Williams v. New York City Transit Authority

*977The 13-year-old plaintiff Edward Williams (hereinafter the infant plaintiff) entered a construction area on the Franklin Avenue Shuttle tracks through a gap in a fence at the Lincoln Place overpass (hereinafter the Lincoln Place fence). He then walked one block to the Eastern Parkway overpass where he attempted to climb a second fence (hereinafter the Eastern Parkway fence). The Eastern Parkway fence allegedly shifted, and the infant plaintiff fell approximately 20 feet to the track bed, sustaining injuries.

In response to the appellants’ respective prima facie showings of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), the plaintiffs established the existence of triable issues of fact. Contrary to our dissenting colleague’s conclusion, triable issues of fact exist, inter alia, as to who owned and/or was responsible for maintaining both the Lincoln Place fence and the Eastern Parkway fence and whether a failure to maintain the same proximately caused the infant plaintiffs injuries.

We disagree with the dissent’s conclusion that, as a matter of law, the alleged failure to maintain the Lincoln Place fence was not a proximate cause of the infant plaintiffs injuries. Proximate *978cause is generally a question to be decided by the finder of fact (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). In the instant case, the question of proximate cause cannot be resolved as a matter of law. Furthermore, the infant plaintiffs conduct was not so extraordinary or unforeseeable as to constitute a superseding event that severed the causal connection between the alleged negligence and the injuries (see Canela v Audobon Gardens Realty Corp., 304 AD2d 702, 703 [2003]), especially given the “known propensities of children to roam, climb, and play, often in ways that imperil their safety” (Sarbak v Sementilli, 51 AD3d 1001, 1002 [2008]).

Similarly, we are not persuaded by the dissent’s assertion that the appellants did not breach a duty to the plaintiffs with respect to the Eastern Parkway fence. A landowner or a party responsible for maintaining a fence in a reasonably safe condition may be liable to a plaintiff who is injured while attempting to climb the fence, where the evidence establishes that the fence was in “a dangerous and defective condition” and that such condition was a proximate cause of the plaintiff’s accident (Dinallo v Weiner, 12 AD2d 637, 638 [1960]).

The case relied upon by the dissent, Koppel v Hebrew Academy of Five Towns (191 AD2d 415 [1993]), is distinguishable. In Koppel, the infant plaintiff cut her hands while attempting to climb over the top of a fence with “razor sharp” ends, and there was no indication that the fence was improperly maintained. In contrast, herein, the infant plaintiff described the Eastern Parkway fence as having “holes in it” and “coming apart” from the poles.

Accordingly, the appellants were not entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Rivera, J.P, Eng and Chambers, JJ., concur.