Leone v. City of Utica

• Decision Date: 18 March 1980
• Citation: 426 N.Y.S.2d 980,49 N.Y.2d 811
• Parties: , 403 N.E.2d 964 Anthony LEONE, an Infant, by Rosemary Leone, his mother, et al., Respondents, v. CITY OF UTICA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 980

426 N.Y.S.2d 980

49 N.Y.2d 811, 403 N.E.2d 964

Anthony LEONE, an Infant, by Rosemary Leone, his mother, et al., Respondents, v. CITY OF UTICA, Appellant.

Court of Appeals of New York.

March 18, 1980.

Lawrence P. George, Corporation Counsel, Utica (Bernard Samuels and Eric M. Alderman, Syracuse, of counsel), for appellant.

Earle C. Bastow, Waddie N. Kalil and John E. Hunt, Utica, for respondents.

OPINION OF THE COURT

The order appealed from should be affirmed with costs, for those reasons relating to duty and proximate cause stated in the opinion of Presiding Justice Michael F. Dillon at the Appellate Division (66 A.D.2d 463, 414 N.Y.S.2d 412). We note in addition that the trial court did not abuse its discretion in denying appellant's belated application for permission to assert a cross claim.

JASEN, J. (concurring).

While I vote for affirmance, I do so solely on constraint of this court's prior decision in Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794. In my opinion, it is both unreasonable and improvident to hold a landowner liable for personal injuries sustained on adjoining property which he does not own, where, as here, the precautions which the landowner would be required to undertake to prevent such injury would be unduly burdensome.

COOKE, C. J., and GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur; JASEN, J., concurs in a separate memorandum.