JONES v. CITY OF NEW YORK

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

Laney JONES, etc., appellant, v. CITY OF NEW YORK, respondent.

Decided: August 16, 2004

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, BARRY A. COZIER, and ROBERT A. LIFSON, JJ. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Brian J. Shoot and Frank Floriani of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Victoria Scalzo of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated August 5, 2003, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff was injured while playing near an abandoned scooter located on a vacant lot owned by the City of New York. Another infant playing at the lot placed a lighted match inside the gas tank of the scooter causing an explosion that resulted in the infant plaintiff's injuries.

The City demonstrated its prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Even assuming that the City breached its duty to maintain the vacant lot in a reasonably safe condition (see Parnell v. Holland Furnace Co., 234 App.Div. 567, 256 N.Y.S. 323, affd. 260 N.Y. 604, 184 N.E. 112;  see generally Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868), it cannot be held liable for the accident.   The act of the other infant in throwing a lighted match into the gas-filled tank “constituted a superseding cause which so attenuated any alleged negligence by the City from the ultimate injury that the imposition of liability would be unreasonable under the circumstances” (Dantzler v. New York City Hous. Auth., 269 A.D.2d 420, 702 N.Y.S.2d 890;  see Cruz v. City of New York, 6 A.D.3d 644, 775 N.Y.S.2d 549;  Barth v. City of New York, 307 A.D.2d 943, 763 N.Y.S.2d 101;  Clark v. New York City Hous. Auth., 277 A.D.2d 338, 717 N.Y.S.2d 216;  Stephenson v. Johnson & Son, 239 A.D.2d 402, 658 N.Y.S.2d 636;  O'Britis v. Peninsula Golf Course, 143 A.D.2d 123, 531 N.Y.S.2d 364).   In opposition, the plaintiff failed to raise a triable issue of fact.

Thus, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint.

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