| Myers v City of New York |
| 2009 NY Slip Op 05751 [64 AD3d 546] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Michael Myers, Appellant, v City of New York,Respondent, et al., Defendant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and DrakeA. Colley of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), datedApril 23, 2008, as granted that branch of the cross motion of the defendant City of New Yorkwhich was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted summary judgment to the defendant City of New Yorkdismissing the complaint insofar as asserted against it in this action involving an accident whichoccurred on public school premises, since the City does not operate, maintain, or control theschool (see Leacock v City of NewYork, 61 AD3d 827 [2009]; Goldes v City of New York, 19 AD3d 448, 449 [2005]; Cruz vCity of New York, 288 AD2d 250 [2001]; Campbell v City of New York, 203 AD2d504, 505 [1994]; Awad v City of New York, 278 AD2d 441 [2000]), which falls under"the exclusive care, custody and control of the [New York City] Board of Education, an entityseparate and distinct from the City" (Bleiberg v City of New York, 43 AD3d 969, 971 [2007]; seeNY City Charter § 521; Education Law § 2590-b [1] [a]; Corzino v City of New York, 56 AD3d370, 371 [2008]; Bailey v City ofNew York, 55 AD3d 426 [2008]; Villaseca v City of New York, 48 AD3d 218, 219 [2008]; Perez v City of New York, 41 AD3d378 [2007]). The plaintiff's reliance on Bleiberg v City of New York (43 AD3d 969 [2007]) is misplaced.In Bleiberg, the Court noted that the City's liability as an out-of-possession landlord wasfounded on sufficient proof to establish that the City had affirmatively created the dangerouscondition which caused the plaintiff's injuries (see Bleiberg v City of New York, 43AD3d at 971). Here, there is no such proof and, in opposition, the plaintiff failed to raise a triableissue of fact. Accordingly, summary judgment was properly awarded to the City since it cannotbe held liable for the alleged negligent maintenance of school property (see Goldes v City ofNew York, 19 AD3d at 449; Cruz v City of New York, 288 AD2d at 250;Goldman v City of New York, 287 AD2d 689 [2001]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Skelos, Dickerson andLott, JJ., concur.