Goldstein v. Board of Ed. of Union Free School Dist. No. 23, Town of Hempstead

• Decision Date: 20 December 1965
• Citation: 266 N.Y.S.2d 1,24 A.D.2d 1015
• Parties: Howard A. GOLDSTEIN, by Sidney Goldstein, his guardian ad litem, Sidney Goldstein, individually, Respondents, v. The BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT #23, TOWN OF HEMPSTEAD, Defendant, and Suprina's Sportland, Inc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1

266 N.Y.S.2d 1

24 A.D.2d 1015

Howard A. GOLDSTEIN, by Sidney Goldstein, his guardian ad litem, Sidney Goldstein, individually, Respondents, v. The BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT #23 TOWN OF HEMPSTEAD, Defendant, and Suprina's Sportland, Inc., Defendant-Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 20, 1965.

Reilly & Reilly, New York City, for appellant; Harold V. McCoy, New York City, of counsel.

Speiser, Shumate, Geoghan & krause, New York City, for respondent; Charles F. Krause, New York City, of counsel.

Before UGHETTA, Acting P. J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In a negligence action, defendant Suprina's Sportland, Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County, entered March 22, 1965 upon a jury verdict as awarded damages to the plaintiffs against it.

Judgment, insofar as appealed from, reversed on the law and the facts, without costs, and complaint dismissed.

On May 29, 1961, defendant Suprina's Sportland, Inc. was engaged in installing certain playground equipment on the grounds of the Forest Lake School in Wantagh. One of the pieces of equipment to be installed was a horizontal ladder, consisting of a ladder portion approximately 12 feet long, held in the air by two risers approximately eight feet long. The horizontal ladder weighted between 250 and 300 pounds. When Suprina's employees finished work on May 29th, the horizontal ladder and other playground equipment had been assembled and holes had been dug for their installation. The ladder was lying on its side on the grass at the place where it was to be installed. The following day, May 30th, was Memorial Day, and the children did not attend school, nor did Suprina's employees work. On that day, the infant plaintiff, eight years old, went to the area where the playground equipment was being installed. A number of other children were in the area and the infant plaintiff, together with five to seven other children, attempted to lift the horizontal ladder to an erect position. They managed to raise the ladder to a certain height but it fell back and injured the infant plaintiff. The infant plaintiff was a licensee upon the school property and took the premises as he found them (Krause v. Alper, 4 N.Y.2d 518, 520, 176 N.Y.S.2d 349, 350, 151 N.E.2d 895, 896). Defendant owed him no greater duty than to avoid the maintenance of traps, hidden...