Opinion
2019-00519 Index No. 3326/16
12-11-2019
G.A., etc., et al., Respondents, v. GARDEN CITY UNION FREE SCHOOL DISTRICT, Appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant. Louis J. Cerrato, P.C., Garden City South, NY, for respondents.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant.
Louis J. Cerrato, P.C., Garden City South, NY, for respondents.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, RUTH C. BALKIN, JOHN M. LEVENTHAL, JJ.
DECISION & ORDER ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was for summary judgment dismissing the negligent supervision cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
On February 24, 2015, the infant plaintiff, a student at Stratford Avenue School, which is part of the defendant Garden City Union Free School District, allegedly was injured when her hair became caught in a gap between a hand dryer and a wall, upon which the dryer had been installed. The infant plaintiff, by her mother and natural guardian, and her mother suing derivatively, commenced this action alleging that the defendant was negligent in its maintenance of the premises and in its supervision of the infant plaintiff. Following discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendant appeals.
With regard to the premises liability cause of action, the evidence submitted in support of the defendant's motion established, prima facie, that the defendant did not create or have actual or constructive notice of the alleged dangerous condition of the subject hand dryer (see Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Pilgrim v. Avenue D Realty Co. , 173 A.D.3d 788, 789–790, 99 N.Y.S.3d 688 ; Hanney v. White Plains Galleria, LP , 157 A.D.3d 660, 661, 68 N.Y.S.3d 522 ). In opposition, the plaintiffs raised a triable issue of fact, inter alia, as to whether the defendant created the alleged dangerous condition through the installation of the hand dryer. Accordingly, we agree with the Supreme Court's determination denying that branch of the defendant's motion which was for summary judgment dismissing the premises liability cause of action.
However, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the negligent supervision cause of action. The defendant established its prima facie entitlement to judgment as a matter of law dismissing that cause of action by demonstrating that it adequately supervised the infant plaintiff (see B.K. v. Meadow Dr. Sch. , 170 A.D.3d 696, 697, 93 N.Y.S.3d 595 ; Perez v. Comsewogue Sch. Dist. , 141 A.D.3d 577, 578, 36 N.Y.S.3d 159 ; Troiani v. White Plains City School Dist. , 64 A.D.3d 701, 702, 882 N.Y.S.2d 519 ), and, in any event, that any alleged lack of supervision was not a proximate cause of the infant plaintiff's injuries (see Perez v. Comsewogue Sch. Dist., 141 A.D.3d at 578, 36 N.Y.S.3d 159 ; Gomez v. Our Lady of Fatima Church , 117 A.D.3d 987, 988, 986 N.Y.S.2d 550 ). The defendant's submissions established that the incident occurred so quickly that it could not have been prevented by even the most intense supervision (see K.A. v. City of New York , 169 A.D.3d 655, 656, 92 N.Y.S.3d 718 ; Scavelli v. Town of Carmel , 131 A.D.3d 688, 690, 15 N.Y.S.3d 214 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
SCHEINKMAN, P.J., RIVERA, BALKIN and LEVENTHAL, JJ., concur.