Foreman v. Town of Oyster Bay

140 A.D.3d 694

30 N.Y.S.3d 895 (Mem)

2016 N.Y. Slip Op. 04174

Eileen FOREMAN, respondent,

v.TOWN OF OYSTER BAY, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 1, 2016.

Cascone & Kluepfel, LLP, Garden City, NY (Kimberly von Arx of counsel), for appellant.

Hogan & Cassell, LLP, Jericho, NY (Michael Cassell of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Woodard, J.), entered October 8, 2014, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly sustained personal injuries when she was struck in the chest by a baseball while sunbathing on Tobay Beach in the defendant Town of Oyster Bay.

To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019 ). Absent a duty of care, there is no breach and no liability (id. ).

“A municipality is under a duty to maintain its park and playground facilities in a reasonably safe condition” (Marino v. State of New York, 16 A.D.3d 386, 387, 790 N.Y.S.2d 553 ; see Nicholson v. Board of Educ. of City of N.Y., 36 N.Y.2d 798, 799, 369 N.Y.S.2d 703, 330 N.E.2d 651 ; Caldwell v. Village of Is. Park, 304 N.Y. 268, 273, 107 N.E.2d 441 ; Engelhart v. County of Orange, 16 A.D.3d 369, 372, 790 N.Y.S.2d 704 ). This duty “includes not only physical care of the property but also prevention of ultrahazardous and criminal activity of which it has knowledge” (Benjamin v. City of New York, 64 N.Y.2d 44, 46, 484 N.Y.S.2d 525, 473 N.E.2d 753 ; Engelhart v. County of Orange, 16 A.D.3d at 372, 790 N.Y.S.2d 704 ; Muzich v. Bonomolo, 209 A.D.2d 387, 388–389, 618 N.Y.S.2d 437 ).

Here, the Town established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the activity alleged by the plaintiff to have caused her harm, i.e., playing baseball, does not rise to the level of “ultrahazardous and criminal” (Benjamin v. City of New York, 64 N.Y.2d at 46, 484 N.Y.S.2d 525, 473 N.E.2d 753 ; see Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 ; Marino v. State of New York, 16 A.D.3d at 387, 790 N.Y.S.2d 553 ; Muzich v. Bonomolo, 209 A.D.2d 387, 618 N.Y.S.2d 437 ; see also Nally v. County of Monroe, 305 A.D.2d 1014, 758 N.Y.S.2d 581 ; Tewari v. City of New York, 249 A.D.2d 175, 671 N.Y.S.2d 256 ; cf. Nicholson v. Board of Educ. of City of N.Y., 36 N.Y.2d 798, 799, 369 N.Y.S.2d 703, 330 N.E.2d 651 ; Caldwell v. Village of Is. Park, 304 N.Y. 268, 107 N.E.2d 441 ). In opposition, the plaintiff failed to raise a triable issue of fact (see ...