Practice point: The Appellate Division reversed the trial court and dismissed the complaint in in this action where plaintiff was injured when a child, riding a
bicycle, struck her from behind as she walked on an interior walkway of
defendant's complex. Defendant submitted the testimony of a member of
its private security force, who stated that defendant employed five to
seven security guards during normal business hours. He stated that
people traversed the property, and some "occasionally" rode bicycles,
but this happened "rarely." Nevertheless, defendant had a rule against
riding bicycles in the area of the incident, and there were a number of signs posting
this rule. Defendant also had surveillance cameras on the interior and
exterior of the property, and the security officer further stated that
when someone was found riding a bicycle, either the bicycle would be confiscated, a summons would be issued, or a warning would be issued.
The Appellate Division found that the defendant had demonstrated that it
provided the requisite minimal precautions to protect people from the
foreseeable harm of bicycle riders, and there was nothing else that it reasonably could have done.
Student note: Plaintiff failed to submit opposition to the motion, and the arguments she has set forth in her appellate brief are unpreserved. In any event, the Appellate Division determined that plaintiff's arguments do not
present triable issues of fact that would warrant the denial of the defendant's motion.
Case: DeJesus v. Parkchester S. Condominium Inc., NY Slip Op 05016 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: A motion for leave to serve and file an amended notice of claim is denied.
