Flowers v. City of New York

Appellate Division of the Supreme Court of New York

Flowers v. City of New York

283 A.D.2d 198, 724 N.Y.S.2d 405, 2001 N.Y. App. Div. LEXIS 4814

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 8, 2001

StatusPublished

This text of 283 A.D.2d 198 (Flowers v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Flowers v. City of New York, 283 A.D.2d 198, 724 N.Y.S.2d 405, 2001 N.Y. App. Div. LEXIS 4814 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered June 5, 2000, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The complaint was properly dismissed. While defendant, in the exercise of its proprietary function, may be obligated to furnish a degree of general supervision to deter activities within its parks dangerous to those using its parks legally (see, Rhabb v New York City Hous. Auth., 41 NY2d 200), such duty does not run to those using park premises illegally, and plaintiff, at the time of the incident which gave rise to this action, was illegally upon the premises of the subject park, having remained there long after the park had closed for the night (see, Garcia v City of New York, 205 AD2d 49, lv denied 85 NY2d 810). Moreover, the record provides no reason to suppose that there was any causal relation between any negligence by defendant City in the exercise of its proprietary responsibilities and plaintiff’s harm. We perceive no non-speculative basis for plaintiffs contentions that a greater supervisory presence or better lighting would have prevented the sudden armed assault upon him. The casual connection, if any, between the criminal act which befell plaintiff, occurring in an essentially open-air, public area, and any negligence on the part of defendant in its capacity as a proprietor was too attenuated, as a matter of law, to serve as a basis for plaintiffs recovery (see, McPherson v New York City Hous. Auth., 228 AD2d 654; Allen [199]*199v New York City Hous. Auth., 203 AD2d 313, 314, lv denied 84 NY2d 807). Finally, plaintiffs claim, insofar as premised upon defendant City’s failure to provide adequate police protection, is not viable, since the allocation of police resources involves the exercise of a governmental function for which there can be no liability, except where a special duty to the plaintiff has been assumed, and none has been alleged in this case (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175).

We have considered plaintiffs other arguments and find them unavailing. Concur — Sullivan, P. J., Williams, Mazzarelli, Wallach and Rubin, JJ.

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—Order, Supreme Court, Bronx County (Stanley Green, J.), entered June 5, 2000, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The complaint was properly dismissed. While defendant, in the exercise of its proprietary function, may be obligated to furnish a degree of general supervision to deter activities within its parks dangerous to those using its parks legally (see, Rhabb v New York City Hous. Auth., 41 NY2d 200), such duty does not run to those using park premises illegally, and plaintiff, at the time of the incident which gave rise to this action, was illegally upon the premises of the subject park, having remained there long after the park had closed for the night (see, Garcia v City of New York, 205 AD2d 49, lv denied 85 NY2d 810). Moreover, the record provides no reason to suppose that there was any causal relation between any negligence by defendant City in the exercise of its proprietary responsibilities and plaintiff’s harm. We perceive no non-speculative basis for plaintiffs contentions that a greater supervisory presence or better lighting would have prevented the sudden armed assault upon him. The casual connection, if any, between the criminal act which befell plaintiff, occurring in an essentially open-air, public area, and any negligence on the part of defendant in its capacity as a proprietor was too attenuated, as a matter of law, to serve as a basis for plaintiffs recovery (see, McPherson v New York City Hous. Auth., 228 AD2d 654; Allen [199]*199v New York City Hous. Auth., 203 AD2d 313, 314, lv denied 84 NY2d 807). Finally, plaintiffs claim, insofar as premised upon defendant City’s failure to provide adequate police protection, is not viable, since the allocation of police resources involves the exercise of a governmental function for which there can be no liability, except where a special duty to the plaintiff has been assumed, and none has been alleged in this case (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175).

We have considered plaintiffs other arguments and find them unavailing. Concur — Sullivan, P. J., Williams, Mazzarelli, Wallach and Rubin, JJ.

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283 A.D.2d 198, 724 N.Y.S.2d 405, 2001 N.Y. App. Div. LEXIS 4814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flowers-v-city-of-new-york-nyappdiv-2001.

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