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Christian v. City of Binghamton

Appellate Division of the Supreme Court of New York, Third Department
May 22, 1967
28 A.D.2d 611 (N.Y. App. Div. 1967)

Opinion

May 22, 1967


Appeal from an order and judgment of the Supreme Court, Broome County, granting respondent's motion for summary judgment pursuant to CPLR 3212. The sole issue we perceive in this case in its present status is whether appellant has adduced evidentiary facts that she was more than a licensee when injured upon respondent's property (CPLR 3212 [b]). Appellant asserts that she drove to a public beach operated by respondent and known as "Sandy Beach" to run a dog and that on arrival she was told by a lifeguard not to run the dog near the beach but to take the dog to another area where it could run freely. However, there is no allegation that he told her specifically where to go, but rather only that he pointed in the direction of another area to the west where people from time to time launched motor boats. This area was about one-half mile from the bathing beach and was known as "The Point". The city did not have any employees at the spot and did not maintain any boat launching facilities there, but as far as we can determine owned the land. While in this area she caught her foot in a wire loop that was partially buried in the ground and fell sustaining the injuries complained of. Respondent clearly owes those who avail themselves of its recreational areas a duty to maintain such facilities in a reasonably safe condition, and this is so whether or not an admission fee is charged ( Caldwell v. Village of Is. Park, 304 N.Y. 268). It seems clear upon this record it can be said that the defendant municipality extended to its citizens an invitation to enter and use a "recreational area" known as "Sandy Beach". But here, there are three other possible questions: (1) was there a similar invitation to enter and use the area known as "The Point", (2) was plaintiff's purpose one of those for which the premises known as "The Point" was thrown open, or (3) was "The Point" within the area of invitation applicable to "Sandy Beach". (Further and additional questions of course may develop upon the trial.) The record contains evidence on each side of all three of these questions outlined above. Respondent asserts that the area in which appellant fell was not a maintained recreational facility. However, despite respondent's attitude toward the area, it is inferable from appellant's account of what transpired that a lifeguard, respondent's employee, in fact directed appellant to the area involved for the purpose of running a dog. Also the whole area is one continuous strip and there is no indication that there existed any demarcation between a maintained and unmaintained area. Thus on the present state of the record we cannot agree with Special Term's finding that there exists no triable factual issues as to the duty owed to appellant by respondent at the place where she fell and, accordingly, the order and judgment appealed from should be reversed. Order and judgment reversed, on the law and the facts, with costs to abide the event. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.


Summaries of

Christian v. City of Binghamton

Appellate Division of the Supreme Court of New York, Third Department
May 22, 1967
28 A.D.2d 611 (N.Y. App. Div. 1967)
Case details for

Christian v. City of Binghamton

Case Details

Full title:GRAYCE CHRISTIAN, Appellant, v. CITY OF BINGHAMTON, Respondent

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 22, 1967

Citations

28 A.D.2d 611 (N.Y. App. Div. 1967)

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