Cocco v. City of New York

114 A.D.3d 617, 980 N.Y.S.2d 766

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2014
• Status: Published

Opinion

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered February 13, 2013, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this action for personal injuries, plaintiff alleges that she was walking on the sidewalk, heading south on Lexington Avenue between 96th and 95th Streets, when a baseball coming from a schoolyard, owned and maintained by defendants, struck her in the face. Defendants established their prima facie entitlement to judgment as a matter of law by establishing that they neither owed nor violated a duty of care to plaintiff. Even accepting plaintiffs allegations and testimony as true, defendants, as “the proprietor[s] of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest” (Akins v Glens Falls City School Dist., 53 NY2d 325, 331 [1981]; see Haymon v Pettit, 9 NY3d 324 [2007]; Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 247-248 [1st Dept 2008], affd 10 NY3d 889 [2008]). Accordingly, defendants cannot be held liable for the injuries suffered by plaintiff who was struck by a baseball while walking on a sidewalk adjacent to a school yard that contained a ball field.

Plaintiff failed to demonstrate that further discovery is necessary for her to properly respond to defendant’s motion.

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Mazzarelli, J.P, Acosta, Renwick, Freedman and Manzanet-Daniels, JJ.