PEREZ v. RODRIGUEZ

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

Haysten PEREZ, etc., et al., appellants, v. William RODRIGUEZ, respondent, et al., defendants.

Decided: May 29, 2007

A. GAIL PRUDENTI, P.J., STEVEN W. FISHER, MARK C. DILLON, and THOMAS A. DICKERSON, JJ. Weitz, Kleinick & Weitz (Wilson, Grochow, Drucker & Nolet, New York, N.Y. [Charles J. Nolet] of counsel), for appellants. Marshall, Conway & Wright, P.C., New York, N.Y. (Amy S. Weissman of counsel), for respondent. Jacobson & Schwartz, Rockville Centre, N.Y. (Henry J. Cernitz of counsel), for defendants Julio Gutierrez and Rosa S. Smith.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), dated March 31, 2006, as granted that branch of the motion of the defendant William Rodriguez which was for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 A landowner has a duty to exercise reasonable care to maintain his or her premises in a safe condition (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).   The respondent satisfied his burden of establishing that he neither created nor had actual or constructive notice of an allegedly dangerous condition on his property that allegedly caused the infant plaintiff's injuries (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774;  see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In opposition, the plaintiffs failed to raise a triable issue of fact (see Negron v. St. Patrick's Nursing Home, 248 A.D.2d 687, 671 N.Y.S.2d 275).

 Regardless of whether the respondent was aware that the planter which fell on the infant plaintiff was not secured to the pillar on which it stood, the infant plaintiff's act of grabbing the edge of the planter and trying to lift himself up to do a chin-up constituted a superseding cause of such an extraordinary nature that it was not an occurrence which should have been guarded against in the exercise of reasonable care in maintaining the property in a safe condition (see Freeman v. Cobos, 240 A.D.2d 698, 659 N.Y.S.2d 424).   Thus, the imposition of liability would be unreasonable under the circumstances (see Siso v. Tawil, 2 A.D.3d 828, 769 N.Y.S.2d 384;  Barth v. City of New York, 307 A.D.2d 943, 943-944, 763 N.Y.S.2d 101;  Dantzler v. New York City Hous. Auth., 269 A.D.2d 420, 702 N.Y.S.2d 890;  Freeman v. Cobos, supra;  Smith v. County of Nassau, 232 A.D.2d 474, 475, 648 N.Y.S.2d 343).   Accordingly, the Supreme Court properly granted that branch of the respondent's motion which was for summary judgment dismissing the complaint insofar as asserted against him.

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