Leone v. City of Utica

Full title: ANTHONY LEONE, an Infant, by ROSEMARY LEONE, His Mother, et al.…

Court: Court of Appeals of the State of New York

Date published: Mar 18, 1980

49 N.Y.2d 811 (N.Y. 1980)

426 N.Y.S.2d 980

403 N.E.2d 964

Opinion

Argued February 6, 1980

Decided March 18, 1980

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, THOMAS J. MURPHY, J.

Lawrence P. George, Corporation Counsel (Bernard Samuels and Eric M. Alderman of counsel), for appellant.

Earle C. Bastow, Waddie N. Kalil and John E. Hunt for respondents.

MEMORANDUM.

The order appealed from should be affirmed with costs, for those reasons relating to duty and proximate cause stated in the opinion of Presiding Justice MICHAEL F. DILLON at the Appellate Division ( 66 A.D.2d 463). We note in addition that the trial court did not abuse its discretion in denying appellant's belated application for permission to assert a cross claim.

JASEN, J. (concurring).

While I vote for affirmance, I do so solely on constraint of this court's prior decision in Scurti v City of New York ( 40 N.Y.2d 433). In my opinion, it is both unreasonable and improvident to hold a landowner liable for personal injuries sustained on adjoining property which he does not own, where, as here, the precautions which the landowner would be required to undertake to prevent such injury would be unduly burdensome.

Chief Judge COOKE and Judges GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge JASEN concurs in a separate memorandum.

Order affirmed, with costs, in a memorandum.