Opinion
Argued January 5, 1982
Decided February 11, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ALFRED J. CALLAHAN, J.
Richard T. Farrell for appellants.
Nathan Cyperstein and Alvin P. Bluthman for respondent.
Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division insofar as it was there concluded that there was no duty owed to plaintiffs by defendant-respondent, nor any breach of an asserted duty ( 79 A.D.2d 579).
Concur: Judges JASEN, GABRIELLI, WACHTLER and MEYER. Chief Judge COOKE dissents and votes to reverse in a separate opinion in which Judge FUCHSBERG concurs. Taking no part: Judge JONES.
I cannot join the majority in adopting the conclusion of the Appellate Division that the defendant property owner owed no duty to plaintiffs. I therefore dissent.
The Appellate Division said it had "grave doubt" that the property owner, Anthony Aurrichio, Inc., owed a duty to the plaintiffs. The evidence adduced at trial, however, was certainly sufficient to present a factual issue for the jury as to the existence of such a duty. There was ample evidence for the jury to conclude that the owner had both actual notice and constructive notice of sledding on the path that led to its driveway and parking lot. Plaintiff John Leath testified that there was sledding "every time it snowed". Ralph Milano, the driver of the car that collided with the plaintiffs, stated in a pretrial deposition introduced at trial that he had observed sledding "numerous times." He testified at trial that he had brought this to Anthony Aurrichio's attention "maybe once or twice." In addition, as the Appellate Division itself noted, there was evidence that it was obvious that the path exited into the driveway and parking lot. In the face of the record here, it cannot be said as a matter of law that the accident was not foreseeable and that the owner owed no duty to take steps to prevent collisions between sledders and automobiles (see Scurti v City of New York, 40 N.Y.2d 433; Basso v Miller, 40 N.Y.2d 233). Nor am I persuaded that, as a matter of law, there were no precautions that could have been taken to prevent the accident.
Accordingly, I would reverse the order of the Appellate Division and remit to that court for a consideration of the facts.
Order affirmed, etc.