The following papers read on this motion: Notice of Motion and Affidavits X Memorandum of Law in Support of Motion X Affirmation in Opposition X Reply Affirmation X Relief Requested Motion by the defendant, Sewanhaka Central High School District, for an order pursuant to CPLR 3212, granting summary judgment in its favor dismissing the instant action. The plaintiffs submit opposition. The defendant submits a reply affirmation. Background The plaintiffs initiated the instant action to recover for personal injuries suffered by R.B., an infant, after R.B. injured his hand at the defendant’s school on March 2, 2017. At the time of R.B.’s accident, several students were congregating in the entryway to the school building while several others exited at the end of the school day. The infant plaintiff R.B. performed an act common to the students whereby they simulate a “slam dunk” in basketball by attempting to jump up and slap the wall over another student’s head. However, in this particular instance, instead of slapping a wall, R.B.’s hand came into contact with a display panel, causing it’s glass door to shatter, and causing a laceration to R.B.’s hand. The plaintiffs allege that the defendant negligently maintained the premises by allowing the glass door to remain unreplaced by a safer material, that the defendant negligently hired, trained, and retained staff, and that the defendant violated its duty to supervise and control the premises in a reasonably safe condition at the time of the subject accident. Applicable Law It is well-settled that in order “[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212[b]), and he must do so by tender of evidentiary proof in admissible form” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, citing Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065, 1067-1068). Once a movant has met its initial burden of proof on a summary judgment motion, the burden shifts to the opponent to provide evidence in admissible form to demonstrate an issue of fact (Gaddy v. Eyler, 582 N.Y.S.2d 990). It is well established that a party opposing a summary judgment motion must “lay its proof” and present evidence, in admissible form, demonstrating the existence of triable issues of fact which preclude summary judgment (Friends of Animals, Inc., supra; Zuckerman, supra; Morgan v. New York Telephone, 220 A.D.2d 728). Bald, conclusory allegations, speculation and surmise are insufficient to defeat a motion for summary judgment (Shapiro v. Health Ins. Plan of Greater NY, 7 N.Y.2d 56; Skouras v. New York City Transit Authority, 48 A.D.3d 547; Gelesko v. Levy, 37 A.D.3d 528). Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (Mirand v. City of New York, 84 N.Y.2d 44). A school, however, is not an insurer of children’s safety and will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision (Paragas v. Comsewogue Union Free School Dist., 65 A.D.3d 1111). Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the defendant school district is warranted (Ronan v. School Dist. of City of New Rochelle, 35 A.D.3d 429). To impose liability upon a defendant, there must be evidence tending to show the existence of a dangerous or defective condition, and that the defendant either created the condition or had actual knowledge of it (Gordon v. American Museum of Natural History, 501 N.Y.S.2d 646). As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability (Elliott v. City of New York, 95 N.Y.2d 730). 8 NYCRR 155.7(c) requires glazing of panels and doors with safety glazing materials in certain areas including “gymnasiums and playrooms and elsewhere where subject to physical abuse.” Discussion In support of its motion, the defendant submits the parties’ deposition transcripts as well as a video depicting the subject accident which was relied upon by both parties. R.B. and a friend can be seen lightly “horsing around” in the entrance area of the school for approximately seven seconds before R.B. suddenly jumped up and slapped the glass panel, injuring his hand. Two staff members can then be seen entering the area within thirty seconds after the subject accident. The video makes clear that the subject accident was not caused by an inherently dangerous condition, but rather by R.B.’s unforeseeable act which could not have been prevented by any reasonable degree of supervision (see Ronan, supra), and that there is no evidence that the subject display panel constituted a dangerous or defective condition, let alone whether defendant created or had knowledge of such a dangerous or defective condition (see Gordon, supra). In opposition, the plaintiffs submit the report of Paul Angelides, a licensed professional engineer. Mr. Angelides inspected the subject display panel and opines that the defendant was in violation of a duty to replace the glass which injured R.B.’s hand, relying on 8 NYCRR 155.7(c). Mr. Angelides further opines that the defendant’s staff should have been on notice as to the code requirements, concluding that staff was improperly trained and provided inadequate supervision in the subject area. However, while Mr. Angelides opines that the school’s entryway is “an area of foreseeable impact” and notes that the subject display panel is near a fire alarm pull station, the video clearly demonstrates that the subject area is not “subject to physical abuse” akin to “gymnasiums and playrooms. As such, the requirements of 8 NYCRR 155.7(c) do not apply to the display panel in question. Conclusion In light of the foregoing, the plaintiffs have failed to raise a triable issue of fact as to whether the subject display panel was a defective or dangerous condition or that defendant was on notice of a requirement that the glass needed to be replaced (see Gordon, supra; see also 8 NYCRR 155.7[c]). Nor have the plaintiffs raised an issue of fact as to whether more intense supervision would have prevented the subject accident (see Paragas, supra; see also Ronan, supra). Accordingly, it is hereby ORDERED that the defendant’s motion for summary judgment is granted, and therefore, the instant action is dismissed. Dated: November 4, 2019
