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Solomon v. City of New York

Court of Appeals of the State of New York
Dec 26, 1985
66 N.Y.2d 1026 (N.Y. 1985)

Opinion

Decided December 26, 1985

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Franklin W. Morton, Jr., J.

Cheryl Eisberg Moin for appellants.

Frederick A.O. Schwarz, Jr., Corporation Counsel (Miriam Skolnick of counsel), for respondent.


MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v Glens Falls City School Dist., 53 N.Y.2d 325, 333, citing Prosser, Torts § 30, at 143 [4th ed]). In its proprietory capacity, "a municipality is under a duty to maintain its park and playground facilities in a reasonably safe condition" (Nicholson v Board of Educ., 36 N.Y.2d 798, 799). 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). Bicycle riding on a busy promenade does not rise to the level of "ultrahazardous and criminal" (see, Zarillo v State of New York, 8 A.D.2d 651, affd 7 N.Y.2d 943; cf. Benjamin v City of New York, 64 N.Y.2d 44, supra; Caldwell v Village of Is. Park, 304 N.Y. 268; Nicholson v Board of Educ., 36 N.Y.2d 798, supra). Thus, as a matter of law, the city did not breach its duty to plaintiffs.

Nor has plaintiff stated a cause of action based on the city's alleged failure to enforce the regulations prohibiting bicycle riding in the area where the infant plaintiff was injured. By promulgating and enforcing these regulations, intended for the protection of the general public, defendant did not assume a special relationship toward the infant plaintiff carrying with it a special duty to protect the latter from the prohibited activity (Sorichetti v City of New York, 65 N.Y.2d 461, 468; De Long v County of Erie, 60 N.Y.2d 296, 304; Florence v Goldberg, 44 N.Y.2d 189, 195-196).

Because plaintiffs failed to demonstrate a duty of care owed by defendant, the complaint was properly dismissed.

Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.


Summaries of

Solomon v. City of New York

Court of Appeals of the State of New York
Dec 26, 1985
66 N.Y.2d 1026 (N.Y. 1985)
Case details for

Solomon v. City of New York

Case Details

Full title:CAROLYN SOLOMON, an Infant, by Her Father and Natural Guardian, ARTHUR…

Court:Court of Appeals of the State of New York

Date published: Dec 26, 1985

Citations

66 N.Y.2d 1026 (N.Y. 1985)
499 N.Y.S.2d 392
489 N.E.2d 1294

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