Opinion
7150/05.
Decided April 18, 2008.
Upon the foregoing papers, defendant Good Shepard Services (GSS) moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs Alexa Luz Medina (infant plaintiff) and Alexa Santiago (collectively, plaintiffs) complaint against it. Defendants City of New York and the Department of Education of the City School District of the City of New York (collectively, the City) cross-move for summary judgment dismissing plaintiffs' complaint against them.
On September 24, 2004, infant plaintiff sustained various injuries when she fell from a set of monkey bars in the school yard of Public School 27 (P.S. 27) in Brooklyn, New York. At the time of the accident, infant plaintiff was hanging from the monkey bars and attempting to "do hand over hand" from one rung of the apparatus to the next. The accident occurred when an unidentified boy who was standing on an elevated platform adjoining the monkey bars, pushed infant plaintiff from behind and thereby caused her to lose her grip on the bars and fall to the ground. On the accident date, infant plaintiff was six years old and a first-grade student at P.S. 27. However, at the time of the accident, infant plaintiff was taking part in an after-hours program run by GSS, a community-based organization that runs after-school programs
Infant plaintiff's date of birth is July 11, 1998.
On December 9, 2004, plaintiffs served a written notice of claim upon the City. On February 15, 2005, infant plaintiff, who was six-years old at the time, gave unsworn testimony at a hearing held pursuant to General Municipal Law § 50-h regarding the circumstances of the accident. Specifically, infant plaintiff stated that she was pushed from behind while hanging on the monkey bars on P.S. 27's school yard by a boy whom she did not know, that there was an unidentified "teacher" standing near the monkey bars at the time, and that the incident happened "real quick." By summons and complaint dated March 8, 2005, plaintiff commenced the instant personal injury action against the City and GSS alleging that they were negligent in supervising the students in the school yard who were entrusted to their care.
On September 13, 2006, infant plaintiff, who was eight-years old at the time, appeared along with her attorney for an examination before trial (EBT). At the beginning of the EBT, infant plaintiff indicated that she knew the difference between telling the truth and telling a lie, knew that she could get in trouble for telling lies, and stated that she would tell the truth in response to the questions asked of her at the deposition. However, infant plaintiff's testimony at the EBT was unsworn, as no oath was administered prior questioning. During the course of the EBT, infant plaintiff again indicated that she fell from the monkey bars when a boy, whom she did not know, pushed her from behind. In addition, infant plaintiff stated that a teacher was watching her when she was on the monkey bars. Finally, infant plaintiff indicated that the boy did not say anything to her before he pushed her in the back and that she did not know why the boy pushed her.
At no point did the parties seek a determination by the court as to whether infant plaintiff could understand the oath and testify truthfully. Moreover, no explanation is provided as to why the oath was not administered to plaintiff prior to her EBT.
This teacher is identified in an incident report as Program Aide Krystal Booker.
GSS now moves for summary judgment dismissing plaintiffs' complaint against it. In so moving, GSS relies upon infant plaintiff's unsworn EBT testimony. Specifically, GSS notes that this testimony indicates that infant plaintiff's fall from the monkey bars was caused solely by the impulsive, unanticipated act of a fellow student that occurred in so short a span of time that even the most intense supervision would not have prevented the accident. GSS further notes that there is no evidence showing that the boy who pushed infant plaintiff had a history of altercations or prior disciplinary problems. Under the circumstances, GSS maintains that there is no basis for plaintiffs' claim against it since nothing it did, or failed to do, caused or otherwise could have prevented the accident.
GSS does not rely upon infant plaintiff's unsworn 50-h hearing testimony.
The City cross-moves for summary judgment dismissing the complaint against it. In so moving, the City maintains that it did not have custody of infant plaintiff or the boy who pushed her when the accident occurred. In support of this argument, the City relies upon the sworn EBT testimony of Sara Belcher-Barnes, the principal of P.S. 27. In particular, the City notes that Ms. Belcher-Barnes testified that GSS was solely responsible for the safety, security and custodial care of the students registered in its after-school program. In addition, the City adopts the argument raised by GSS in its summary judgment motion.
The City's notice of cross motion also purports to seek dismissal pursuant to CPLR 3211 (a)(7). However, the City's cross motion concerns facts and evidence, not the facial sufficiency of the allegations in plaintiffs' pleadings.
Plaintiffs have failed to submit any opposition to the City's cross motion for summary judgment. However, in opposition to GSS's summary judgment motion, plaintiffs argue that GSS has failed to submit any competent evidence regarding the manner in which the accident occurred. In particular, plaintiffs aver that infant plaintiff's unsworn EBT testimony is not in admissible form, and therefore, GSS has failed to meet its prima facie burden in seeking summary judgment.
Alternatively, plaintiffs argue that there are factual issues with regard to whether GSS's Program Aide had notice of the "dangerous situation" which led to the pushing incident, and failed to intervene in a timely manner. In support of this argument, plaintiffs submit a sworn affidavit by infant plaintiff dated November 12, 2007. In this affidavit, infant plaintiff avers that for five or ten minutes preceding the accident, there were four or five other children on the platform who "were pushing and shoving and yelling at each other and at me." Infant plaintiff further maintains that "[w]hile this was going on a lady who was a teacher or monitor was standing near the monkey bars, watching us. She was watching but did not say anything to me or to the children behind me."
Finally, plaintiffs submit an affidavit by Frances Wallach, an expert in the field of playground and recreational safety. In particular, Mr. Wallach avers that GSS was negligent in failing to adequately train infant plaintiff and her fellow students in the proper use of the monkey bars, in allowing overcrowding conditions on the playground apparatus, and in failing to have an adequate number of trained monitors in the school yard at the time the accident occurred.
In reply to plaintiffs' opposition papers, GSS maintains that, irrespective of the fact that infant plaintiff's EBT was not conducted under oath, the transcript of the EBT is admissible evidence under the admission exception to the hearsay rule. In particular, GSS notes that the EBT constitutes a statement by a party to this lawsuit. According to GSS, such admissions constitute competent evidence against the party "wherever, whenever, or to whomever made." Further, with respect to the EBT itself, GSS points out that plaintiffs' counsel agreed to the scheduling of the deposition, was present at the deposition and allowed the infant plaintiff to answer the questions presented, and at no point prior to the instant summary judgment motion raised any objection to the use of this EBT.
GSS also argues that the court should disregard infant plaintiff's affidavit inasmuch as it contradicts her prior EBT testimony. In this regard, GSS points out that at her EBT, infant plaintiff stated that she was the only person on the monkey bars at the time of the accident, that the boy did not say anything to her before pushing her, and that she did not know why the boy pushed her. Accordingly, GSS reasons that the claims in infant plaintiff's affidavit regarding the pushing and shoving on the apparatus that proceeded the accident are merely feigned issues raised in an attempt to avoid the consequence of her previous EBT testimony.
Finally, GSS maintain that the claims by plaintiffs' expert regarding inadequate training in the use of the monkey bars and inadequate supervision of the school yard are not relevant inasmuch as the accident was not proximately caused by these alleged failures.
It is well-settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v Prospect Hosp., 68 NY2d 320, 324). If the evidence submitted by the movant is not in admissible form, the motion must be denied regardless of the sufficiency of the opposing papers ( Martinez v 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901 ).
Turning first to GSS's motion for summary judgment, said motion relies almost entirely upon the unsworn EBT testimony of infant plaintiff. Consequently, the court must first determine whether this evidence is admissible, and therefore, capable of supporting a summary judgment motion. Generally speaking, an unsworn statement is not competent evidence, and therefore, is deemed insufficient to either demonstrate entitlement to summary judgment, or to raise a triable issue of fact in opposition to such a motion ( Municipal Testing Lab. Inc. v Brom , 38 AD3d 862 ). However, an exception to this rule exists when a party seeks to rely upon an unsworn statement of an opposing party since such statements are admissible under the admission exception to the hearsay rule ( Reed v McCord, 160 NY 330). Furthermore, the admissions exception has been applied to allow deposition testimony that would otherwise be inadmissible, to come into evidence, albeit as an admission rather than a "deposition" ( Morchik v Trinity School, 257 AD2d 534, 536; R.M. Newell Co., Inc., v Rice, 236 AD2d 843, 844 lv denied 90 NY2d 807; but see Martinez, 47 AD3d at 901).
The Criminal Procedure Law (CPL 60.20) allows for the introduction of unsworn testimony of child witnesses under certain circumstances. However, the CPLR contains no such provision.
Here, infant plaintiff's EBT is unsworn, and therefore, not admissible as deposition testimony. However, although the testimony qualifies as an admission, under the unique circumstances of this case, the Court finds that it is not sufficient in and of itself to support GSS's summary judgment motion. In this regard, no oath was administered to infant plaintiff prior to her EBT. While GSS argues that infant plaintiff's unsworn testimony was taken without the objection of plaintiff's counsel, this quasi waiver argument of the requirement to swear an oath has no basis in law. The question regarding reliability of testimony is present whether the evidence is sought to be introduced as deposition testimony or as an admission. If GSS (or any other party present at the EBT) disagreed with the decision not to administer the oath, the proper course of action would have been to seek a judicial determination regarding infant plaintiff's competency in this regard ( see Jenson v Shady Pines, Inc., 32 AD2d 648). However, as noted above, no such application was made to the court.
In any event, even if infant plaintiff's unsworn admissions were sufficient alone to support GSS's summary judgment motion, infant plaintiff's sworn affidavit in opposition to the motion raises triable issues of fact as to whether GSS was negligent in failing to intervene so as to prevent a dangerous condition that led directly to the accident. In particular, infant plaintiff states that, for five to ten minutes prior to the accident, approximately four or five children (including the boy who pushed her) were pushing and shoving each other on the platform behind abutting the monkey bars. Infant plaintiff further states that a monitor observed this behavior but failed to intervene. Finally, while GSS maintains that the court should disregard this affidavit inasmuch as it contradicts her prior deposition testimony, the cases that GSS relies upon in support of this argument are inapplicable. In this regard, it is true that, in the context of a summary judgment motion, a party may not seek to avoid the consequences of his or her prior sworn deposition testimony by submitting an affidavit that contradicts said testimony ( Karwowski v New York City Trans. Auth. , 44 AD3d 826 , 827; Nieves v JHH Transport, LLC. , 40 AD3d 1060 ). However, here infant plaintiff's deposition testimony was unsworn and GSS argues that the court should consider this evidence under the admission exception to the hearsay rule. There is no authority which precludes a party from submitting an affidavit that contradicts a prior unsworn admission.
Accordingly, because GSS's motion relies upon infant plaintiff's unsworn EBT testimony in support of its argument that the accident was solely caused by the sudden and unanticipated act of a fellow student, and such unsworn testimony is insufficient to support its summary judgment motion, GSS's motion for summary judgment must be denied.
Turning to the City's cross motion for summary judgment, said motion is based (in part) upon the argument that the City did not have physical custody of infant plaintiff or the boy who pushed her at the time the accident occurred. Furthermore, this argument is supported by admissible evidence in the form of Ms. Belcher-Barnes' sworn deposition testimony, which indicates that neither infant plaintiff nor the boy who pushed her were within the physical custody and control of the City at the time of the accident. In addition, plaintiffs have failed to submit any opposition to the City's cross motion.
A school's duty to adequately supervise a student is coextensive with its physical custody of and control over the student ( Fotiadis v City of New York, ___ AD3d ___, 2008 NY Slip Op 01915 [2nd Dept 2008]; Stagg v City of New York , 39 AD3d 533 , 534). Here, it is undisputed that at the time the accident occurred, physical custody of both infant plaintiff and the boy who pushed her had passed from the City to GSS. Accordingly, there is no basis for plaintiffs' claims against the City.
In summary, GSS's motion for summary judgment dismissing plaintiffs' complaint against it is denied. The City's cross motion for summary judgment dismissing plaintiffs' complaint against it granted.
This constitutes the decision and order of the court.