Opinion
17268 Index No. 156741/17 Case No. 2022-01070
02-09-2023
Lara VOSS et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK et al., Defendants-Respondents.
Zalman Schnurman & Miner, P.C., New York (Marc H. Miner of counsel), for appellants. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondents.
Zalman Schnurman & Miner, P.C., New York (Marc H. Miner of counsel), for appellants.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Eva L. Jerome of counsel), for respondents.
Kern, J.P., Singh, Shulman, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered March 1, 2022, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
In this action in which infant plaintiff was injured when he fell on the rock formation known as "Umpire Rock" located near Hecksler Playground in Central Park, the court correctly granted defendants’ motion for summary judgment dismissing the complaint. A landowner's duty to take reasonable precautions does not extend to natural geographic phenomena that are open and obvious conditions and that, like the condition here, "can readily be observed by those employing the reasonable use of their senses" ( Torres v. City of New York, 104 A.D.3d 593, 593–594, 961 N.Y.S.2d 439 [1st Dept. 2013] [internal quotation marks omitted]; see Tushaj v. City of New York, 258 A.D.2d 283, 284, 685 N.Y.S.2d 64 [1st Dept. 1999], lv denied 93 N.Y.2d 818, 697 N.Y.S.2d 566, 719 N.E.2d 927 [1999] ). Defendants established prima facie entitlement to summary relief by demonstrating that the condition of the rock was an open and obvious natural feature of the landscape, readily observable by the reasonable use of one's senses for which defendants did not owe plaintiffs a duty of care. Defendants had no duty to enclose Umpire Rock or warn against its obvious elevated steep side. Unlike in the cases relied upon by plaintiffs, the condition was not manmade (see Aberger v. Camp Loyaltown, Inc., 193 A.D.3d 195, 142 N.Y.S.3d 528 [1st Dept. 2021] ), or a latent defect, not readily apparent to the public, which required a duty to warn (see Morell v. Peekskill Ranch, Inc., 64 N.Y.2d 859, 487 N.Y.S.2d 319, 476 N.E.2d 645 [1985] ). Plaintiffs’ expert's contention that the playground design should have incorporated a protective barrier to prevent free access from the composite play structure onto Umpire Rock, did not raise an issue of fact on this record since there was no duty of care owed under the circumstances.