Ortiz v. New York City Housing Authority , 925 N.Y.S.2d 481 ( 2011 )

DeGrasse, J.,

dissents in a memorandum as follows: I respectfully dissent because I disagree with the majority’s conclusion that there is an issue of fact as to whether defendant permitted a dangerous condition to exist on its premises. While riding her scooter on a walkway, the infant plaintiff was struck by an unsecured gate that was being used by another child as a swing. Plaintiff’s theory of liability is that there was an “ongoing, recurrent hazardous condition of children swinging on the gate which existed for at least one year” prior to the accident. The majority correctly recognizes that an unlocked gate is not inherently dangerous. Nevertheless, the majority finds that the neighborhood children’s frequent use of the gate as a swing raises an issue as to whether defendant permitted a dangerous condition to exist.

This case is on all fours with Cuevas v 73rd & Cent. Park W Corp. (26 AD2d 239 [1966], affd 21 NY2d 745 [1968]) in which a child was injured when another child raised and dropped a cellar door on his hand. In affirming a dismissal of the complaint at the close of the plaintiff’s case, the Cuevas Court held that “one is not obligated to protect users, including children, who may use harmless things to cause themselves harm” (id. at 242). Unlike the majority, I find no way to distinguish this case from Cuevas on the basis of the placement and use of the gate. This record contains nothing, by way of an expert’s affidavit, for example, to raise a triable factual issue as to whether the gate was negligently placed. As to the children’s misuse of the gate, the overarching principle is that “foreseeability of misuse alone is insufficient to make out a cause of action” (see Kurshals v Connetquot Cent. School Dist., 227 AD2d 593, 594 [1996]; see also Barrett v Lusk, 265 AD2d 654, 655 [1999]). I would reverse the order below and grant defendant’s motion for summary judgment dismissing the complaint.