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LEONE v. CITY OF UTICA

66 A.D.2d 463 (1979)

Anthony Leone, an Infant, by Rosemary Leone, His Mother, et al., Respondents, v. City of Utica, Appellant

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

February 28, 1979

Attorney(s) appearing for the Case

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

Wolfe & Kalil (Earle C. Bastow, Waddie N. Kalil and John E. Hunt of counsel), for respondents.

MOULE, J. P., and SCHNEPP, J., concur with DILLON, J.; CARDAMONE and HANCOCK, JR., JJ., dissent and vote to reverse the judgment and dismiss the complaint in an opinion by CARDAMONE, J.

DILLON, J.

We are here concerned with the liability which may befall a municipality for injuries sustained by a child on railroad property located adjacent to a city-owned and regularly used park and playground. While the degree of care to be imposed upon a municipality in a particular case is necessarily dependent upon the attendant circumstances and is thus ordinarily a jury question (Caldwell v Village...

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