Murphy v. Turian House, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before O'BRIEN
• Citation: Murphy v. Turian House, Inc., 649 N.Y.S.2d 38, 232 A.D.2d 535 (N.Y. App. Div. 1996)
• Decision Date: 21 October 1996
• Parties: Eileen MURPHY, Appellant, v. TURIAN HOUSE, INC., et al., Respondents.

Page 38

649 N.Y.S.2d 38

232 A.D.2d 535

Eileen MURPHY, Appellant, v. TURIAN HOUSE, INC., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 21, 1996.

Worby, Borowick, Groner, Abele & Asceste, LLP, White Plains (Michael D. Crowley and Jay L.T. Breakstone, of counsel), for appellant.

Cyperstein & Gerstner, New York City (Fredda Siegel, of counsel), for respondents.

Before O'BRIEN, J.P., and THOMPSON, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Dye, J.), dated September 20, 1995, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff's backyard abuts property owned by the defendants, a six-story residential complex, which includes a parking garage on top of which a fenced playground or recreational area is located. The elevated playground overlooks the plaintiff's backyard and the yards of several other homeowners.

The plaintiff was injured when a youth living in the complex threw a brick from the playground into her backyard, striking her in the head. According to the plaintiff, she and her neighbors, for several years prior to the incident, repeatedly complained to the defendants both orally and in writing, about objects being thrown from the elevated playground into their abutting backyards. The complaint alleges, inter alia, that the defendants never took any action to remedy the problem. The Supreme Court dismissed the action, and we reverse.

A party who possesses realty, either as an owner or as a tenant, is under a duty to exercise reasonable care to maintain that property in a safe condition, and this duty includes the undertaking of minimal precautions to protect members of the public from the reasonably foreseeable acts of third persons (Provenzano v. Roslyn Gardens Tenants Corp., 190 A.D.2d 718, 593 N.Y.S.2d 80; De Rosa v. Fordham Univ., 18 A.D.2d 1056, 238 N.Y.S.2d 778; cf., DeRyss v. New York Cent. R.R. Co., 275 N.Y. 85, 9 N.E.2d 788; see also, Vangeli v. Schneider, 194 A.D.2d 916, 917, 598 N.Y.S.2d 837; 85 N.Y. Jur. 2d, Premises Liability, § 60 240, 241).

A question of fact exists here as to whether the defendants breached their duty of care in failing to take steps to prevent the repeated throwing of rocks, bricks...