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-OnHudson, 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