RUBSAM v. ALEXANDER


177 A.D.2d 484 (1991)

Louis H. Rubsam et al., Respondents, v. Emily Alexander, as Executrix of William F. Alexander, Deceased, et al., Appellants, and John Alexander, Respondent

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

November 4, 1991


Ordered that the order is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, payable by the plaintiffs, the motions and cross motions are granted, and, upon searching the record and granting summary judgment to the defendant John Alexander, the complaint, third-party complaint, and all cross claims are dismissed.

On the evening of October 1, 1982, the injured plaintiff, a Suffolk County police detective, was on the premises of the Admiralty Condominium complex to investigate a rash of burglary complaints. While engaged in a nighttime stakeout on the premises, he received a report of a suspicious vehicle on the condominium grounds. After investigating this report and finding nothing, he proceeded to his stakeout position. Rather than passing through the condominium complex gate, or the security gate adjacent to the accident site, he scaled a five-foot high wall separating the condominium complex from Montauk Highway, and was injured as he landed on a pile of hardened concrete which had been discarded at the base of the wall.

We agree with the conclusion of the Supreme Court that the plaintiffs' suit is not barred by the rule of Santangelo v State of New York (71 N.Y.2d 393), as the negligence complained of, the failure to maintain the premises in a safe condition which caused the injury, was not related to the situation which created the need for the injured plaintiff's services (see, Murphy v Creative Foods Corp., 170 A.D.2d 441; Janeczko v Duhl, 166 A.D.2d 257; Sharkey v Mitchell's Newspaper Delivery, 165 A.D.2d 664; Guadagno v Baltimore & Ohio R. R. Co., 155 A.D.2d 981; Starkey v Trancamp Contr. Corp., 152 A.D.2d 358). However, where injuries are sustained as a result of an alleged failure to maintain property in a reasonably safe condition, liability is governed by the "standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability" (Basso v Miller, 40 N.Y.2d 233, 241). Under the circumstances presented by this case, we find, as a matter of law, that the appellants could not reasonably foresee that the plaintiff would climb over the wall of the condominium complex and jump down onto its grounds, thereby injuring himself (see, Guida v 154 W. 14th St. Co., 13 A.D.2d 695, affd 11 N.Y.2d 731; Beedenbender v Midtown Props., 4 A.D.2d 276). Accordingly, the appellants may not be held liable for the unforeseeable injuries suffered (see, Mulholland v Willis, 177 A.D.2d 482 [decided herewith]).

Furthermore, after searching the record (see, CPLR 3212 [b]) we find that the nonappealing defendant John Alexander is also entitled to summary judgment dismissing the complaint as against him (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106; Coleman v Village of Head of Harbor, 163 A.D.2d 456). The unforeseeable manner in which the plaintiff was injured, coupled with the fact that this defendant, the son of the deceased landowner, merely consented to the entry of the police on the premises to conduct their stakeout, precludes any finding of liability against him. Thus, the complaint and all derivative cross claims and third-party complaints are dismissed in their entireties.


Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases