Zachary Lomnitz v. Town Woodbury

In a negligence action to recover damages for personal injuries, etc., the defendant Town of Woodbury appeals, as limited by its brief, from so much of an order of the Supreme Court, Orange County, entered August 14, 1980, as denied its motion for summary judgment. Order reversed insofar as appealed from, without costs or disbursements, and motion granted. Zachary Lomnitz (hereafter plaintiff) was injured on August 15, 1976 in the Town of Woodbury when he and his bicycle ended up in an open drainage ditch that runs parallel to Schunnemunk Road. According to his examination before trial, plaintiff was returning to the bungalow colony where he and his family were staying for the summer. Plaintiff was 11 years old at the time. He had owned the 10-speed, 24-inch bicycle for several months prior to the accident and, "once in a while", had previously cycled on the road where he fell. Plaintiff also testified that he was "driving" the bicycle down the hill slowly. He turned the wheel "a little bit [and] went into the ditch." There was no shoulder between the road and the ditch. There were no holes in the road, but there were some broken stones around. Plaintiffs injuries included a "possible" skull fracture and cerebral hemorrhage. The complaint alleged that the accident occurred because of the negligence of the defendant town in maintaining Schunnemunk Road "and or the roadbed and shoulder appurtenant thereto." In the bill of particulars the towns negligence was specified as the [81 A.D.2d 828 Page 829]