Opinion
2012-01-31
Georgina CRAWFORD, etc., appellant, v. SMITHTOWN CENTRAL SCHOOL DISTRICT, respondent, et al., defendant.
Salenger Sack Kimmel & Bavaro, LLP, New York, N.Y. (Michael F. Schwartz of counsel), for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for respondent and defendant Accompsett Elementary School.
Salenger Sack Kimmel & Bavaro, LLP, New York, N.Y. (Michael F. Schwartz of counsel), for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for respondent and defendant Accompsett Elementary School.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated November 29, 2010, which granted the motion of the defendant Smithtown Central School District for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs to the respondent.
The plaintiff's infant daughter allegedly sustained personal injuries when she tripped and fell over a rock or a piece of asphalt in the schoolyard of her elementary school during her lunch recess. The defendant Smithtown Central School District (hereinafter the defendant) established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of the alleged condition which proximately caused the accident ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774). In opposition, the plaintiff failed to raise a triable issue of fact. The Supreme Court properly declined to consider the plaintiff's new theory of liability raised for the first time in opposition to the motion in light of the plaintiff's protracted delay in presenting it ( see Horn v. Hires, 84 A.D.3d 1025, 924 N.Y.S.2d 411; Medina v. Sears, Roebuck & Co., 41 A.D.3d 798, 839 N.Y.S.2d 162).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.