Haymon v. Pettit

82 A.D.3d 1662, 919 N.Y.2d 659

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2011
• Status: Published

Opinion

Memorandum: Plaintiff commenced this action, individually and on behalf of her 14-year-old son, seeking damages for injuries he sustained when he was struck by a vehicle operated by defendant Donald J. Pettit. Plaintiffs son had been standing with a group of children outside a stadium owned and operated by defendant Auburn Community Non-Profit Baseball Association, Inc. (Baseball Association). There was a baseball game in progress in the stadium, and plaintiffs son was struck by Pet-tit’s vehicle while he was running across the street in defendant City of Auburn (City) in an attempt to catch a baseball that was hit out of the stadium. On a prior appeal, we determined that Supreme Court erred in denying the Baseball Association’s motion for summary judgment dismissing the complaint and cross claims against it (Haymon v Pettit, 37 AD3d 1194 [2007], affd 9 NY3d 324 [2007], rearg denied 10 NY3d 745 [2008]), and plaintiff now appeals from a judgment granting the City’s motion for summary judgment dismissing the amended complaint against it. In affirming our order in the prior appeal, the Court of Appeals wrote that “[t]here are inherent risks associated with crossing the street. Those risks are multiplied when doing so indiscriminately . . . We must assume that adults, and children of [the] age [of plaintiffs son], will act prudently in doing so” (Haymon, 9 NY3d at 329). The City met its initial burden on the motion by establishing that it did not owe a legally recognized duty to plaintiff (see Gilson v Metropolitan Opera, 5 NY3d 574, 576-577 [2005]), and plaintiff failed to raise an issue of fact to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present — Centra, J.E, Peradotto, Bindley, Sconiers and Martoehe, JJ.