Viall ex rel. Viall v. State

Memorandum by the Court. Appeal from a judgment dismissing claimant’s negligence action against the State. Within the City of Meehanicville and for a distance of approximately 400 feet along the Barge Canal, the State owned and maintained a dock or marina. Part of the property was in the process of being leased to the city for recreational facilities. The infant claimant, while playing with other children on that part of the dock under the exclusive control of the State, was caused to fall and sustain injuries when she tripped over a metal bumper. At the close of the claimant’s case the court dismissed the claim, holding that the infant claimant was a trespasser and there was no proof of any wanton, intentional or malicious act on the part of the State. The record establishes that the infant claimant was on the State property for her own personal enjoyment and was not invited to the particular dock for any purpose in furtherance of the business of the State. It was not found that there was any dangerous trap against which a trespasser, such as the infant claimant, would be protected nor does the fact that persons may have used the dock facilities with the State’s knowledge, prior to the accident, afford a basis for recovery. (See Ryan v. State of New York, 13 Misc 2d 282, 286, affd. 19 A D 2d 696.) Judgment affirmed, without costs. Herlihy, J. P., Reynolds, Taylor, Aulisi and Hamm, JJ., concur.