Zarillo v. State

CourtNew York Court of Claims
Writing for the CourtALEXANDER DEL GIORNO
Citation12 Misc.2d 692,177 N.Y.S.2d 146
Decision Date22 July 1958
PartiesGeorge ZARILLO, individually and as Guardian ad Litem for Margaret Zarillo, an infant, Claimants, v. The STATE of New York.

Page 146

177 N.Y.S.2d 146
12 Misc.2d 692
George ZARILLO, individually and as Guardian ad Litem for
Margaret Zarillo, an infant, Claimants,
v.
The STATE of New York.
Court of Claims of New York.
July 22, 1958.

Page 147

[12 Misc.2d 693] Irving A. Scheinberg, Brooklyn, for claimants, Erwin Greenberg, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., Robert Schwartz, Asst. Atty. Gen., of counsel, for the State.

ALEXANDER DEL GIORNO, Judge.

This is an action brought by George Zarillo, individually and as guardian ad litem for the infant, Margaret Zarillo, who is his daughter. He demands $25,000 for the injuries to the infant and $5,000 for himself for medical expenses and loss of services of said infant.

Claimants allege that the State of New York was negligent in connection with the ownership, management and control of Valley Stream State Park, Valley Stream, New York, on July 27, 1955, the date of the accident herein.

The testimony brought out that said park was owned, managed and controlled by the Long Island State Park Commission, a sub-division of the State, and that it was divided into a North area and a South area. The south area, which is involved in this claim, consists of some 40 acres, all enclosed by a high wire mesh fence, except for the entrances. Twenty acres comprise a lake and twenty acres are land with trails, picnic area, wooded areas and grass areas. There is a parking area for motor vehicles and also a bicycle rack for some 50 bicycles. While there is a parking fee for motor vehicles, there is none for bicycles.

At the extreme south, the park abuts Merrick Road. There are two entrances there where motor vehicles may enter, approach the toll booth, pay the fee and park. Nearby is the field house and boat house with refreshment stand. The lake is rectangular and runs south to north, beginning

Page 148

near the field house. On both sides of the lake there are paths for pedestrians, who may walk, stand or sit at their pleasure. It is a lovely and relaxing atmosphere. In the middle of the park, and generally dividing the south area from the north area, is Hendrickson Avenue. There are two entrances from Hendrickson Avenue also leading to the south area.

[12 Misc.2d 694] Concededly, there are signs at each of the four entrances and at about seven other locations throughout the south area of the park which read: 'Bicycle Riding Not Permitted'. The signs are 20 inches by 30 inches with a black background on which the above is written in 4-inch silver letters. The signs are readable and are placed about 30 inches above the ground (State's Exs. B & C).

A reading of the Long Island State Park Ordinances (Cls.' Ex. 5) discloses no ordinance prohibiting riding of bicycles. The State's employee-witnesses said it was an unwritten rule that bicycles could not be ridden in the park, which unwritten rule the Park Commission tried to enforce by setting up the aforesaid signs. The superintendent of the park and the other employees stated that they tried to enforce this unwritten rule whenever they caught some one riding a bicycle, by stopping him, taking his bicycle away and placing and locking it in the bicycle rack until the person was ready to leave the park.

The superintendent, who had been there since six weeks before the accident, testified that during that period of time he had had to 'chase' children off their bicycles on at least six occasions and had received information that his men did likewise. He said he did not see many children riding their bicycles but assumed that if they were out of his sight they could or would ride their bicycles.

Walter Schwing, the Assistant Foreman, testified that there were Rules and Regulations for that park and that these were posted upon a post (Examination before trial--Q. & A. 55), but he remembered none of them, except in a general way (Q. & A. 60); and further testified as follows:

'Q. 117 Are there any other methods or means that you use to prevent bicycling or riding bicycles on the park premises, or on the trails as you call it, of the park? A. We don't allow them in, if we can catch them before-hand, we don't allow them in, we make them park in the field where the racks are.

'Q. 118 Are they permitted to walk with the bicycles through the park? A. I wouldn't say yes or no, because the minute your back is turned, they are on.'

The testimony brought out that there were some nine employees working on the day of the accident at the usual chores of caring for park property and activity and incidentally supervising the 300 or 400 guests in that area.

Page 149

That is the picture of the park as the claimants arrived. The claimant, George Zarillo, drove his car with his wife, his sister-in-law and their respective two small children as passengers. [12 Misc.2d 695] The infant claimant was then 4 years old. They arrived at 2 p. m., and had lunch. The two sisters then took their children to see the swans in the lake. The walk was a leisurely one, the four children ahead of the two mothers. The path they were on ended nearby at the enclosing fence. Near the fence the path sloped upward. There the mother saw two boys with their bicycles, resting against the fence. Suddenly and without warning, these boys jumped on their bicycles and rode down the slope. The mother, who was some 45 feet distant from the child claimant, screamed for her to get out of the way of the bicycles but the child was not fast enough to avoid being struck. She and one of the boys on the bicycle both went down. The boy, however, picked himself up, got on his bicycle and rode away. The child, obviously, struck her head on the ground, for she was knocked unconscious and was bleeding from the side of her head. The mother and aunt,...

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3 practice notes
  • Zarillo v. State
    • United States
    • New York Court of Appeals
    • February 25, 1960
    ...occurred. The prohibition was enforced by park employees as they observed violations. The Court of Claims, Alexander Del Giorno, J., 12 Misc.2d 692, 177 N.Y.S.2d 146, entered judgment against the State, and the State appealed, and the claimants cross-appealed on ground that awards were The ......
  • Zarillo v. State, No. 33339
    • United States
    • New York Court of Appeals
    • July 8, 1959
    ...occurred. The prohibition was enforced by park employees as they observed violations. The Court of Claims, Alexander Del Giorno, J., 12 Misc.2d 692, 177 N.Y.S.2d 146, entered judgment against the State, and the State appealed, and the claimants cross-appealed on ground that awards were The ......
  • Zarillo v. State
    • United States
    • New York Supreme Court Appellate Division
    • December 4, 1958
    ...Defendant-Appellant-Respondent. Supreme Court of New York, Appellate Division, Third Department. Dec. 4, 1958. Motion to dismiss appeal, 12 Misc.2d 692, 177 N.Y.S.2d 146, granted, without costs, unless appellants perfect appeal, file note of issue, and file and serve record and brief on or ......
3 cases
  • Zarillo v. State
    • United States
    • New York Court of Appeals
    • February 25, 1960
    ...occurred. The prohibition was enforced by park employees as they observed violations. The Court of Claims, Alexander Del Giorno, J., 12 Misc.2d 692, 177 N.Y.S.2d 146, entered judgment against the State, and the State appealed, and the claimants cross-appealed on ground that awards were The ......
  • Zarillo v. State, No. 33339
    • United States
    • New York Court of Appeals
    • July 8, 1959
    ...occurred. The prohibition was enforced by park employees as they observed violations. The Court of Claims, Alexander Del Giorno, J., 12 Misc.2d 692, 177 N.Y.S.2d 146, entered judgment against the State, and the State appealed, and the claimants cross-appealed on ground that awards were The ......
  • Zarillo v. State
    • United States
    • New York Supreme Court Appellate Division
    • December 4, 1958
    ...Defendant-Appellant-Respondent. Supreme Court of New York, Appellate Division, Third Department. Dec. 4, 1958. Motion to dismiss appeal, 12 Misc.2d 692, 177 N.Y.S.2d 146, granted, without costs, unless appellants perfect appeal, file note of issue, and file and serve record and brief on or ......

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