Opinion
021642/09.
November 15, 2011.
Mintz Shaffer, Esqs., Freeport, NY, Attorney for Plaintiff.
Congdon Flaherty O'Callaghan Reid, Donlong Travis Fishlinger, Uniondale, NY, Attorney for Defendants.
The following papers were read on this motion:
Papers Numbered Notice of Motion, Cross Motion........................................... 1 Answering Affidavits..................................................... 2 Reply Affidavits......................................................... 3,4 Memorandum of Law........................................................ 5Defendant Freeport Union Free School District sued herein as the Freeport School District and Bayview Avenue School moves pursuant to CPLR Section 3212 for summary judgment dismissing the plaintiff's complaint for personal injuries.
This personal injury action arises out of an accident that occurred on May 6, 2009 at the Bayview Avenue School. On that date, during the recess period, infant plaintiff Larry Aviles, a second grader, was playing tag on the playground with his classmates. In support of this application, defendant attaches deposition testimony of the infant plaintiff from his 50(h) hearing as well as part of infant plaintiff's examination before trial. Also attached is the examination before trial of Sonia Aviles, the infant plaintiff's mother and the examination before trial of Jesse Taylor, the head custodian for the Bayview Avenue School.
Infant plaintiff testified that he tripped on the top of his Nike shoe while playing tag with his friends on the blacktop in the play ground area of the Bayview Avenue School. Immediately before the plaintiff fell, he testified that his classmate "Amani" accidentally bumped into him and, "My tummy went in the hole . . ." The infant testified that his foot was not "stuck" on anything that caused him to fall. Infant plaintiff knew that his father took pictures of the blacktop, however, he did not show his father the area where he allegedly fell, nor did he know why his father took pictures of a particular hole.
Infant plaintiff again testified at his deposition approximately ten months after the 50(h) hearing. When questioned at that time, he testified that he had no recollection about what happened on the date of the accident.
Plaintiffs mother, Sonia Aviles, testified that her son told her that he fell when he put his foot in a little hole.
Jesse Taylor, the head custodian for the school, testified at his deposition that he is responsible for the maintenance of the play ground area. Every day he inspects the black top area prior to the start of school. Mr. Taylor files a work order with the Director of Facilities for the school district if a defect is found. If a hole is found, a cone is placed on top of the hole. The ground crew is then assigned to make repairs. The testimony reveals that on March 23, 2009 a work order was put in for five holes on the blacktop. That work was completed two days later. Mr. Taylor testified that these repairs were not in the same area shown in the photograph that was marked for identification. Another work order was put in on September 26, 2008. That work was completed on September 29, 2008.
Defendant also attaches a stipulation of discontinuance signed by both counsel on June 15, 2011.
The only opposition to this motion is an affirmation from plaintiff's counsel.
Summary judgment is the procedural equivalent of a trial. S.J. Capelin Assoc. Inc. v Globe Mfg. Corp., 34 NY2d 338, 341 (1974). The function of the court in deciding a motion for summary judgment is to determine if triable issues of face exist. Matter of Suffolk Cty Dept of Social Services v James M., 83 NY2d 178, 182 (1994). The proponent must make a prima facie showing of entitlement to judgment as a matter of law. Guiffrida v Citibank Corp., 100 NY2d 72, 82 (2003); Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). Once a prima facie case has been made, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or an acceptable excuse for its failure to do so. It is insufficient for a party opposing a motion of summary judgment to use "mere conclusions, expressions of hope or unsubstantiated allegations or assertions." Zuckerman v City of New York, 49 NY2d 557, 562 (1980).
A motion for summary judgment is granted in favor of the moving party where there are no material issues of fact, and as a result, the moving party is entitled to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, (1986). The burden then placed upon the party opposing the motion requires that they produce "evidentiary proof in admissible form" sufficient to impose a trial as to the material issues of fact upon which the opposing claim depends. Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, (1988). Rebecchi v. Whitmore, 172 A.D.2d 600, (2nd Dept. 1991)
The plaintiff in this case testified that he tripped on the top of his Nike shoes when he was bumped by his classmate while playing tag. Further, he testified that his foot did not get caught in any defect. The evidence demonstrates that the accident was not caused by a defect but rather by a collision between two children playing tag on the playground.
In a trip-and-fall case, a plaintiff's inability to identify that the cause of the fall was the result of defendant's negligence is fatal to the plaintiffs cause of action since finding that the defendant's negligence proximately caused the plaintiff's injuries would be based on speculation ( Louman v. Town of Greenburgh, 60 A.D.3d 915, 916; Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435; Oettinger v. Amerada Hess Corp., 15 A.D.3d 638, 639; Hartman v Mtn. Val. Brew Pub, 301 AD2d 570). Here, the defendant established its prima facie entitlement to summary judgment by demonstrating that the plaintiff conceded in his deposition that his accident was not caused by a defect. Infant plaintiff's mother's deposition statement that her son put his foot in a little hole, without more, is insufficient to raise any issue of fact. Plaintiff's mother was not present when the accident occurred. Not only is the statement self-serving hearsay, she fails to identify the location of any defect with specificity. The credible testimony simply fails to identify that a defect was the cause of the fall ( see Scott v. Rochdale Vil., Inc., 65 A.D.3d 621; Costantino v. Webel, 57 A.D.3d 472; Slattery v. O'Shea, 46 A.D.3d 669, 670; Bottiglieri v. Wheeler, 38 A.D.3d 818). Given the testimony before this court, it would simply be speculation that any defect caused the plaintiff to fall ( see Slattery v. O'Shea, 46 A.D.3d 669 at 670). The evidence adduced here does not even establish a possibility that the plaintiff's fall was caused by a defect ( see Silva v. Village Sq. of Penna, 251 A.D.2d 944, 945; Dapp v. Larson, 240 A.D.2d 918, 919). The trier of fact would be required to base a finding of proximate cause upon nothing more than speculation ( see Hartman v. Mtn. Val. Brew Pub, 301 A.D.2d 570; Christopher v. New York City Tr. Auth., 300 A.D.2d 336; Brown-Phifer v. Cross County Mall Multiplex, 282 A.D.2d 564; Novoni v. La Parma Corp., 278 A.D.2d 393; Visconti v. 110 Huntington Assoc., 272 A.D.2d 320, 321; Penovich v. Schoeck, 252 A.D.2d 799, 800; Silva v. Village Sq. of Penna, supra; Dapp v Larson, supra). Thus, the plaintiff's own deposition testimony is fatal to his complaint ( see CPLR 3212[b]); Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Curran v Esposito, 308 A.D.2d 428; Sanchez v. City of New York, 305 A.D.2d 487; Christopher v New York City Tr. Auth., supra; Bongiorno v. Penske Auto. Ctr., 289 A.D.2d 520, 521; Brown-Phifer v Cross County Mall Multiplex, supra; Barretta v. Trump Plaza Hotel Casino, 278 A.D.2d 262, 263; Wright v South Nassau Communities Hosp., supra; Amadio v. Pathmark Stores, 253 A.D.2d 834; Dapp v. Larson, supra).
In opposition, the plaintiff failed to raise a triable issue of fact ( see Hartman v. Mtn. Val. Brew Pub, supra). It is well settled that "where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action . . ., and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595; McHugh v Marfoglia, 65 AD3d 828).
The court notes that the filing of a stipulation of discontinuance when a party is an infant is ineffective (CPLR 3217 [a][2]). An application must be made to the court for permission to discontinue such an action (CPLR 3217 Practice Commentary p. 352)
Therefore, defendant's motion for summary judgment, dismissing the complaint is GRANTED.