Clapman v. City of New York

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed, with costs. This is an action to recover for personal injuries suffered by appellant David Clapman, who in July 1977 was struck by a foul ball while sitting in the box seat area of Yankee Stadium behind the Yankee dugout. Appellants (Clapman and his wife) allege that respondents (the stadium owner, its lessee and operator, its architect, and its vending concessionaire) were negligent in: (1) not extending the protective screen behind home plate to the area where Clap-man was seated; (2) providing insufficient seating behind the existing screen; and (3) allowing Clapman’s view of the play to be obstructed by vendors who moved about the aisles during the game. Respondents’ motions for summary judgment were properly granted. Appellants failed to raise any issue of material feet concerning a failure to erect a screen providing adequate protection in the area behind home plate, where the danger of being hit by foul balls is greatest, or to provide sufficient seats behind the screen to accommodate as many spectators as reasonably may be expected to desire such seating. In such circumstances there is no breach of duty by respondents. (Davidoff v Metropolitan [671] Baseball Club, 61 NY2d 996; Akins v Glens Falls City School Dist., 53 NY2d 325.) Appellants’ additional allegation that Clapman’s view of the foul ball that hit him was obstructed by stadium vendors is contradicted by his own deposition testimony, and in any event fails to raise any issue requiring a trial. Given the location of the vendors and of Clapman’s seat, and our prior decisions in Davidoff and Akins, respondents had no duty to insure that vendors moving about in the stadium did not interfere with Clap-man’s view. Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur. On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.