| Escalet v New York City Hous. Auth. |
| 2008 NY Slip Op 08405 [56 AD3d 257] |
| November 6, 2008 |
| Appellate Division, First Department |
| Desteny Escalet, an Infant, by Her Mother and Natural Guardian,Melissa Quinonez, Respondent, v New York City Housing Authority,Appellant. |
—[*1] Salzman & Winer, New York (Mitchell G. Shapiro of counsel), for respondents.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or aboutJanuary 8, 2008, which denied defendant's motion to dismiss the complaint, unanimouslyreversed, on the law, without costs, and the motion granted. The Clerk is directed to enterjudgment in favor of defendant dismissing the complaint. Appeal by defendant from order, samecourt (John A. Barone, J.), entered June 18, 2007, which granted plaintiff's motion for leave tofile a late notice of claim, unanimously dismissed, without costs, as academic.
The infant plaintiff was injured when she fell from the top of a fence that was approximately10 to 12 feet tall. The fence surrounded a grass area that was not a designated play area.Although the fence was locked, plaintiff gained access to the area where the accident occurred bycrawling through a hole in the fence that had allegedly been in existence for more than five years.Plaintiff fell from a different section of the fence after climbing it to retrieve a ball that hadbecome lodged there. Plaintiff does not assert that the portion of the fence from which she fellwas defective. Instead, she claims that the presence of the hole facilitated the accident by failingto prevent her from accessing the grass area in the first place.
The complaint should have been dismissed because the connection between defendant'salleged neglect of the fence and plaintiff's injury is too attenuated to conclude that, evenaccepting the allegations in the complaint as true, defendant's malfeasance proximately causedthe accident. Rather, the presence of the hole in the fence "merely furnished the condition oroccasion for the occurrence of the event rather than one of its causes" (Sheehan v City of NewYork, 40 NY2d 496, 503 [1976]). The law draws a "sharp distinction" between such afacilitating condition and an act that is a proximate cause of an accident (Lee v New York City Hous. Auth., 25AD3d 214, 219 [2005]). Concur—Mazzarelli, J.P., Catterson, McGuire, Acosta andRenwick, JJ.