Hedman v. City of Rochester

Order unanimously reversed, without costs, motion granted and complaint dismissed. Denman, J., not participating. Memorandum: The motion to dismiss the complaint for failure to state a cause of action under CPLR 3211 (subd [a], par 7) was entertained on affidavits and was properly treated by Special Term as one for summary judgment for dismissal of the complaint under CPLR 3211 (subd [c]). Plaintiff alleges that she was injured while playing tennis on a tennis court at Franklin High School in the City of Rochester, that the injury resulted from a ball bouncing off from trash on the court and striking plaintiff in the eye, and that the trash was there by reason of negligent maintenance of the tennis courts by defendant city. Plaintiff showed that the title to this Franklin High School property is in the city. In support of its motion to dismiss the complaint the city shows, *818and it is undisputed, that this property, as is all city school property, is under the exclusive control of the Rochester City School District which is a separate legal entity from the defendant city (Matter of Divisich v Marshall, 281 NY 170; Matter of Potter v Board of Educ., 43 AD2d 248; Santiago v Board of Educ., 41 AD2d 616). The city also alleges, without contradiction, that on September 10, 1973 when plaintiff was injured she was participating in a recreation program at Franklin High School on this tennis court under the supervision of an employee of the school district, and the city further alleges that it did not maintain or operate the tennis court at any time in 1973. Plaintiff has failed to meet her burden of proof showing facts which if established upon a trial, would form a basis for holding the city liable for her injuries (see Hoppers Co. v Empire Bituminous Prods., 35 AD2d 906, affd 30 NY2d 609; Hartwig v Three F. Conservation Soc., 49 AD2d 678). (Appeal from order of Monroe Supreme Court—dismiss complaint.) Present—Marsh, P. J., Moule, Hancock, Jr., Denman and Witmer, JJ.