Plaintiff commenced this action to recover damages for personal injuries allegedly sustained when he tripped and fell over a tree stump located in Lemon Creek Park in Staten Island, New York. The park is owned by defendant CITY OF NEW YORK (hereinafter THE CITY), and is maintained by its DEPARTMENT OF PARKS (hereinafter PARKS DEPARTMENT). The park is located across the street from a development known as "CAPTAINS QUARTERS".It has been alleged by plaintiff that several of the homeowners who live at CAPTAINS QUARTERS had complained to their HOMEOWNERS' ASSOCIATION about THE CITY's lack of maintenance of the park property, e.g., failing to trim shrubs, prune trees or cut the grass. It has been further alleged that defendant CAPTAINS QUARTERS HOMEOWNERS' ASSOCIATION (hereinafter CAPTAINS QUARTERS) responded to these complaints by occasionally directing its landscaper to cut the grass at the subject location. In addition, it has been alleged that an individual homeowner, defendant FRANK COPPOTELLI, hired a separate landscaper, defendant JR'S TREE SERVICE, to groom the area of the park across the street from his home. Plaintiff claims that as a result of such grooming, a tree was removed but its stump was left protruding from the ground. It is further claimed that due to defendants' combined failure to properly maintain the property, e.g., to regularly cut the grass, the tree stump had become concealed beneath an overgrowth of grass when plaintiff tripped on same, resulting in injuries that included fractures to his right femur, ankle and hip.

In moving for summary judgment and dismissal of the complaint and all cross claims against it, CAPTAINS QUARTERS contends that it did not create the alleged defective condition which caused plaintiff to fall, nor did it have actual or constructive notice thereof. According to this defendant, it is undisputed that the accident occurred across the street from its development, on property which it did not own, and which it had no duty to maintain. CAPTAINS QUARTERS asserts that while several of its homeowners had made complaints about the park, they were advised that THE CITY owned the property, and that it was THE CITY's obligation to maintain it. It is further alleged that its only connection to the property is that its landscaper had occasionally been requested to mow the lawn in the area across the street from the development. CAPTAINS QUARTERS denies ever removing trees or shrubs, and claims that it was never informed of any complaints about the subject tree stump, which even plaintiff failed to observe before the accident. The only complaints which movant had received were about the unkept condition of the park.

In addition, CAPTAINS QUARTERS maintains that when it made inquiries to the PARKS DEPARTMENT regarding the condition of the park, it was advised that if it was unsatisfied with the landscaping, it would have to obtain a permit and pay for the landscaping itself. In response,

movant's president supposedly advised the PARKS DEPARTMENT that it would have the grass cut. Finally, CAPTAIN QUARTERS claims that the tree in question was cut down without its consent by a landscaper hired by an individual homeowner, and that the ensuing defect was, in any event, trivial defect and, therefore, not actionable. [*2]

In its cross motion for summary judgment, THE CITY contends that it cannot be held liable for plaintiff's injuries since it did not create the condition which allegedly caused plaintiff to trip and fall, nor did it have actual or constructive notice of the alleged condition. THE CITY further contends that even its general awareness of a lack of maintenance would not be sufficient to vest it with knowledge of the particular condition that caused plaintiff's injury. According to THE CITY, the tree stump was located in a grassy area of a park where no one appears to have seen it prior to plaintiff's fall. In addition, the PARKS DEPARTMENT supervisor who was deposed by plaintiff testified that he was unaware that anyone was given permission to cut down trees in the area of the park across the street from CAPTAINS QUARTERS.^[FN1] In light of the above, THE CITY contends that plaintiff cannot establish that it either created the alleged defect, or acquired actual or constructive notice of the condition prior to his fall. Therefore, its motion for summary judgment should be granted.

In opposition to the motion of the HOMEOWNERS' ASSOCIATION, plaintiff contends CAPTAINS QUARTERS undertook the responsibility of maintaining the park property across the street from its development, and that its failure to regularly cut the grass caused the tree stump to become hidden beneath some six inches of overgrowth. In this regard, plaintiff notes that it has been admitted by CAPTAINS QUARTERS that its landscaper did not cut grass in the park with the same frequency as the grass on its own property.

In opposition to THE CITY's cross motion, plaintiff contends that his claims of negligence against THE CITY are not based merely on the existence of the tree stump, but rather that it was THE CITY's failure to properly maintain the park, e.g, to cut the grass, that caused the stump to become dangerously hidden. According to plaintiff, THE CITY, as owner, had a duty to keep the premises in a reasonably safe condition. It is plaintiff's position that had the grass been properly maintained, the tree stump would have remained visible.

Plaintiff also contends that THE CITY's breach of its independent duty to inspect the premises charges it with notice of the alleged defect. On this point, plaintiff cites the EBT testimony of the park supervisor to the effect that the area in question was not inspected, and that even he had never been there.

Finally, in response to THE CITY's claim that it was not unusual for private volunteer groups to maintain city-owned park property, plaintiff argues that the ultimate responsibility for maintaining the park remains with THE CITY, and that it is chargeable with the negligence of any party to whom it has delegated its duty to maintain the park in a reasonably safe condition. [*3]

With regard to the motion of CAPTAINS QUARTERS, it is axiomatic that in order to prove a prima facie case of negligence, a plaintiff must establish the existence of a duty on the part of the defendant, a breach of that duty, and that the breach of said duty was a proximate cause of his or her injuries. Accordingly, it must be determined at the outset whether or not a defendant owed plaintiff a duty to maintain the subject premises in a reasonably safe condition (see Akins v. Glens Falls City School Distr., 53 NY2d 325, 332-333). Here, as neither the owner nor occupier of the park property on which plaintiff was injured, CAPTAINS QUARTERS owed plaintiff no duty to maintain those premises in a reasonably safe condition, nor did it assume any such obligation pursuant to contract. While, in certain circumstances, a person who voluntarily assumes the performance of a duty toward another is legally required to exercise reasonable care (cf. Wolf v. City of New York, 39 NY2d 568), it cannot be said that CAPTAINS QUARTERS, by choosing to cut the grass on one or more occasions, effectively assumed a duty to plaintiff or to anyone else to maintain that area of the park in a reasonably safe condition. In this regard, the Court is guided by the principles set forth in Espinal v. Melville Snow Contrs. (98 NY2d 136), wherein the Court of Appeals identified three situations in which a party who undertakes to render services for another may be said to have assumed a duty of care towards third persons for purposes of ascribing potential tort liability: (1) where the putative wrongdoer has launched or put into motion a force or instrument of harm; (2) where the performance has induced detrimental reliance upon its continuance, or (3) where the putative wrongdoer has entirely displaced another's duty to maintain the premises in a reasonably safe condition (id. at 140). Here, it cannot be said that any of these apply. In particular, it is the opinion of this Court that the mere mowing of a section of the subject park cannot be said to have "launched" into motion "a force or instrument of harm", nor is there any proof that plaintiff relied, detrimentally or otherwise, on this defendant's occasional grass-cutting. It is not even claimed that plaintiff expected defendant to maintain the section of the subject park. Finally, there is no proof that CAPTAINS QUARTERS had effectively taken over THE CITY's responsibility to maintain the park safely. Pertinently, the Court of Appeals in Espinal refused to extend the duty to maintain reasonable safety beyond these limits, even where the party had contractually obligated itself to

remove snow from the premises of another. In this case, any prospective liability must rest on an even more tenuous basis, i.e., voluntarism. Given the facts and circumstances presented here, it is the opinion of this Court CAPTAINS QUARTERS has established its entitlement to judgment as a matter of law, and that plaintiff, in opposition, has failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 562).

With regard to the cross motion of THE CITY, it is beyond dispute that a municipality is under a duty to maintain its park and playground facilities in a reasonably safe condition (see Nally v. County of Monroe, 305 AD2d 1014). In order to be held liable for a dangerous condition existing on its property, however, it must be established that THE CITY either created the condition complained of, or had actual or constructive notice of its existence (see Albano v. City of New York, 250 AD2d 555). Here, it is the opinion of this Court that there is no proof in any of the supporting papers which would indicate that THE CITY or its PARKS DEPARTMENT created the dangerous condition of which plaintiff complains. In fact, there is no proof that THE CITY or its PARKS [*4]DEPARTMENT performed any affirmative act , negligent or otherwise, relative to the condition of this park in the vicinity of plaintiff's injury, including maintenance (see Amabile v. City of Buffalo, 93 NY2d 471, 474). Therefore, it cannot be said that either of these defendants created the condition which caused plaintiff's injuries.

With regard to the question of actual or constructive notice, it is essential to identify the dangerous condition which allegedly caused plaintiff to fall, i.e., the concealed tree stump. In this case, the only proof pertinent to the issue of notice comes in the form of the complaints of overgrowth registered by CAPTAINS QUARTERS in relationship to the appearance of an area of the park that purportedly obstructed its residents' view of the waterfront. There was no indication of any defective or dangerous condition. Under these circumstances, there is no basis for charging THE CITY with actual notice of the hidden tree stump. In fact, it is well settled that even a general awareness that a dangerous condition may exist on its premises would be insufficient to provide THE CITY with actual notice of the particular condition which allegedly caused plaintiff's accident (see Piacquadio v. Recine Realty Corp., 84 NY2d 967; Gordon v. American Museum of Natural History, 67 NY2d 836). Nor is there any evidence from which constructive notice can be inferred, as any failure on the part of THE CITY or its PARKS DEPARTMENT to inspect the area of the park where the accident occurred is insufficient, standing alone, to establish liability. Here, there is no proof of the breach of any duty flowing from the municipality to plaintiff other than that which is owed to the general public (see Lauer v. City of New York, 95 NY2d 95, 101; Florence v. Goldberg, 44 NY2d at 195; Motyka v. City of Amsterdam, 15 NY2d 134, 139).

Accordingly, it is

ORDERED that the motion and cross motion for summary judgment of defendants CAPTAINS QUARTERS HOMEOWNERS ASSOCIATION, THE CITY OF NEW YORK and THE CITY OF NEW YORK DEPARTMENT OF PARKS is granted, and the complaint and all cross claims against these defendants are hereby severed and dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

Dated: 5/16/07/s/

HON. THOMAS P. ALIOTTA, J.S.C.

All parties notified by EVE/pt on 5/21/07

OCA e-submission: no Judge E-Mail