children and plaintiff were about same on the occurrence of the accident and on prior occasions;' and that defendants nevertheless, permitted the infant plaintiff and other children to play about the patio and excavation.

Excerpts from an examination before trial of the infant plaintiff were read in support of defendants' motion for summary judgment. She testified that, while playing 'follow the leader' with other children in the yard of defendants' premises, she was injured when she 'stumbled' in attempting to climb over or jump over a portion of the wall--about to the height of her knees--of the partially completed patio.

The affidavit in opposition, made by an attorney who does not reveal personal knowledge of the facts, is without probative value (Barnet v. Horwitz, 278 App.Div. 700, 103 N.Y.S.2d 105; Cohen v. Pannia, 7 A.D.2d 886, 181 N.Y.S.2d 220).

The so-called doctrine of attractive nuisance does not apply in New York (Morse v. Buffalo Tank Corp., 280 N.Y. 110, 115, 19 N.E.2d 98, 181 N.Y.S.2d 220). A social guest, such as the infant plaintiff here, is viewed in the eyes of the law as a licensee, and must take the premises as he finds them (Krause v. Alper, 4 N.Y.2d 518, 176 N.Y.S.2d 349, 151 N.E.2d 895). The defendants, therefore, owed the infant plaintiff only: (a) the duty to exercise reasonable care to disclose dangerous defects known to them and not likely to be discovered by plaintiff (Bernal v. Baptist Fresh Air Home Soc., 275 App.Div. 88, 96, 87 N.Y.S.2d 458, affd. 300 N.Y. 486, 88 N.E.2d 720; Krause v. Alper [supra]); and (b) the duty 'to abstain from inflicting intentional, wanton, or willful injuries' (Mendelowitz v. Neisner, 258 N.Y. 181, 184, 179 N.E. 378,...