TUSHAJ v. CITY OF NEW YORK (1999)

Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered March 9, 1998, which dismissed the complaint pursuant to the trial court's grant of defendant's motion to dismiss the complaint prior to the close of plaintiffs' evidence at a jury trial, unanimously affirmed, without costs.

The infant plaintiff sustained injuries when he fell from a cliff in Fort Tryon Park.   At the time of his fall, the child, then 21/212 years-old, was in the company and under the supervision of his grandparents.   Although plaintiffs claimed that the cliff from which the infant fell was hidden by vegetation, their own photographic exhibit established that the cliff was open, obvious and clearly within the grandmother's view from her vantage point, as she stood on a wall 10 to 15 feet away from the cliff at the time of the accident.   Moreover, the grandmother herself testified that she called out “No, Christopher, no,” immediately upon seeing the infant plaintiff walking on the ledge and thereafter pursued him, plainly evidencing her realization that it was dangerous for the boy to be there.   We further note that the testimony of a Parks Department employee that the site of the accident afforded the park visitor a view of a “wide vista” of the Hudson River was entirely uncontradicted.

Given the evidence described above, plaintiffs' claim that the cliff was hidden by vegetation was incredible as a matter of law (see, e.g., Weigand v. United Traction Co., 221 N.Y. 39, 42, 116 N.E. 345;  Annunziata v. Colasanti, 126 A.D.2d 75, 81, 512 N.Y.S.2d 381, citing Walker v. Murray, 255 A.D. 815, 7 N.Y.S.2d 336, affd. 280 N.Y. 709, 21 N.E.2d 209;  Mortimer v. Lynch, 119 A.D.2d 558, 559, 500 N.Y.S.2d 560).   Indeed, because it is clear that the cliff was an open and obvious natural feature of the landscape, the City had no duty to post warning signs or to erect additional barriers to protect park visitors from it (see, e.g., Plate v. City of Rochester, 217 A.D.2d 984, 629 N.Y.S.2d 600, lv. denied 87 N.Y.2d 801, 637 N.Y.S.2d 688, 661 N.E.2d 160;  Tarricone v. State of New York, 175 A.D.2d 308, 571 N.Y.S.2d 845, lv. denied 78 N.Y.2d 862, 576 N.Y.S.2d 220, 582 N.E.2d 603;   Diven v. Village of Hastings-On-Hudson, 156 A.D.2d 538, 539, 548 N.Y.S.2d 807), and the complaint against the City, premised upon the existence of such a duty, was properly dismissed.

MEMORANDUM DECISION.