| Carey v Commack Union Free School Dist. No. 10 |
| 2008 NY Slip Op 08693 [56 AD3d 506] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Tyler Carey, Respondent, v Commack Union Free SchoolDistrict No. 10 et al., Appellants. |
—[*1] Kennedy & Gillen, Garden City, N.Y. (Christopher F. Mansfield of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (R. Doyle, J.), dated November 15, 2007, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The infant plaintiff (hereinafter the plaintiff) allegedly was swinging from a metal ringapparatus in a school playground when he lost his grip, fell, and sustained injuries. The plaintiff,by his mother, commenced this action alleging that the defendants negligently failed to supervisehim and failed to maintain the playground in a reasonably safe manner. The defendants movedfor summary judgment dismissing the complaint, contending that they adequately supervised theplaintiff and adequately maintained the playground. The plaintiff opposed the motion andsubmitted, inter alia, an affidavit of an expert who had not previously been disclosed. TheSupreme Court denied the motion on the ground that the defendants failed to meet their initialburden as the movants. We reverse.
The defendants established, prima facie, that there was adequate playground supervision and,in any event, that lack of supervision was not a proximate cause of the accident (see Benson v Union Free School Dist. #23,37 AD3d 748 [2007]; Botti vSeaford Harbor Elementary School [*2]Dist. 6, 24 AD3d486 [2005]; Navarra v Lynbrook Pub. Schools, Lynbrook Union Free School Dist.,289 AD2d 211 [2001]). In opposition, the plaintiff failed to raise a triable issue of fact. Thenonmandatory guidelines relied upon by the plaintiff's expert were insufficient to raise a triableissue of fact (see Peuplie v LongwoodCent. School Dist., 49 AD3d 837 [2008]; Davidson v Sachem Cent. School Dist.,300 AD2d 276 [2002]). Contrary to the plaintiff's contention, the plaintiff was engaged in anapproved use of a playground apparatus at the time of the accident. In any event, the accidentoccurred in so short a span of time that closer supervision could not have prevented the accident(see Reardon v Carle Place Union FreeSchool Dist., 27 AD3d 635, 636 [2006]; see also Swan v Town of Brookhaven, 32 AD3d 1012 [2006];Davidson v Sachem Cent. School Dist., 300 AD2d 276 [2002]; Lopez v FreeportUnion Free School Dist., 288 AD2d 355 [2001]).
In response to the defendants' demonstration, as a matter of law, that they maintained theplayground in a reasonably safe condition, the plaintiff failed to submit evidence sufficient toraise a triable issue of fact as to whether there was sufficient gravel below the metal ringapparatus (see Bergin v Town of OysterBay, 51 AD3d 698 [2008]; Sobti v Lindenhurst School Dist., 35 AD3d 439 [2006]; Swan v Town of Brookhaven, 32AD3d 1012 [2006]; Capotosto vRoman Catholic Diocese of Rockville Ctr., 2 AD3d 384 [2003]).
Accordingly, the Supreme Court should have granted the defendants' motion for summaryjudgment dismissing the complaint. Skelos, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.[See 2007 NY Slip Op 33845(U).]