Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Appellant.

Goldberg Segalla LLP, Buffalo (Kathleen J. Martin Of Counsel), for Defendants–Respondents.

PRESENT: SMITH, J.P., CARNI, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM:

In this negligence action arising from an incident in which plaintiff's son suffered a near-drowning in a hotel pool, plaintiff appeals from an order granting defendants' motion for summary judgment dismissing the complaint. We affirm.

The complaint, as amplified by the bill of particulars, alleges that defendants were negligent in, inter alia, failing to provide lifeguards or otherwise adequately supervise bathers using the hotel pool, allowing the pool to be overcrowded, and allowing a dangerous condition to exist on the premises, i.e., in allowing a group of children to play games in and around the pool. We note at the outset that plaintiff on appeal has abandoned any challenge to the dismissal of her claim that defendants were negligent in allowing an excessive number of bathers in the pool (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 ).

Defendants met their initial burden with respect to the lifeguard and bather supervision claims by submitting the relevant section of the New York State Sanitary Code (Sanitary Code), which provides that, "[w]hen a swimming pool ... is part of a temporary residence or a campground, as defined in Part 7 of this Title, the operator must provide either Supervision Level IIa, IIb, III, or IV aquatic supervision. When Supervision Level III or IV is selected, on-premise CPR certified staff is not required" (10 NYCRR 6–1.23 [1][i] ). Hotels are temporary residences within the meaning of the regulation (see 10 NYCRR 7–1.1 [j] ), and the parties correctly agree that the term "on-premise CPR certified staff" is synonymous with lifeguards (see 10 NYCRR 6–1.31 ). Defendants also submitted a report from the Erie County Department of Health, indicating that the "Hotel Pool employs Supervision Level IV" and that defendants met all the requirements for the use of that level of supervision. On appeal, plaintiff does not challenge the finding that the pool at issue was properly designated Supervision Level IV under the regulation. Consequently, Supreme Court properly granted the motion insofar as defendants sought summary judgment dismissing the claims arising from failure to provide lifeguards and poolside supervision inasmuch as the Sanitary Code provides that defendants had no duty to provide that level of supervision. Indeed, "[i]t is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff" (Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019, rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640 ; see e.g. Olson v. Brunner, 261 A.D.2d 922, 923, 689 N.Y.S.2d 833, lv. denied 94 N.Y.2d 759, 705 N.Y.S.2d 6, 726 N.E.2d 483 ; cf. Villar v. Howard, 126 A.D.3d 1297, 1299, 6 N.Y.S.3d 811, affd. 28 N.Y.3d 74, 41 N.Y.S.3d 460, 64 N.E.3d 280 ).

We further conclude that the court properly granted defendants' motion with respect to the remaining claims, in which plaintiff alleges that defendants were negligent in permitting a dangerous condition to exist on the premises, i.e., a group of children running and jumping in the pool area. "It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition ... It is also clear that this duty may extend to controlling the conduct of third persons who frequent or use the property, at least under some circumstances" (Di Ponzio v. Riordan, 89 N.Y.2d 578, 582–583, 657 N.Y.S.2d 377, 679 N.E.2d 616 ). Specifically, "[l]andowners ‘have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control’ " (O'Callaghan v. Jones, 283 A.D.2d 949, 949, 725 N.Y.S.2d 252, quoting D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 ). Here, even assuming, arguendo, that there is an issue of fact whether the injuries sustained by plaintiff's son were proximately caused by that dangerous condition, i.e., when one of the other children bumped into him and knocked him under the water, rather than by him taking in too much water, getting cramps, or simply being unable to swim well enough to stay afloat, we conclude that "defendants met their initial burden by establishing that they were not aware of the need to exercise control over [the children,] and that they did not have the opportunity to do so" (Brown v. Roblee, 57 A.D.3d 1494, 1495, 871 N.Y.S.2d 516 ; see D'Amico, 71 N.Y.2d at 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 ; cf. Lasek v. Miller, 306 A.D.2d 835, 836, 762 N.Y.S.2d 204 ). Plaintiff failed to raise a triable issue of fact in opposition (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

The parties' contentions regarding assumption of the risk are moot in light of our determination.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.