In Cocco v. City of New York, the Appellate Division, First Department yesterday affirmed the dismissal of a personal injury lawsuit arising from an errant baseball striking the plaintiff.
“[P]laintiff alleges that she was walking on the sidewalk, heading south on Lexington Avenue between 96th and 95th Streets, when a baseball coming from a schoolyard, owned and maintained by defendants, struck her in the face.”
The appellate court held that the trial court properly granted summary judgment to defendants:
Defendants established their prima facie entitlement to judgment as a matter of law by establishing that they neither owed nor violated a duty of care to plaintiff. Even accepting plaintiff’s allegations and testimony as true, defendants, as the proprietor[s] of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest. Accordingly, defendants cannot be held liable for the injuries suffered by plaintiff who was struck by a baseball while walking on a sidewalk adjacent to a school yard that contained a ball field.
It also held that plaintiff failed to demonstrate that further discovery was necessary for her to properly respond to defendant’s motion.