Muallem v. City of New York

• Decision Date: 17 August 1981
• Citation: 441 N.Y.S.2d 834,82 A.D.2d 420
• Parties: Channa S. MUALLEM, Individually etc., et al., Appellants-Respondents, v. The CITY OF NEW YORK, Defendant-Respondent; Harry Franco, Defendant Third-Party Plaintiff-Respondent-Appellant; Gasemaro Buonocore, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 834

441 N.Y.S.2d 834

82 A.D.2d 420

Channa S. MUALLEM, Individually etc., et al., Appellants-Respondents, v. The CITY OF NEW YORK, Defendant-Respondent Harry Franco, Defendant Third-Party Plaintiff-Respondent-Appellant Gasemaro Buonocore, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 17, 1981.

John Anthony Bonina, Brooklyn, (Charles Dobkin, Brooklyn, of counsel; Marlon Wayne Schulman, Brooklyn, on the brief), for appellants-respondents.

Fried, Frank, Harris, Shriver & Jacobson, New York City, (Albert N. Podell and Stuart Blander, New York City, of counsel), for defendant-respondent.

Fogarty, Wynne, Martini, Purcell & Byrne, Lake Success, (Charlene I. Lund, Lake Success, of counsel), for defendant-third-party plaintiff-respondent-appellant.

J. Robert Morris, New York City, (Siff & Newman, P. C., New York City, of counsel), for third-party defendant-appellant.

Before MOLLEN, P. J., and COHALAN, MARGETT and O'CONNOR, JJ.

MOLLEN, Presiding Justice.

This appeal calls upon the court to re-examine a series of cases in which infant plaintiffs were denied recovery as a matter of law for injuries sustained while riding bicycles on public sidewalks. The essential question presented is whether the holdings of those cases remain valid in light of recent pronouncements by the Court of Appeals concerning fundamental principles of tort law. We turn first to a review of the pertinent facts which, for the purposes of this appeal, are not in serious dispute.

On June 11, 1970, nine-year old Daniel Muallem was riding his bicycle on the public sidewalk adjacent to the property of defendant Harry Franco. The bicycle struck a raised crack in the sidewalk and Daniel was thrown onto shrubbery growing on Franco's property. As a result, the child sustained serious injury to his eye.

Thereafter, plaintiff Channa Muallem, acting individually and as Daniel's natural guardian, commenced this action against both the City of New York and Franco. Franco, in turn, commenced a third-party action against his gardener, Gasemaro Buonocore, for negligence in maintaining the shrubbery. Franco and the city cross-claimed against each other; Buonocore cross-claimed against the city.

Franco and the city subsequently moved for summary judgment dismissing the complaint and all cross claims against them. Buonocore asked that the third-party complaint likewise be dismissed. Special Term denied the applications of the individual defendants, finding issues of fact which required a trial. However, the court granted summary judgment to the city on constraint of several cases decided by this court which denied recovery to infant bicyclists in sidewalk accidents. Although the court observed that the law of negligence in this State had recently undergone significant change, it nevertheless expressed the belief that it would be inappropriate for a court sitting at Special Term to depart from the doctrine of stare decisis on the question of whether the city owes a duty of care to infant bicyclists.

Plaintiffs now appeal from so much of Special Term's subsequent order as granted the city's application for summary judgment. Franco appeals from the order in its entirety. Buonocore appeals from so much of the order as dismissed his cross claim against the city and as denied his motion to dismiss the third-party complaint.

We hold that, in view of recent developments in the decisional law of this State and the repeal of section 1907 of the former Penal Law, the cases which Special Term found to be controlling, and upon which the city continues to rely, no longer present a bar to plaintiffs' recovery as against the city. Accordingly, we modify the order appealed from by denying the city's motion in its entirety. In all other respects, we affirm.

The earliest of the cases relied on by Special Term was Hart v. Town of Brookhaven, 261 App.Div. 923, 25 N.Y.S.2d 428. There, the adult plaintiff was injured when a bicycle she was riding collided with a limb of a tree which was lying across the sidewalk. We reversed a judgment in her favor and dismissed her complaint, holding that "riding the bicycle on the sidewalk plaintiff * * * was violating * * * and was guilty of contributory negligence as a matter of law." Later, in Roberto v. City of New York, 35 A.D.2d 782, 315 N.Y.S.2d 819 we affirmed without opinion the dismissal of an infant bicyclist's complaint against the city. Thereafter, in Rivera v. City of New York, 39 A.D.2d 606, 331 N.Y.S.2d 784, affd. 32 N.Y.2d 726, 344 N.Y.S.2d 364, 297 N.E.2d 99 we again affirmed the dismissal of an infant bicyclist's complaint against the city. And, finally, in Olsen v. City of New York, 49 A.D.2d 884, 373 N.Y.S.2d 214, we reached the same result, holding (supra, p. 885, 373 N.Y.S.2d 214) that the city "owes no duty to maintain its sidewalks and walkways in a condition reasonably safe for infant bicyclists."

With the exception of Olsen (supra), the foregoing cases may be readily distinguished. They each apparently turned upon the plaintiff's contributory negligence which was held to have been established as a matter of law solely because riding a bicycle on a public sidewalk constituted a direct violation of section 1907 of the former Penal Law. That statute, however, was repealed some three years prior to the incident at bar, and therefore the cases are of limited precedential value. Olsen itself may not be distinguished on the same ground, however, since it was decided after the repeal of section 1907. Nevertheless, we decline to follow Olsen because we conclude that its holding must yield to more recent views of negligence law as expressed by our Court of Appeals.

In Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, the court abandoned the common law rule by which the liability of a landowner to one injured upon his property was governed by antiquated distinctions between trespassers, licensees and invitees. Instead, the court held, liability is now to be measured by the "standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability." Basso v. Miller, supra, p. 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; see, also, Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794; Barker v. Parnossa, Inc., 39 N.Y.2d 926, 386 N.Y.S.2d 576, 352 N.E.2d 880.) Plaintiffs would have us hold that this single standard approach should be applied in the case at bar. The city, on the other hand, maintains that Basso is inapposite because it speaks only of the standard of care to which a landowner may be held once it is established that a duty exists. Thus, the city argues, since the line of cases cited by Special Term demonstrates that a municipality owes no duty to those who ride bicycles on public sidewalks, Basso's standard of care analysis is irrelevant to the issues at bar. It is here that the city's position is fatally flawed, for it confuses fundamental concepts of negligence law.

It is certainly true, as the city suggests, that the threshold question in a negligence case is whether the defendant owed the plaintiff a duty. As the Court of Appeals said in Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019:

"It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff * * * In the absence of duty, there is no breach and without a breach there is no liability * * * This requirement is expressed in the often-quoted remark: 'Negligence in the...