| Giulini v Union Free School Dist. #1 |
| 2010 NY Slip Op 00807 [70 AD3d 632] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Esmerelda Giulini, Respondent, v Union Free SchoolDistrict #1, Appellant, et al., Defendant. |
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In an action to recover damages for personal injuries, etc., the defendant Union Free SchoolDistrict #1 appeals from an order of the Supreme Court, Westchester County (Smith, J.), datedMay 27, 2009, which denied its motion for summary judgment dismissing the complaint insofaras asserted against it.
Ordered that the order is reversed, on the law, with costs, and the appellant's motion forsummary judgment dismissing the complaint insofar as asserted against it is granted.
A landowner is under a duty to maintain its property in a reasonably safe condition under theexisting circumstances, including the likelihood of injury to third parties, the potential that anysuch injury would be of a serious nature, and the burden of avoiding the risk (see generallyBasso v Miller, 40 NY2d 233, 241 [1976]). In order to recover damages for injuries causedby the failure of a landowner to maintain its property in a reasonably safe condition, a plaintiffmust establish that the landowner created or had actual or constructive notice of any hazardouscondition which precipitated an injury claimed by that party (see Williams v Long Is. R.R., 29 AD3d 900 [2006]; DeGruccio v 863 Jericho TurnpikeCorp., 1 AD3d 472 [2003]; Castellitto v Atlantic & Pac. Co., 244 AD2d 379,380 [1997]). Further, to provide constructive notice, a defect must be visible and apparent and itmust exist for a sufficient length of time prior to the accident to permit the owner or itsemployees to discover and remedy it (see Gordon v American Museum of NaturalHistory, 67 NY2d 836, 837 [1986]). However, as the proponent of a motion for summaryjudgment, a landowner must tender evidence sufficient to demonstrate, prima facie, the absenceof a material issue of fact (see generally Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
Here, the defendant Union Free School District #1 (hereinafter the school district) satisfiedits prima facie burden of establishing its entitlement to judgment as a matter of law on the issuesof notice and creation of the alleged defect and, thus, on the issue of whether it maintained thesubject playground in reasonably safe condition (see Gray v South Colonie Cent. School Dist., 64 AD3d 1125,1126-1127 [2009]; Padden v County ofSuffolk, 52 AD3d 663, 664 [2008]; Banks v Freeport Union Free School Dist.,302 AD2d 341 [2003]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). The deposition testimony of [*2]the school district'sgrounds supervisor and facilities manager established that the school district had received noprior complaints regarding an alleged hole under the mulch in the playground where theplaintiff's daughter, Chloe Giulini, purportedly fell. In addition, there was no nexus between thealleged hole and any conduct on the part of the school district which may have created thealleged hole. Further, the affidavit of the school district's expert established, prima facie, that theschool district's use and maintenance of mulch wood chips in the subject playground was inaccordance with good and accepted industry practice.
In opposition, the plaintiff failed to raise a triable issue of fact. Chloe, who was then fouryears old, was with her father when she allegedly tripped and fell as she ran from one area of theplayground to another. The father did not witness Chloe fall. Rather, the father only becameaware that Chloe fell when, afterwards, the child ran up to him crying and holding her arm. Theplaintiff, who was not present in the playground at the time of the incident, testified at herdeposition that she returned to the playground with the father and Chloe three days later to takephotographs of the area where Chloe purportedly told them that she fell. The father, who was notdeposed, stated, in his affidavit in opposition to the school district's motion that, after theincident, he observed a "rut in the mulch" in the area where Chloe fell, which was partiallycovered with one-half-inch of mulch. The father further described the depression as "five incheswide and one and one half inches deep." The father's assertions as to the location of Chloe's falland the condition which allegedly caused her to fall were not founded upon his personalobservations of Chloe's conduct or the alleged defect at the instant when she fell but, rather, uponinadmissible hearsay, which, standing alone, is insufficient to raise a triable issue of fact (see Stock v Otis El. Co., 52 AD3d816, 816-817 [2008]; Schwartz vNevatel Communications Corp., 8 AD3d 469 [2004]).
Based on the foregoing, the plaintiff failed to raise a triable issue of fact as to whether therewas a defective condition. The plaintiff failed to refute the assertions of the school district'sexpert that the mulch wood chips, which the expert described as "a natural loose substrateprovided for the purpose of providing additional cushioning and shock absorption [were]properly applied in this case to fulfill its function as a non-compacted substrate substance subjectto easy movement in response to the activities of children at a playground." The plaintiff alsofailed to raise a triable issue of fact in response to the expert's opinion that "the ever-shiftingquality of the material [was] the reason for the patterns of irregularity and depressions whichnaturally occur."
Accordingly, the Supreme Court should have granted the school district's motion forsummary judgment dismissing the complaint insofar as asserted against it.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Balkin, Leventhal andLott, JJ., concur.