Opinion
No. 2022-09306 Index No. 716802/20
08-21-2024
Quiana Gayle, etc., appellant, v. City of New York, et al., respondents.
Rosenbaum & Rosenbaum, P.C., New York, NY (Edwin S. Kim of counsel), for appellant. Muriel Goode-Trufant, Acting Corporation Counsel, New York, NY (Deborah A. Brenner and Janet L. Zaleon of counsel), for respondents.
Rosenbaum & Rosenbaum, P.C., New York, NY (Edwin S. Kim of counsel), for appellant.
Muriel Goode-Trufant, Acting Corporation Counsel, New York, NY (Deborah A. Brenner and Janet L. Zaleon of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER HELEN VOUTSINAS JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered October 21, 2022. The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant New York City Department of Education.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action on behalf of her infant son, A.M., to recover damages for personal injuries A.M. allegedly sustained when he slipped and fell on ice at his school. The plaintiff alleged, inter alia, that the defendants, New York City Department of Education (hereinafter DOE) and City of New York, were negligent in their maintenance of the school premises and negligently supervised A.M. The defendants moved for summary judgment dismissing the complaint. In an order entered October 21, 2022, the Supreme Court granted the motion. The plaintiff appeals from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against DOE.
In moving for summary judgment in an action predicated upon the presence of snow or ice, the defendants had the burden of establishing, prima facie, that DOE neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition (see Islam v City of New York, 218 A.D.3d 449, 450; Miller v Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc., 197 A.D.3d 643, 644). "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Miller v Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc., 197 A.D.3d at 644; see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837; Breland-Marrow v RXR Realty, LLC, 208 A.D.3d 627, 628). To demonstrate that it did not have constructive notice of a defective condition on its premises, a defendant must establish "when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Breland- Marrow v RXR Realty, LLC, 208 A.D.3d at 628; see Rothman v Fairfield Mastic, LLC, 226 A.D.3d 934).
Here, the defendants established, prima facie, that DOE neither created the alleged icy condition nor had actual or constructive notice of the condition (see Rothman v Fairfield Mastic, LLC, 226 A.D.3d at 935; Breland-Marrow v RXR Realty, LLC, 208 A.D.3d at 629-630; Zimmer v County of Suffolk, 190 A.D.3d 898, 899). The defendants showed that the school had a weather protocol for salting and shoveling the premises, that neither DOE nor the school had received any complaints about the alleged icy condition, that the school maintained a log that indicated when the area was last inspected, and that there was no indication that ice was present when the area was last inspected (see Rothman v Fairfield Mastic, LLC, 226 A.D.3d at 935; Breland-Marrow v RXR Realty, LLC, 208 A.D.3d at 629; Zimmer v County of Suffolk, 190 A.D.3d at 899). In opposition, the plaintiff failed to raise a triable issue of fact.
The defendants also demonstrated, prima facie, that the level of supervision provided to A.M. was adequate (see D.M. v Yonkers City Sch. Dist., 220 A.D.3d 672, 673; R.B. v Sewanhaka Cent. High Sch. Dist., 207 A.D.3d 607, 609-610). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against DOE.
BRATHWAITE NELSON, J.P., MILLER, VOUTSINAS and TAYLOR, JJ., concur.