Opinion
2014-02-27
Jennifer COCCO, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Law Office of Richard E. Lerner, P.C., New York (Richard E. Lerner of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
Law Office of Richard E. Lerner, P.C., New York (Richard E. Lerner of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered February 13, 2013, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
In this action for personal injuries, plaintiff alleges that she was walking on the sidewalk, heading south on Lexington Avenue between 96th and 95th Streets, when a baseball coming from a schoolyard, owned and maintained by defendants, struck her in the face. Defendants established their prima facie entitlement to judgment as a matter of law by establishing that they neither owed nor violated a duty of care to plaintiff. Even accepting plaintiff's allegations and testimony as true, defendants, as “the proprietor[s] of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest” ( Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 330, 441 N.Y.S.2d 644, 424 N.E.2d 531 [1981];see Haymon v. Pettit, 9 N.Y.3d 324, 849 N.Y.S.2d 872, 880 N.E.2d 416 [2007]; Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 247–248, 850 N.Y.S.2d 38 [1st Dept.2008],affd.10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 N.E.2d 719 [2008] ). Accordingly, defendants cannot be held liable for the injuries suffered by plaintiff who was struck by a baseball while walking on a sidewalk adjacent to a school yard that contained a ball field.
Plaintiff failed to demonstrate that further discovery is necessary for her to properly respond to defendant's motion.
We have considered plaintiff's remaining arguments and find them unavailing. MAZZARELLI, J.P., ACOSTA, RENWICK, FREEDMAN, MANZANET–DANIELS, JJ., concur.