J.R. v. City of N.Y.

• Decision Date: 27 March 2019
• Docket Number: Index No. 30614/09,2017–04456
• Citation: 96 N.Y.S.3d 686,170 A.D.3d 1211
• Parties: J.R., etc., et al., Respondents, v. CITY OF NEW YORK, Defendant, New York City Housing Authority, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1211

96 N.Y.S.3d 686

J.R., etc., et al., Respondents,

v. CITY OF NEW YORK, Defendant,New York City Housing Authority, Appellant.

2017–04456

Index No. 30614/09

Supreme Court, Appellate Division, Second Department, New York.

Argued - December 10, 2018

March 27, 2019

Lester Schwab Katz & Dwyer, LLP (Steven B. Prystowsky of counsel), for appellant.

Popkin & Popkin, LLP, New York, N.Y. (Eric F. Popkin of counsel), for respondents.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The then 11–year–old infant plaintiff allegedly was injured when she fell from playground equipment located outside a building owned by the defendant New York City Housing Authority (hereinafter NYCHA) and landed on the asphalt surface below. The infant plaintiff, by her mother and natural guardian, and her mother suing derivatively, commenced this action against NYCHA and the defendant City of New York, alleging that the defendants failed to maintain the playground in a reasonably safe condition due to the use of an asphalt surface below the playground equipment. NYCHA moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it was not foreseeable that children would climb on the "play house" equipment and, therefore, the asphalt surface was not inherently dangerous, the asphalt surface was not a proximate cause of the infant plaintiff's injuries, and the infant plaintiff had assumed the risk of falling from the equipment to the asphalt. The Supreme Court denied NYCHA's motion, and NYCHA appeals.

A landowner is under a duty to maintain its premises in a reasonably safe condition "in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ( Basso v. Miller , 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [internal quotation marks omitted]; see Rhabb v. New York City Hous. Auth. , 41 N.Y.2d 200, 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335 ). "To be entitled to summary judgment in a premises liability case, the defendant is required to show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises" ( Taub v. JMDH Real Estate of Garden City Warehouse, LLC , 150 A.D.3d 1301, 1302, 56 N.Y.S.3d 220 ). Foreseeability includes what the defendant actually knew, as well as what it reasonably should have known (see Sanchez v. State of New York , 99 N.Y.2d 247, 255, 754 N.Y.S.2d 621, 784 N.E.2d 675 ; Ruiz v. Griffin , 71 A.D.3d 1112, 1114–1115, 898 N.Y.S.2d 590 ), and is generally an issue of fact for the factfinder (see Lynch v. Bay Ridge Obstetrical & Gynecological Assoc. , 72 N.Y.2d 632, 636, 536 N.Y.S.2d 11, 532 N.E.2d 1239 ; Derdiarian v. Felix Contr. Corp. , 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ).

Here, NYCHA failed to meet its initial burden of demonstrating its prima facie entitlement to judgment as a matter of law. In support of its motion, NYCHA submitted, inter alia, an affidavit from its expert, who opined that the equipment was not intended for climbing and therefore no protective surfacing was necessary under the applicable standards. NYCHA also offered evidence that there were no prior accidents involving the equipment. Additionally, NYCHA also submitted the transcripts from the depositions and from the General Municipal Law § 50–h hearings at which the infant plaintiff and her mother testified that the infant plaintiff and other children often climbed on the equipment over the course of four years. Further, the infant plaintiff's mother testified at her deposition that she had complained to the groundskeeper that the placement of mats was necessary. This testimony revealed triable issues of fact as to whether it was foreseeable that the infant plaintiff would climb on the subject playground equipment and whether protective surfacing was therefore reasonably necessary (see Smith v. New York City Hous. Auth. , 52 A.D.3d 808, 809, 861 N.Y.S.2d 379 ; see generally Peralta v. Henriquez , 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 ). Further, NYCHA failed to establish, prima facie, that the use of an asphalt surface was not a proximate cause of the infant plaintiff's injuries or that the infant plaintiff's act of climbing on the equipment was so reckless and unforeseeable as to break the causal connection between the allegedly dangerous condition and her injuries (see Sniatecki v. Violet Realty, Inc. , 98 A.D.3d 1316, 1319, 951 N.Y.S.2d 628 ; Roberts v. New York City Hous. Auth. , 257 A.D.2d 550, 550, 685 N.Y.S.2d 23 ; Rosario v. City of New York , 157 A.D.2d 467, 470–471, 549 N.Y.S.2d 661 ).

NYCHA also failed to meet its initial burden of demonstrating its prima facie entitlement to judgment as a matter...