| Daefler v Briarcliff Manor Union Free School Dist. |
| 2010 NY Slip Op 03268 [72 AD3d 872] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Simon Daefler, Individually and as Father and Natural Guardian ofAnna-Samsarra Daefler, Respondent, v Briarcliff Manor Union Free School District etal., Appellants. |
—[*1] James W. Borkowski, White Plains, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.),dated September 4, 2009, as denied that branch of their motion which was for summaryjudgment dismissing the claim to recover damages based upon a dangerous and defectivecondition.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendants' motion which was for summary judgment dismissing the claim torecover damages based upon a dangerous and defective condition is granted.
The infant plaintiff was injured when she slipped and fell while running across the gravelsurface of her school playground during kindergarten recess. The plaintiff subsequentlycommenced this action to recover damages for personal injuries, alleging that the infant plaintiffwas injured as a result of negligent supervision, and the dangerous and defective condition of theplayground surfacing. After depositions were conducted, the defendants moved for summaryjudgment dismissing the complaint, submitting evidence including the affidavit of the teacher'saide who was supervising the playground area at the time the accident occurred, and affidavitsfrom a certified playground safety inspector and a licensed landscape architect. The SupremeCourt granted that branch of the defendants' motion which was for summary judgmentdismissing the claim to recover damages based upon negligent supervision. However, theSupreme Court denied that branch of the motion which was for summary judgment dismissingthe claim to recover damages based upon the alleged dangerous and defective condition of theplayground surfacing, concluding, inter alia, that an issue of fact existed as to whether the gravelsurface was maintained at a reasonably safe depth. We disagree.
The defendants made a prima facie showing of their entitlement to judgment as a matter oflaw dismissing the claim to recover damages based upon a dangerous or defective condition bysubmitting, inter alia, affidavits from two experts demonstrating that the gravel surface of theplayground conformed to good and accepted safety standards, and was maintained in areasonably safe condition (see Giulini vUnion Free School Dist. #1, 70 AD3d 632 [2010]; Bergin v Town [*2]of Oyster Bay, 51AD3d 698 [2008]; Swan v Town ofBrookhaven, 32 AD3d 1012, 1013 [2006]; Banks v Freeport Union Free SchoolDist., 302 AD2d 341, 342 [2003]). In opposition, the plaintiff failed to raise a triable issue offact. The plaintiff offered no proof of the actual depth of the gravel in the area of the playgroundwhere the accident occurred, and no evidence that the allegedly inadequate depth of the gravelcreated a slipping hazard which proximately caused the infant plaintiff's fall (see Giulini v Union Free School Dist.#1, 70 AD3d 632 [2010]; Carey v Commack Union Free School Dist. No. 10, 56 AD3d 506,507 [2008]; Bergin v Town of Oyster Bay, 51 AD3d at 699; Swan v Town ofBrookhaven, 32 AD3d at 1013; Banks v Freeport Union School Dist., 302 AD2d at342). Accordingly, the Supreme Court should have awarded the defendants summary judgmentdismissing the complaint. Mastro, J.P., Eng, Belen and Austin, JJ., concur.