Diven v. Vill. of Hastings-On-Hudson, 156 A.D.2d 538 (N.Y. App. Div. 1989). · Go Syfert
Diven v. Vill. of Hastings-On-Hudson, 156 A.D.2d 538 (N.Y. App. Div. 1989). Cases Citing This Book View Copy Cite
“in the instant case, the infant plaintiff's own deposition testimony establishes conclusively that any danger represented by the cliff in question was open and obvious, rather than latent.”
47 citation events (24 in the last 25 years) across 5 distinct courts.
Strongest positive: Sugely Flores, proposed administratrix of the Estate of the Infant, M.F., deceased, Sugely Flores Individually, Yvelise Beltre, proposed administratrix of the Estate of the Infant, I.M., deceased, Oscar Moronta and Yvelise Beltre individually v. The City of New York and National Railroad Passenger Corporation d/b/a Amtrak (nysd, 2025-09-03)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Sugely Flores, proposed administratrix of the Estate of the Infant, M.F., deceased, Sugely Flores Individually, Yvelise Beltre, proposed administratrix of the Estate of the Infant, I.M., deceased, Oscar Moronta and Yvelise Beltre individually v. The City of New York and National Railroad Passenger Corporation d/b/a Amtrak
S.D.N.Y. · 2025 · signal: see · quote attribution · 1 verbatim quote · confidence high
in the instant case, the infant plaintiff's own deposition testimony establishes conclusively that any danger represented by the cliff in question was open and obvious, rather than latent.
discussed Cited as authority (rule) Barone v. Risi
N.Y. App. Div. · 2015 · confidence medium
“Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain” (Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]; see Morell v Peekskill Ranch, 64 NY2d 859 [1985]; Le Roux v State of New York, 307 NY 397 [1954]).
discussed Cited as authority (rule) Charles v. Village of Mohawk
N.Y. App. Div. · 2015 · confidence medium
“What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact” (Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]).
discussed Cited as authority (rule) Charles v. Village of Mohawk
N.Y. App. Div. · 2015 · confidence medium
“What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact” (Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]).
discussed Cited as authority (rule) King v. Cornell University
N.Y. Sup. Ct. · 2013 · confidence medium
The duty to warn, however, does not extend to ‘open and obvious’ dangers — particularly those encompassing ‘natural geographic phenomena which “can readily be observed by those employing the reasonable use of their senses” ’ (Cohen v State of New York, 50 AD3d at 1235 , quoting Tarricone v State of New York, 175 AD2d 308, 309 [1991], lv denied 78 NY2d 862 [1991]; see MacDonald v City of Schenectady, 308 AD2d 125, 128 [2003]; Casela v City of Troy, 161 AD2d 991, 991 [1990]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]; see also Melendez v City of New York, 76 AD…
discussed Cited as authority (rule) Arsenault v. State
N.Y. App. Div. · 2012 · confidence medium
The duty to warn, however, does not extend to “open and obvious” dangers — particularly those encompassing “natural geographic phenomena which ‘can readily be observed by those employing the reasonable use of their senses’ ” (Cohen v State of New York, 50 AD3d at 1235 , quoting Tarricone v State of New York, 175 AD2d 308, 309 [1991], lv denied 78 NY2d 862 [1991]; see MacDonald v City of Schenectady, 308 AD2d 125, 128 [2003]; Casela v City of Troy, 161 AD2d 991, 991 [1990]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]; see also Melendez v City of New York, 76 AD…
discussed Cited as authority (rule) Arsenault v. State
N.Y. App. Div. · 2012 · confidence medium
The duty to warn, however, does not extend to “open and obvious” dangers — particularly those encompassing “natural geographic phenomena which ‘can readily be observed by those employing the reasonable use of their senses’ ” (Cohen v State of New York, 50 AD3d at 1235 , quoting Tarricone v State of New York, 175 AD2d 308, 309 [1991], lv denied 78 NY2d 862 [1991]; see MacDonald v City of Schenectady, 308 AD2d 125, 128 [2003]; Casela v City of Troy, 161 AD2d 991, 991 [1990]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]; see also Melendez v City of New York, 76 AD…
discussed Cited as authority (rule) Knapp v. Golub Corp.
N.Y. App. Div. · 2010 · confidence medium
Likewise, “ ‘[w]hat accidents are reasonably foreseeable, and what preventive measure should reasonably be taken, are ordinarily questions of fact’ ” (Perrelli v Orlow, 273 AD2d at 534 , quoting Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]).
cited Cited as authority (rule) Pomianowski v. City of New York
N.Y. App. Div. · 2009 · confidence medium
Auth., 203 AD2d 19, 20 [1994]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]; Tarricone v State of New York, 175 AD2d 308, 310 [1991]).
discussed Cited as authority (rule) Sarbak v. Sementilli
N.Y. App. Div. · 2008 · confidence medium
This duty includes consideration of the known propensities of children to roam, climb, and play, often in ways that imperil their safety (see Collentine v City of New York, 279 NY 119, 125 [1938]; Morr v County of Nassau, 22 AD3d 728, 728-729 [2005]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]).
discussed Cited as authority (rule) Cohen v. State
N.Y. App. Div. · 2008 · confidence medium
However, the duty to take reasonable precautions does not extend to open and obvious conditions that are natural geographic phenomena which “can readily be observed by those employing the reasonable use of their senses” (Tarricone v State of New York, 175 AD2d 308, 309 [1991], lv denied 78 NY2d 862 [1991]; see Cramer v County of Erie, 23 AD3d 1145, 1146 [2005]; Rosen v New York Zoological Socy., 281 AD2d 238, 238-239 [2001]; Duelos v County of Monroe, 258 AD2d 925, 926 [1999]; Tushaj v City of New York, 258 AD2d 283, 284 [1999], lv denied 93 NY2d 818 [1999]; Coote v Niagara Mohawk Power Co…
discussed Cited as authority (rule) Comack v. VBK Realty Associates, Ltd.
N.Y. App. Div. · 2008 · confidence medium
The defendants VBK Realty Associates, Ltd., Fred Von Bargen, and “Mary” Kelly established their prima facie entitlement to summary judgment by demonstrating that the speed bump and the garden hose did not constitute dangerous or defective conditions (see Conroy v Mormon Enters., 253 AD2d 839 [1998]; Piloto v Diamond, 209 AD2d 393 [1994]), and that they had no duty to erect a fence or barrier at the edge of the cliff (see Cramer v County of Erie, 23 AD3d 1145 [2005]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]; cf. Tulovic v Chase Manhattan Bank, 309 AD2d 923 [2003]).
cited Cited as authority (rule) Hinchey v. White Willow, LLC
N.Y. App. Div. · 2007 · confidence medium
Auth., 236 AD2d 209, 210 [1997]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]; Barnaby v Rice, 75 AD2d 179, 182 [1980], affd 53 NY2d 720 [1981]).
discussed Cited as authority (rule) Barry v. Gorecki
N.Y. App. Div. · 2007 · confidence medium
Although the Goreckis failed to establish as a matter of law that the cliff was a readily observable geographic feature (cf. Tushaj v City of New York, 258 AD2d 283, 283-284 [1999], lv denied 93 NY2d 818 [1999]; see generally Coote v Niagara Mohawk Power Corp., 234 AD2d 907, 908 [1996]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]), we conclude as a matter of law that Hill’s “presence [on the property] at the particular time and place of the injury” was not reasonably foreseeable to the Goreckis, and thus, that they owed no legal duty to Hill (Basso v Miller, 40 NY2d 2…
discussed Cited as authority (rule) Amato v. Commack Union Free School District
N.Y. App. Div. · 2006 · signal: cf. · confidence medium
Furthermore, the plaintiffs’ submissions were sufficient to demonstrate that they have a potentially meritorious cause of action against the appellant (see Holtslander v Whalen & Sons, 70 NY2d 962 [1988], modfg on concurring and dissenting op of Levine, J., 126 AD2d 917, 919-920 [1987]; Greene v Toys “R” Us, 292 AD2d 568 [2002]; cf. Liven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]).
discussed Cited as authority (rule) Wedlock v. Troncoso
N.Y. Sup. Ct. · 2000 · confidence medium
Consequently, the plaintiffs have not established that any violation of a statute or code proximately caused the injuries pursuant to General Municipal Law § 205-e. The Appellate Division, Second Department, asserted in Diven v Village of Hastings-On-Hudson ( 156 AD2d 538, 539 [2d Dept 1989]), “[w]hat accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact.” While the plaintiff police officer did not establish a claim under General Municipal Law § 205-e, he still had a common-law negligence claim to pursue.
discussed Cited "see, e.g." Macias v. Summit Management
Md. Ct. Spec. App. · 2019 · signal: see also · confidence medium
See also Diven by Diven v. Vill. of Hastings-on-Hudson, 156 A.D.2d 538, 539 (N.Y.
discussed Cited "see, e.g." Walter v. State (2×)
nyclaimsct · 1991 · signal: see also · confidence low
(Boltax v Joy Day Camp, 113 AD2d 859 , affd 67 NY2d 617 ; see also, Restatement [Second] of Torts § 343.) Thus, a landowner must adequately warn against a danger if someone "would not discover or realize the peril and guard against it” (Goslin v La Mora, 137 AD2d 941, 942 ) and must take steps to "prevent those accidents which might foreseeably occur as the result of dangerous terrain” (Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 ).
Retrieving the full opinion text from the archive…
Daniel S. Diven, an Infant, by His Father, Harry S. Diven
v.
Village of Hastings-On-Hudson, and Stefan Chomyck
Appellate Division of the Supreme Court of the State of New York.
Dec 18, 1989.
156 A.D.2d 538
Cited by 41 opinions  |  Published

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered January 7, 1988, which granted the motion of the respondents for summary judgment dismissing the complaint as against them.

Ordered that the order is modified, on the law, upon searching the record, by adding thereto a provision dismissing all cross claims asserted against the respondents; as so modified, the order is affirmed, without costs or disbursements.

The infant plaintiff was seriously injured when he fell from a cliff located somewhere (the precise location is not clear) in the vicinity of the boundary between the property of the respondents and the property of the codefendant, the Village of Hastings-On-Hudson (hereinafter the Village). The plaintiffs seek to impose liability on the respondents on the theory that they were negligent in failing to erect a fence so as to prevent children from coming from the Village’s property (which was operated as a park) onto their property, and that such negligence caused the injuries suffered by the infant plaintiff. The Supreme Court granted summary judgment in favor of the respondents, and dismissed the complaint as to them.

In this case, the infant plaintiff had decided, along with a group of his friends, to climb to the top of the cliff. His friends arrived at the top of the cliff, as had the infant plaintiff himself on several prior occasions, by way of a dirt path. The infant plaintiff, taking a different route, scaled the face of the cliff itself. After spending several minutes on the top of the cliff, the infant plaintiff attempted to descend, again by climbing down the face of the cliff. According to the infant plaintiff, "I was climbing down the cliff and I just slipped”.

[*539] In general, landowners have a duty to prevent the occurrence of foreseeable injuries (see generally, Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433). It is considered foreseeable that children will enter upon premises and "climb about and play” (Collentine v City of New York, 279 NY 119, 125), often in ways that imperil their safety (see, e.g., Holtslander v Whalen & Sons, 126 AD2d 917, 919-920, mod on opn of Levine, J., at App Div, 70 NY2d 962; see also, Cruz v New York City Tr. Auth., 136 AD2d 196). What accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Bahan v Green Bus Lines, 96 AD2d 876, affd 61 NY2d 922). Liability may be imposed upon a landowner who fails to take reasonable precautions in order to prevent those accidents which might foreseeably occur as the result of dangerous terrain (see, e.g., Morell v Peekskill Ranch, 104 AD2d 492, 493-495 [dissenting opn], revd 64 NY2d 859, on dissent of Rubin, J.; Malvaso v State of New York, 15 Misc 2d 585, affd 10 AD2d 663; see also, Burkart v State of New York, 28 AD2d 1167; Harran v State of New York, 9 AD2d 31).

However, a landowner has no duty to erect barriers or fences in order to enclose natural geographical phenomena which do not in some way represent latent dangers or conditions, so as to prevent persons coming upon the land from injuring themselves by entering onto the condition in question (see, Barnaby v Rice, 75 AD2d 179, affd 53 NY2d 720, on opn at App Div; see also, Annotation, Duty of landowner to erect fence, or other device to deter trespassing children from entering third person’s property on which dangerous condition exists, 39 ALR2d 1452; 4B Warren, New York Negligence, Fences, § 1.01; cf, Scurti v City of New York, 40 NY2d 433, supra). In the instant case, the infant plaintiff’s own deposition testimony establishes conclusively that any danger represented by the cliff in question was open and obvious, rather than latent. The cliff at issue is no different in legal consequences from the river in the Barnaby v Rice case (supra), and no tort liability flows from the landowner’s failure to enclose the cliff in question.

Accordingly, we affirm the grant of summary judgment dismissing the complaint as against the respondents. The order under review should, however, be modified (see, CPLR 3212 [b]) so as to dismiss not only the complaint as asserted against the respondents, but the cross claims of the Village as[*540] well. Because the respondents cannot be held liable to the plaintiffs on any theory, they cannot be liable to the Village on the basis of contribution (see, CPLR 1401; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603; Schauer v Joyce, 54 NY2d 1, 5). Bracken, J. P., Kunzeman, Kooper and Balletta, JJ., concur.