ON BEHALF OF DEANDRE v. RADINCIC (2019)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 5, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie that he neither created nor had actual or constructive notice of the alleged dangerous condition of his backyard, where the infant plaintiff (Deandre) was injured playing on tree logs (see Delosangeles v. Asian Ams. for Equality, Inc., 40 A.D.3d 550, 551, 838 N.Y.S.2d 26 [1st Dept. 2007] ).  Defendant testified that he had had the tree cut down and the logs stacked along a property fence line several years earlier and had never seen the logs anywhere else on the property.  Deandre testified that he and his friends had arranged the logs in a line and were jumping from log to log when he fell.  The record shows that no one had complained to defendant, an out-of-possession landlord, about the logs before the accident, and Deandre testified that he had been playing on them for about 10 minutes when he fell.

Plaintiffs contend that it was foreseeable that children would move the logs.  However, absent evidence of earlier incidents involving the logs or any complaint made to defendant about the logs, the possibility of children playing with them does not render the presence of the logs in the backyard foreseeably dangerous (see Osorio v. Thomas Balsley Assoc., 69 A.D.3d 402, 403, 892 N.Y.S.2d 92 [1st Dept. 2010] ).

Plaintiffs also failed to raise an issue of fact as to whether Deandre could fully appreciate the risks of jumping onto logs.  As Deandre himself created the danger by setting up and jumping on the logs while playing with his friends, plaintiffs cannot show that he was faced with a risk that was unassumed, concealed or increased (see Barretto v. City of New York, 229 A.D.2d 214, 218–219, 655 N.Y.S.2d 484 [1st Dept. 1997], lv denied 90 N.Y.2d 805, 661 N.Y.S.2d 831, 684 N.E.2d 281 [1997] ).