Saracino v. City of New York
| Decision Date | 15 July 1968 |
| Citation | 30 A.D.2d 853,293 N.Y.S.2d 29 |
| Parties | Frank SARACINO, an infant, etc., Appellant, v. The CITY OF NEW YORK, Respondent, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Jack B. Tannenbaum, Brooklyn, for plaintiff-appellant; Harry Heller, New York City, of counsel.
J. Lee Rankin, Corp. Counsel, New York City, for respondent, City of New York; Stanley Buchsbaum, Bernard Burstein, New York City, of counsel.
Before BRENNAN, Acting P.J., and HOPKINS, MUNDER, MARTUSCELLO and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
Judgment of the Supreme Court, Kings County, entered April 5, 1966, in favor of defendant City of New York upon the dismissal of the complaint at the close of plaintiff's case on a jury trial, affirmed, without costs.
On August 5, 1956, plaintiff, then four and a half years old, visited a New York City park accompanied by his eleven-year-old sister. While ascending the steps of a slide, his hand slipped off the railing a few steps from the top and he fell to the ground, sustaining personal injury. The slide was wet following a rainfall. As developed by the proof adduced at the trial, the liability of the defendant City was predicated primarily upon the theory of lack of supervision by the park attendant and obliquely upon the theory of alleged defective design of the slide.
In our opinion, plaintiff failed to make out a Prima facie case of actionable negligence against the defendant City and, accordingly, the complaint was properly dismissed at the close of plaintiff's case. Absent expert proof of defective design, the other proof adduced in this regard was insufficient. In our view, in the context of the record, the trial Justice did not abuse his discretion in denying plaintiff's motion to reopen the case for the purpose of producing expert testimony as to defective design of the sliding pond. The abortive attempt in this respect was an afterthought, resorted to when it became apparent that plaintiff's basic theory of lack of adequate supervision had failed.
The duty of the defendant was to provide an adequate degree of 'general superintendence' of recreation at the park; there was no duty to provide direct management of the apparatus by the attendant (Peterson v. City of New York, 267 N.Y. 204, 206, 196 N.E.2d 27, 28; Caldwell v. Village of Island Park, 304 N.Y. 268, 107 N.E.2d 441; 4 B Warren's N.Y. Negligence, § 7.02). "To cast appellant in damages under the facts of this case would be imposing upon the city a responsibility greater than reasonable caution requires" (Blume v. City of Newburgh, 291 N.Y. 739, 740, 52 N.E.2d 958).
BENJAMIN, Justice, dissents and votes to reverse the judgment and grant a new trial against the City of New York, with the following memorandum:
In my opinion plaintiff made out a Prima facie case of actionable negligence against the defendant City of New York. It is beyond question that the City which extends an invitation to enter and use a recreational area owes a duty to those accepting that invitation to provide an adequate degree of...
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