Vitetta v. City of Albany

• Citation: 164 N.Y.S.2d 416,4 A.D.2d 797
• Parties: Joseph VITETTA, as Administrator of the Estate of Joseph Vitetta, Jr., Deceased, Appellant, v. The CITY OF ALBANY, New York, Respondent.
• Decision Date: 23 July 1957
• Court: New York Supreme Court Appellate Division

Page 416

164 N.Y.S.2d 416

4 A.D.2d 797

Joseph VITETTA, as Administrator of the Estate of Joseph

Vitetta, Jr., Deceased, Appellant, v. The CITY OF ALBANY, New York, Respondent.

Supreme Court, Appellate Division, Third Department.

July 23, 1957.

Reuben H. Kohn, Albany, for appellant.

Towner & Erway, Albany, for respondent.

Before FOSTER, P. J., BERGAN, COON, HALPERN and GIBSON, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court, Trial Term, Albany County, granting defendant's motion to set aside a verdict for plaintiff in a negligence action and to dismiss the complaint, and from the judgment entered on said order.

Plaintiff's intestate, a child three and a half years of age, with members of his family, was picnicking in a park maintained by the defendant city. The park caretaker instructed one Peters to remove his automobile from the picnic area to the parking space maintained and designated for that purpose. As Peters was doing so, his automobile struck plaintiff's intestate, who thereby sustained injuries which resulted in his death.

In setting aside the verdict and directing dismissal of the complaint, the trial court correctly held that, under its obligation to render general supervision, the defendant owed a duty to exercise reasonable and ordinary care against foreseeable dangers but that it could not reasonably have foreseen that an accident would result from its caretaker's direction to Peters to remove his automobile.

Judgment and order unanimously affirmed, without costs.