        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

474
CA 14-02046
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


JON J. CHARLES, AN INFANT, BY HIS PARENTS
JAMES CHARLES AND ROBERTA CHARLES,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

VILLAGE OF MOHAWK, A MUNICIPAL CORPORATION
EXISTING PURSUANT TO LAWS OF STATE OF NEW YORK,
HERKIMER COUNTY, DEFENDANT-APPELLANT.


MURPHY, BURNS, BARBER & MURPHY, LLP, ALBANY, CONGDON, FLAHERTY,
O’CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (CHRISTINE
GASSER OF COUNSEL), FOR DEFENDANT-APPELLANT.

GEORGE FARBER ANEY, HERKIMER (JESSE B. BALDWIN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County (Erin
P. Gall, J.), entered May 21, 2014. The order, among other things,
denied the motion of defendant for summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained in a cemetery owned and maintained by defendant.
While playing in the cemetery, which was open to the public,
plaintiff, then age 7, climbed on to a cantilever gate at one of the
cemetery’s entrances and began “riding” the rolling gate as it was
being pushed by his cousin and her friend. Plaintiff failed to remove
his hands from the top rail of the gate as he approached the gate’s
rollers, and his fingers were injured as they passed through the
rollers. The complaint alleged, inter alia, that defendant was
negligent in failing to secure the gate so as prevent it from being
“ridden” by children. Supreme Court denied defendant’s motion for
summary judgment dismissing the complaint, and we affirm.

     “It is beyond dispute that landowners . . . have a duty to
maintain their properties in [a] reasonably safe condition” (Di Ponzio
v Riordan, 89 NY2d 578, 582). “Consistent with that duty, the degree
of care to be exercised must take into account the known ‘propensity’
of children ‘to roam and climb and play’ ” (Leone v City of Utica, 66
AD2d 463, 466, affd 49 NY2d 811, quoting Collentine v City of New
                                 -2-                           474
                                                         CA 14-02046

York, 279 NY 119, 125). Indeed, “New York State courts have
recognized ‘the special propensities of children and the prevailing
social policy of protecting them from harm’ . . . and have not
deprived them of a right to compensation for injuries caused by the
negligence of third parties . . . solely on account of their misuse of
an instrument found on the defendant’s premises” (Cruz v New York City
Tr. Auth., 136 AD2d 196, 201). “What accidents are reasonably
foreseeable, and what preventive measures should reasonably be taken,
are ordinarily questions of fact” (Diven v Village of Hastings-On-
Hudson, 156 AD2d 538, 539).

     Here, although we agree with defendant “that there is nothing
inherently dangerous about a gate that has no lock” (Ortiz v New York
City Hous. Auth., 85 AD3d 573, 574), defendant’s own submissions raise
triable issues of fact whether it was foreseeable that children such
as plaintiff would misuse the gate in the manner giving rise to the
accident. Defendant’s former superintendent of cemeteries testified
at his deposition that, although it “was not a typical occurrence,”
children sometimes played in the cemetery and, when that occurred, he
would ask them to leave. Defendant also submitted the deposition
testimony of plaintiff’s cousins, who testified that they had played
in the cemetery on prior occasions. “[A]t least once it is known that
children commonly play around . . . an artificial structure [such as
the gate], their ‘well-known propensities . . . to climb about and
play’ . . . create a duty of care on the part of a landowner to
prevent foreseeable risks of harm that might arise out of those
activities” (Holtslander v Whalen & Sons, 126 AD2d 917, 919 [Levine,
J., concurring in part and dissenting in part], mod on concurring in
part and dissenting in part mem below, 70 NY2d 962).

     Given that, “as a matter of law, [‘riding’ a gate] is not such an
‘extraordinary’ form of play as to break the causal connection between
the dangerous condition . . . and plaintiff’s injuries,” we conclude
that there is a triable issue of fact whether “[i]t was a natural and
foreseeable consequence of defendant’s failure to effectively secure
the [gate] against access that young children would play [on it],”
thereby resulting in injury (Roberts v New York City Hous. Auth., 257
AD2d 550, 550, lv denied 93 NY2d 811).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
