
    Anthony Leone, an Infant, by Rosemary Leone, His Mother, et al., Respondents, v City of Utica, Appellant.
    Argued February 6, 1980;
    decided March 18, 1980
    
      APPEARANCES OF COUNSEL
    
      Lawrence P. George, Corporation Counsel (Bernard Samuels and Eric M. Alderman of counsel), for appellant.
    
      Earle C. Bastow, Waddie N. Kalil and John E. Hunt for respondents.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed with costs, for those reasons relating to duty and proximate cause stated in the opinion of Presiding Justice Michael F. Dillon at the Appellate Division (66 AD2d 463). We note, in addition that the trial court did not abuse its discretion in denying appellant’s belated application for permission to assert a cross claim.

Jasen, J.

(concurring). While I vote for affirmance, I do so solely on constraint of this court’s prior decision in Scurti v City of New York (40 NY2d 433). In my opinion, it is both unreasonable and improvident to hold a landowner liable for personal injuries sustained on adjoining property which he does not own, where, as here, the precautions which the landowner would be required to undertake to prevent such injury would be unduly burdensome.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Jasen concurs in a separate memorandum.

Order affirmed, with costs, in a memorandum.  