SERRANO SERRANO v. CITY OF NEW YORK (1998)

Supreme Court, Appellate Division, First Department, New York.

Christian SERRANO, an Infant, by His Parent and Natural Guardian, Anibal SERRANO, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.

Decided: December 17, 1998

Before NARDELLI, J.P., WALLACH, RUBIN and WILLIAMS, JJ.

Stephen C. Glasser, for Plaintiffs-Appellants. Janet L. Zaleon, for Defendant-Respondent.

Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered August 20, 1997, which granted defendant City's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

This is an action to recover for injuries allegedly sustained by the infant plaintiff as the result of another child's setting fire to flammable aerosol paint found in a rubbish-strewn vacant lot owned by defendant City, which children allegedly used for play. The complaint was properly dismissed because, even assuming that the lot can be likened to a park and that the City had notice that rubbish fires periodically occurred there, such condition did not constitute ultra hazardous and criminal activity that the City had a duty to prevent (Benjamin v. City of New York, 64 N.Y.2d 44, 46, 484 N.Y.S.2d 525, 473 N.E.2d 753).

MEMORANDUM DECISION.

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