Opinion
November 25, 1991
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as it is asserted against the appellants; and it is further,
Ordered that upon searching the record pursuant to CPLR 3212 (b), summary judgment is awarded to the defendant Paul William Knitting, Inc., and the complaint is also dismissed insofar as it is asserted against that defendant; and it is further,
Ordered that the appellants are awarded one bill of costs, payable by the respondents.
On April 30, 1986, at approximately 7:50 A.M., while on duty in the Bronx, the plaintiff Robert Addolorato, a New York City police officer, responded to a radio report that police officers were in pursuit of a robbery suspect. Addolorato drove to the parking lot area of 391 Concord Avenue, which the appellants owned and managed. A radio report indicated that an anti-crime unit was chasing the robbery suspect along the railroad tracks adjacent to the parking lot. Addolorato was injured when a metal post supporting a barbed-wire fence broke as he attempted to climb over the fence.
We agree with the Supreme Court that this lawsuit is not barred by the rule of Santangelo v. State of New York ( 71 N.Y.2d 393), since the negligence complained of, the failure to maintain the fence in a safe condition or post warning signs, was not related to the situation that created the need for Addolorato's services (see, Rubsam v. Alexander, 177 A.D.2d 484; Murphy v. Creative Foods Corp., 170 A.D.2d 441; Janeczko v. Duhl, 166 A.D.2d 257; Guadagno v. Baltimore Ohio R.R. Co., 155 A.D.2d 981; Starkey v Trancamp Contr. Corp., 152 A.D.2d 358). However, where injuries are sustained as a result of an alleged failure to maintain property in a reasonably safe condition, liability is governed by the "standard of reasonable care under the circumstances whereby foreseeability shall be [the] measure of liability" (Basso v Miller, 40 N.Y.2d 233, 241). Under the circumstances of this case, we find, as a matter of law, that the appellants could not reasonably foresee that Addolorato would attempt to climb over a barbed-wire fence and injure himself in the process. Accordingly, the appellants are not liable for Addolorato's injuries (see, Rubsam v. Alexander, supra; Mulholland v. Willis, 177 A.D.2d 482).
Upon searching the record (CPLR 3212 [b]), we find that the nonappealing defendant Paul Williams Knitting, Inc., is also entitled to summary judgment dismissing the complaint insofar as it is asserted against it (see, Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106; Rubsam v. Alexander, supra; Coleman v. Village of Head of Harbor, 163 A.D.2d 456). Eiber, J.P., Rosenblatt, O'Brien and Ritter, JJ., concur.