Londa v. Estates

359 N.E.2d 980, 40 N.Y.2d 1001, 391 N.Y.S.2d 390, 1976 N.Y. LEXIS 3193

Opinion

Memorandum. The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division, Second Department, for review of the facts pursuant to CPLR 5613. A jury question as to negligence was presented under the rule of the recently decided status cases. (Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Barker v Parnossa, Inc., 39 NY2d 926; Parish v Henneberry Road Farms, 39 NY2d 932.) Hence, it was error for the Appellate Division to reverse, on the law, the judgment entered in favor of the plaintiff. We do not, of course, by this determination, approve the trial court’s charge with respect to the duty owed the infant trespasser by the defendant landowner. The charge was not a correct statement of the law but, on this appeal, the error is of no consequence since, even under the restrictive analysis of the trial court, the jury found the defendant to be liable.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur; Judge Fuchsberg taking no part.

Order reversed, with costs, and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.