Opinion
01-18-2017
Ramkhelawan SEETARAM, etc., appellant, v. STATE of New York, respondent.
Bruce A. Young, New York, NY, for appellant. Eric T. Schneiderman, Attorney General, New York, NY (Anisha S. Dasgupta and Eric Del Pozo of counsel), for respondent.
Bruce A. Young, New York, NY, for appellant.
Eric T. Schneiderman, Attorney General, New York, NY (Anisha S. Dasgupta and Eric Del Pozo of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In a claim to recover damages for wrongful death, the claimant appeals from an order of the Court of Claims (Lopez– Summa, J.), dated June 30, 2014, which granted the defendant's motion for summary judgment dismissing the claim.
ORDERED that the order is affirmed, with costs.
On August 3, 2009, the decedent, Narie Nicholas Balkaran, drowned while swimming at Jones Beach State Park after a rip current pulled him away from the shore. In a claim dated May 23, 2011, Ramkhelawan Seetaram, the decedent's grandfather and the administrator of his estate (hereinafter the claimant), alleged, inter alia, that the defendant was negligent in failing to warn about the presence of rip currents and failing to close the beach. The defendant moved for summary judgment dismissing the claim, arguing that it had no duty to warn, that it satisfied its general duty to provide adequate supervision of the beach, and that the decedent assumed the risk inherent in swimming in the ocean. The Court of Claims granted the defendant's motion. The claimant appeals. We affirm.
As a preliminary matter, contrary to the claimant's contention, the Noseworthy doctrine (see Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 ) does not apply in this case, since the defendant's knowledge as to the cause of the decedent's accident is no greater than that of the claimant (see Weinstein v. Nicolosi, 117 A.D.3d 1036, 1037, 986 N.Y.S.2d 527 ; Hod v. Orchard Fields, LLC, 111 A.D.3d 794, 794–795, 975 N.Y.S.2d 162 ).
Turning to the merits, "the State ‘must act as a reasonable [person] in maintaining [its] property,’ " such as a park, " ‘in a reasonably safe condition’ " (Preston v. State of New York, 59 N.Y.2d 997, 998, 466 N.Y.S.2d 952, 453 N.E.2d 1241, quoting Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [internal quotation marks omitted]; see Caldwell v. Village of Is. Park, 304 N.Y. 268, 273, 107 N.E.2d 441 ). "The duty goes beyond the mere maintenance of the physical condition of the park" (Caldwell v. Village of Is. Park, 304 N.Y. at 273, 107 N.E.2d 441 ), as there is a "recognized duty of general supervision" (Heard v. City of New York, 82 N.Y.2d 66, 71, 603 N.Y.S.2d 414, 623 N.E.2d 541 ). The degree of general supervision must be "adequate" (Johnson v. City of New York, 121 A.D.3d 947, 947, 995 N.Y.S.2d 133 [internal quotation marks omitted]; see Caldwell v. Village of Is. Park, 304 N.Y. at 273–274, 107 N.E.2d 441 ). Here, in support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure (see Johnson v. City of New York, 121 A.D.3d at 947–948, 995 N.Y.S.2d 133 ). In opposition, the claimant failed to raise a triable issue of fact (see id. ; Bumpher v. County of Westchester, 300 A.D.2d 525, 526, 752 N.Y.S.2d 559 ).
Furthermore, the defendant has no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor (see Herman v. State of New York, 63 N.Y.2d 822, 823, 482 N.Y.S.2d 248, 472 N.E.2d 24 ; Saland v. Village of Southampton, 242 A.D.2d 568, 568, 662 N.Y.S.2d 322 ; Smyth v. County of Suffolk, 172 A.D.2d 741, 742, 569 N.Y.S.2d 128 ; Perez v. Town of E. Hampton, 166 A.D.2d 640, 640, 561 N.Y.S.2d 69 ), including rip currents (see Graham v. County of Suffolk, 34 A.D.3d 527, 528, 824 N.Y.S.2d 162 ; cf. DeWick v. Village of Penn Yan, 275 A.D.2d 1011, 1012, 713 N.Y.S.2d 592 ). The Court of Claims therefore properly concluded, as a matter of law, that the claimant could not recover for the defendant's allegedly negligent failure to warn (see Herman v. State of New York, 63 N.Y.2d at 823, 482 N.Y.S.2d 248, 472 N.E.2d 24 ).
The parties' remaining contentions either need not be reached in light of our determination or are without merit.