Addolorato v. Safeguard Chemical Corp.

In an action to recover damages for personal injuries, etc., the defendants Safeguard Chemical Corporation, Peter Piranian, Jr., and Roxanne Nersesian appeal from an order of the Supreme Court, Suffolk County (Lama, J.), entered March 21, 1990, which denied their motion for summary judgment dismissing the complaint insofar as it is asserted against them. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as it is asserted against the appellants; and it is further, Ordered that upon searching the record pursuant to CPLR 3212 (b), summary judgment is awarded to the defendant Paul William Knitting, Inc., and the complaint is also dismissed insofar as it is asserted against that defendant; and it is further, Ordered that the appellants are awarded one bill of costs, payable by the respondents. On April 30, 1986, at approximately 7:50 A.M., while on duty in the Bronx, the plaintiff Robert Addolorato, a New York City police officer, responded to a radio report that police officers were in pursuit of a robbery suspect. Addolorato drove to the parking lot area of 391 Concord Avenue, which the appellants owned and managed. A radio report indicated that an anti-crime unit was chasing the robbery suspect along the railroad tracks adjacent to the parking lot. Addolorato was injured when a metal post supporting a barbed-wire fence broke as he attempted to climb over the fence. We agree with the Supreme Court that this lawsuit is not barred by the rule of Santangelo v State of New York (71 NY2d 393), since the negligence complained of, the failure to maintain the fence in a safe condition or post warning signs, was not related to the situation that created the need for Addolorato’s services (see, Rubsam v Alexander, 177 AD2d 484; Murphy v Creative Foods Corp., 170 AD2d 441; Janeczko v Duhl, 166 AD2d 257; Guadagno v Baltimore & Ohio R. R. Co., 155 AD2d 981; Starkey v Trancamp Contr. Corp., 152 AD2d 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 [the] measure of liability” (Basso v Miller, 40 NY2d 233, 241). Under the circumstances of this case, we find, as a matter of law, that the appellants could not reasonably foresee that Addolorato would [682] attempt to climb over a barbed-wire fence and injure himself in the process. Accordingly, the appellants are not liable for Addolorato’s injuries (see, Rubsam v Alexander, supra; Mulholland v Willis, 177 AD2d 482). Upon searching the record (CPLR 3212 [b]), we find that the nonappealing defendant Paul Williams Knitting, Inc., is also entitled to summary judgment dismissing the complaint insofar as it is asserted against it (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Rubsam v Alexander, supra; Coleman v Village of Head of Harbor, 163 AD2d 456). Eiber, J. P., Rosenblatt, O’Brien and Ritter, JJ., concur.