Opinion
235.1 CA 18–00275
03-16-2018
Randy AGNESS and Annette Agness, Claimants–Respondents, v. STATE of New York, Defendant–Appellant. (Claim No. 123203.) (Appeal No. 2.)
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBERG OF COUNSEL), FOR DEFENDANT–APPELLANT. LOTEMPIO P.C. LAW GROUP, BUFFALO (BRIAN D. KNAUTH OF COUNSEL), FOR CLAIMANTS–RESPONDENTS.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBERG OF COUNSEL), FOR DEFENDANT–APPELLANT.
LOTEMPIO P.C. LAW GROUP, BUFFALO (BRIAN D. KNAUTH OF COUNSEL), FOR CLAIMANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
Memorandum:Claimants commenced this action seeking damages for injuries that Randy Agness (claimant) sustained as a result of being bitten by a rabid fox while camping at Sampson State Park. Defendant appeals from an interlocutory judgment denying defendant's motion for summary judgment dismissing the claim and granting claimants' motion for partial summary judgment on the issue of liability.
Defendant contends that the Court of Claims erred in granting claimants' motion and denying its motion inasmuch as it was engaged at all relevant times in a governmental function involving the exercise of discretion, and it was therefore immune from liability for money damages. We reject that contention. " ‘When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose’ " ( Turturro v. City of New York, 28 N.Y.3d 469, 477, 45 N.Y.S.3d 874, 68 N.E.3d 693 [2016], quoting Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ). "The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine ... ‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred’ " ( Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 447, 933 N.Y.S.2d 164, 957 N.E.2d 733 [2011], rearg. denied 18 N.Y.3d 898, 940 N.Y.S.2d 208, 963 N.E.2d 784 [2012], cert denied 568 U.S. 817, 133 S.Ct. 133, 184 L.Ed.2d 28 [2012], quoting Miller v. State of New York, 62 N.Y.2d 506, 513, 478 N.Y.S.2d 829, 467 N.E.2d 493 [1984] ).
Here, claimant's injuries allegedly resulted from defendant's negligent failure to take adequate steps to protect park patrons from reasonably foreseeable danger, despite having actual notice of a potentially rabid animal on the park premises hours before the incident. "It is well settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function" ( Caldwell v. Village of Is. Park, 304 N.Y. 268, 273, 107 N.E.2d 441 [1952] ). Further, "a municipality is under a duty to maintain its park ... facilities in a reasonably safe condition" ( Rhabb v. New York City Hous. Auth., 41 N.Y.2d 200, 202, 391 N.Y.S.2d 540, 359 N.E.2d 1335 [1976] ). That "duty goes beyond the mere maintenance of the physical condition of the park ... and, although strict or immediate supervision need not be provided, the municipality may be obliged to furnish an adequate degree of general supervision which may require the regulation or prevention of such activities [or other conditions] as endanger others utilizing the park" ( id. ). Thus, we conclude that the court properly determined that claimants' allegations that defendant failed "to minimize the risk posed with a relevant warning and effective notification to the [p]ark [p]olice" implicated defendant's proprietary, not governmental, duties.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.