| Sarbak v Sementilli |
| 2008 NY Slip Op 04856 [51 AD3d 1001] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Kyle Sarbak et al., Appellants, v Richard Sementilli,Respondent. |
—[*1] Penino & Moynihan, LLP, White Plains, N.Y. (Stephen J. Penino of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Putnam County (O'Rourke, J.), dated March 29, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
On July 9, 2005, at approximately 9:30 p.m., the infant plaintiff was playing with otherchildren who had been invited to the defendant's house when he allegedly fell from an unstablerock on top of a stone retaining wall on the defendant's property. The children were usingflashlights. One side of the stone retaining wall was flush with the yard, and there was a six- orseven-foot drop to a patio on the other side of the wall. The retaining wall was not straight, andthe infant plaintiff fell from a "V"-shaped corner area of the wall. He stated that he fell from the"path on the rock wall." There were trees growing from the patio in the area where the infantplaintiff fell, some of which were at or above the height of the retaining wall. When he fell, heallegedly was impaled upon a three-foot long, one-half-inch diameter metal rod which wasprotruding from the patio and supporting one of the tree saplings. The area allegedly was not litat the time.
A landowner has a duty to maintain his premises in a reasonably safe condition to preventforeseeable injuries (see Basso v Miller, 40 NY2d 233 [1976]). This duty includesconsideration of the known propensities of children to roam, climb, and play, often in ways thatimperil their safety (see Collentine v City of New York, 279 NY 119, 125 [1938];Morr v County of Nassau, 22 AD3d 728, 728-729 [2005]; [*2]Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539[1989]). What accidents are reasonably foreseeable, and what preventive measures shouldreasonably be taken, are ordinarily questions of fact (see Diven v Village ofHastings-On-Hudson, 156 AD2d at 539; see Holtslander v Whalen & Sons, 70 NY2d962 [1988], modfg for reasons stated in mem of Levine, J. concurring in part and dissentingin part, 126 AD2d 917 [1987]; Suazo v Ajay, Inc, 305 AD2d 662 [2003]).
The defendant argued that there was no evidence of any dangerous or defective condition onhis property, and that even if there was, he did not create or have actual or constructive notice ofsuch a condition. The defendant failed to make a prima facie showing on either basis (seeHowe v Flatbush Presbyt. Church, 48 AD3d 419 [2008]; Hudlin v Epicurean Deli,46 AD3d 752 [2007]; Jackson v Fenton, 38 AD3d 495, 496 [2007]; Givens vAmsco Auto Parts Inc., 11 AD3d 327, 327-328 [2004]). Accordingly, his motion forsummary judgment should have been denied regardless of the sufficiency of the opposing papers(see Khamis v CG Foods, Inc., 49 AD3d 606 [2008]). Lifson, J.P., Miller, Dillon andEng, JJ., concur.