Opinion
2019–01114 Index No. 61203/17
07-29-2020
S.A.P., etc., et al., Appellants, v. COUNTY OF WESTCHESTER, et al., Respondents.
Law Office of Stephen B. Kaufman, P.C., Bronx, N.Y. (John V. Decolator of counsel), for appellants. John M. Nonna, County Attorney, White Plains, N.Y. (Linda M. Trentacoste and David H. Chen of counsel), for respondents.
Law Office of Stephen B. Kaufman, P.C., Bronx, N.Y. (John V. Decolator of counsel), for appellants.
John M. Nonna, County Attorney, White Plains, N.Y. (Linda M. Trentacoste and David H. Chen of counsel), for respondents.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Gerald E. Loehr, J.), dated December 24, 2018. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The infant plaintiff, by his father, and his father suing derivatively, commenced this action to recover damages for personal injuries the infant plaintiff allegedly sustained at a park. The defendants moved for summary judgment dismissing the complaint. In an order dated December 24, 2018, the Supreme Court granted the defendants' motion. The plaintiffs appeal.
We disagree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint. "While a municipality is not an insurer of the safety of those who use its parks, it does have a duty to maintain its parks in a ‘reasonably safe condition,’ which includes exercising ordinary care in providing ‘an adequate degree of general supervision’ " ( Taveras v. City of New York, 108 A.D.3d 614, 615, 969 N.Y.S.2d 481 [citation omitted], quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 273, 107 N.E.2d 441 ). Here, the defendants, in moving for summary judgment dismissing the complaint, failed to demonstrate their prima facie entitlement to judgment as a matter of law. Under the circumstances presented here, the evidence submitted by the defendants in support of their summary judgment motion failed to eliminate all triable issues of fact as to whether they exercised adequate supervision of park visitors' use of fires and disposal of hot coals (see Holohan v. County of Suffolk, 150 A.D.3d 1089, 1090, 52 N.Y.S.3d 642 ; see also Noeller v. County of Erie, 145 A.D.2d 919, 920, 535 N.Y.S.2d 854 ). Since the defendants failed to satisfy their prima facie burden, we need not address the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Accordingly, we reverse the order and deny the defendants' motion for summary judgment dismissing the complaint.
BALKIN, J.P., LEVENTHAL, ROMAN and CONNOLLY, JJ., concur.