The following papers were read on this motion: Documents Numbered Notice of Motion, Affirmation, Exhibits Annexed 14 Affirmation in Opposition 31 Reply Affirmation 50 Defendant moves pursuant to CPLR 3212 for summary judgment on plaintiff’s premises liability claim. Plaintiff F.M., an infant under the age of 18, states that on May 25, 2016 at 3:15pm, just after his dismissal from school, he was riding his bicycle on a sidewalk in front of the Old Mill Road School, 1775 Old Mill Road, North Merrick, NY 11566. He rode over the curb on the school grounds instead of using the apron several feet away. His front tire got stuck in a section of the curb that was missing concrete, and he was thrown forward. As a result, the handlebar of the bicycle forcefully struck his abdomen, resulting in severe internal injuries. Plaintiff brought this action against the North Merrick Union Free School District alleging that it was negligent in the maintenance, repair, and/or control of the sidewalk on the school grounds. Defendant now seeks summary judgment on three separate grounds. First, that General Obligations Law §9-103 applies and immunizes the school district from suit upon these facts. Second, that any negligence on the part of the school district was not the proximate cause of the Plaintiff’s injuries. Third, that defendant had no actual or constructive notice of the defective condition of the curb, that the curb did not present a dangerous or defective condition, and that the inspections performed by defendant’s employees of the area were routine and adequate. “It is well established that ‘the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.’ (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see also William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475-476 [2013]; CPLR 3212[b] ). Once the movant makes the proper showing, ‘the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action’ (Alvarez, 68 N.Y.2d at 324). The ‘facts must be viewed in the light most favorable to the non-moving party’ (Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks omitted]). However, bald, conclusory assertions or speculation and ‘[a] shadowy semblance of an issue’ are insufficient to defeat summary judgment (S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 [1974] ), as are merely conclusory claims (Putrino v. Buffalo Athletic Club, 82 N.Y.2d 779, 781 [1993]).” (Stonehill Capital Management, LLC v. Bank of the West, 28 N.Y.3d 439 [2016]; see also Fairlane Financial Corp. v. Longspaugh, 144 A.D.3d 858 [2d Dept 2016]; Phillip v. D&D Carting Co., Inc., 136 A.D.3d 18 [2d Dept 2015]). Defendant first contends that summary judgment is appropriate in this case under General Obligations Law §9-103(1)(a) which provides in pertinent part: [A]n owner, lessee or occupant of premises…owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning…, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hand gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes. GOL §9-103 was enacted solely to “induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities.” (Ferres v. City of New Rochelle, 68 N.Y.2d 446 [1986]; see also Rivera v. Glen Oaks Village Owners, Inc., 41 A.D.3d 817 [2d Dept 2007]). “The rationale for the statute is that ‘outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation; [and] more places will be made available if property owners do not have to worry about liability when recreationists come onto their land.’” (Rivera, 41 A.D.3d at 818 [quoting Bragg v. Genesee County Agric. Socy., 84 NY2d 544, 550 [1994]]). Thus, §9-103 “grants landowners (and lessees and occupants) immunity from liability based on ordinary negligence if a person engaged in a listed recreational activity is injured while using their land.” (Bragg, 84 N.Y.2d at 548 ["When confronted with categorical questions, we have interpreted the statute liberally to apply it to public and private land"]; see also Sega v. State, 60 N.Y.2d 183 [1983] ["On its face, section 9-103 unambiguously includes public property within its purview. By its terms, section 9-103 refers to any 'owner, lessee or occupant of premises' without limiting the scope of that clause to private landowners."]). In short, the statute applies when two conditions are met: (1) the plaintiff is engaged in one of the activities identified in §9-103 and (2) the plaintiff is recreating on land suitable for that activity. (See Albright v. Metz, 88 N.Y.2d 656 [1996] [quoting Bragg, 84 N.Y.2d 544]). Here, there is no question that the plaintiff was engaged in the statutorily enumerated activity of bicycle riding. Despite the plaintiff’s argument that the statute does not apply because he was using his bicycle for transportation rather than recreation, the subjective intent of the rider is generally not dispositive. (See Iannotti v. Consol. Rail Corp, 74 N.Y.2d 39 [1989] ["There is nothing in the statute or its history suggesting that the Legislature intended that its application should turn on the subjective intent of the injured person when engaging in one of the enumerated activities."]). Subjective intent was found relevant, as correctly identified by plaintiff’s attorney, in the specific circumstances of Farnham v. Kittinger, 83 N.Y.2d 520 [1994] ["For the immunity statute to apply in the non-inherently recreational motorized vehicles context, there must be a showing of particularized recreational use."]). However, Farnham’s reasoning applied in the realm of non-inherently recreational motor vehicles and has yet to be applied other enumerated activities such as bicycle riding. (Id.). For example, in Sasso v. WCA Hosp., the court held the plaintiff was engaged in the recreational activity of bicycling despite his use of the bicycle as transportation home from school. (Sasso v. WCA Hosp., 130 A.D.3d 1546 [4th Dept 2015]; see also King v. Cornell Univ., 119 A.D.3d 1195, 1196 [3d Dept 2014] ["With one exception not applicable here, a person engaged in one of the enumerated activities is 'presumed to be doing so for recreational purposes' without regard to his or her subjective intent."]; Weller v. Colleges of the Senecas, 217 A.D.2d 280 [4th Dept 1995] ["[P]laintiff’s purpose in riding his bicycle is irrelevant.”]). As to the second condition, the test for suitability of the premises is set forth in Iannotti: The question is whether — notwithstanding its contemporaneous commercial use — the property is the sort which the Legislature would have envisioned as being opened up to the public for recreational activities as a result of the inducement offered in the statute. In other words, is it a type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation? If it is, application of General Obligations Law §9-103 to such property as an inducement to the owner to make it available to the public would further the statutory purpose. (Iannotti, 74 N.Y.2d at 45-46 [emphasis added]; see also Albright, 88 N.Y.2d 656; Rivera, 41 AD3d at 818). As noted above, the recreational use statute has been applied to both public and private land. (Bragg, 84 N.Y.2d 544). “When the landowner is a government entity, however, the appropriate inquiry is the role of the landowner in relation to the public’s use of the property in determining whether it is appropriate to apply the limited liability provision of [the statute].” (Quackenbush v. City of Buffalo, 43 A.D.3d 1386, 1387 [4th Dept 2007] [concluding that statutory immunity did not apply to an actively operated park because there was no inducement to open the property up to the specific activities]; see also Baisley v. State, 163 AD2d 502 [2d Dept 1990]). In McGregor v. Middletown Sch. Dist. No. 1, for example, the recreational use statute was applied to immunize a school district when the plaintiff was injured while sledding down a slope on school property. (McGregor v. Middletown Sch. Dist. No. 1, 190 A.D.2d 923 [3d Dept 1993]). In that case, the school grounds were not the type of supervised park that was already open to the public for recreational use and, therefore, statutory immunity applied. (Id.; see Ferres, 68 N.Y.2d 446). Although a slope used for sledding, or grounds used for hiking, even perhaps a parking lot used for bicycling or motorized scooting on school premises might fall within the scope of the statute, the analysis must focus on the specific area of the activity. As the Iannotti court noted in dicta: The concurrence would not adopt the [propriety of use] test. Rather, it would apply the statute as long as the injured party is “engaged in one of the listed activities at the time of his injury” even when the property is not a suitable area for the public to pursue the particular recreational activity (see, concurring opn, at 51). It follows that under this construction, section 9-103 would apply, for example, to give an owner of a small urban backyard immunity from the claim on behalf of a neighbor’s child injured while riding a bicycle. We submit that the Legislature could not have intended this result for two reasons: (1) there could be no public interest in inducing the owners of such unsuitable properties to make them available for public recreation; and (2) that being so, offering immunity as the quid pro quo to such owners would be pointless and would not further the underlying statutory purpose (Ferres v. City of New Rochelle, supra, at 451, 452). The concurrence, however, would, for the sake of creating a “bright-line test” (see, concurring opn, at 50), make the statute generally applicable regardless of whether the property could be deemed suitable for public recreational use. (Iannotti v. Consol. Rail Corp., 74 N.Y.2d at 46). In Diaz v. New York City Housing Auth., 159 Misc.2d 72 [Sup. Ct. Kings County 1993], the court found that GOL §9-103 did not apply to bicycle riding on an asphalt walkway or path leading from a public sidewalk to a housing complex. The court determined that the area was not the sort of premises that “the Legislature would have envisioned as being opened up to the public for recreational activities such as bicycle riding as a result of inducement offered by the statute.” [Diaz, 159 Misc.2d at 75 [citing Iannotti]). Rather, the court explained, [a]lthough the walkway may have been physically conducive to bicycle riding, it was not appropriate for such activity by the general public. Bicycle riding on the walkway by the general public would be disruptive and could threaten with injury persons such as tenants who were using the walkway to go to and from the public sidewalk and the apartment building (see, Baisley v. State of N.Y., 163 A.D.2d 502, 504, 557 N.Y.S.2d 956 [2nd Dept]). (Diaz, 159 Misc.2d at 75; see also Baisley, 163 A.D.2d at 504 [stating that although physically conducive, the trail in question was not appropriate for ATV riding where it was used for hiking, birding, cross-country skiing, etc., and the use of ATV's "would not only be likely to disrupt the stated activities, but also threaten those engaged in those activities with serious injury"]). Here, despite the location of the bicycle rack at the entry of the school, the entry walkway is not an area suited to bicycle riding, especially not at the time of day that this accident took place, i.e., shortly after dismissal, when bicycle riding could be disruptive and threaten injury to others.1 Accordingly, the court finds that GOL §9-103 is inapplicable to this case and does not serve as a basis for summary judgment. Defendant next argues that any negligence on the part of the District was not the proximate cause of plaintiff’s injuries and that plaintiff’s actions of going directly over the curb were a superseding cause of the injury. A landowner or lessee has a duty to exercise reasonable care in order to maintain its property in a safe condition (see Basso v. Miller, 40 NY2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564 [1976]; Tagle v. Jakob, 97 NY2d 165, 763 N.E.2d 107, 737 N.Y.S.2d 331 [2001]). It is, however, well established that while a defendant is liable for all natural and foreseeable consequences of its acts, an intervening act will constitute a superseding cause and will serve to relieve a defendant of liability when the act is of such an extraordinary nature or so attenuated from the defendant’s conduct that responsibility for the injury should not reasonably be attributed to the defendant (see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993]; Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725 [1983]; Elardo v. Town of Oyster Bay, 176 A.D.2d 912, 575 N.Y.S.2d 526 [1991]). (Barth v. City of New York, 307 A.D.2d 943 [2d Dept 2003]; see also Restatement 2d of Torts §435 ["Negligent conduct may result in unforeseeable harm to another…because a second force the operation of which he had no reason to anticipate has been a contributing cause in bringing about the harm."]). Proximate cause in a general negligence action is rarely determined as a matter of law and remains a fact-specific inquiry. (Hain v. Jamison, 28 N.Y.3d 524 [2016]). Moreover, a surprising event will not break the chain of causation where the event was foreseen or foreseeable. “If an event appears to have been normal, not unusual, and closely related to the danger created by the actor’s original conduct, it is regarded as within the scope of the risk even though, strictly speaking, it would not have been expected by a reasonable man in the actor’s place.” (Restatement 2d of Torts, §281, Illustration 3[g]; see also Di Ponzio v. Riordan, 89 N.Y.2d 578 [NY 1997] ["where an individual breaches a legal duty and thereby causes an occurrence that is within the class of foreseeable hazards that the duty exists to prevent, the individual may be held liable, even though the harm may have been brought about in an unexpected way."]). In the case at bar, the plaintiff rode his bicycle off a curb, instead of using the driveway located feet away, causing his wheel to get caught in the missing piece of concrete in the curb. In Weller v. Colleges of the Senecas, the plaintiff rode his bicycle off a sidewalk onto a dirt path, encountered tree roots and was thrown from the bicycle. (Weller, 217 A.D.2d 280). The court nonetheless found defendant in that case failed to show that the plaintiff’s decision to take the dirt path was the sole proximate cause of the incident. (Id. at 284; see also Taylor v. Village of Ilion, 265 A.D.2d 841 [4d Dept 1999] ["whether the conduct of plaintiff was reckless and thus constituted an unforeseeable superseding cause of his injury is an issue of fact for trial"]). Here, too, whether the plaintiff’s actions were foreseeable presents a triable issue of fact, precluding summary judgment. Riding one’s bike down a curb on school grounds cannot be said as a matter of law to be so extraordinary or far removed from any negligence resulting from the missing concrete as to break the chain of causation. Although the incident may have been unexpected, it could have been within the class of foreseeable hazards. Therefore, a triable issue of fact exists as to whether the incident falls within the scope of risk. (Di Ponzio, 89 N.Y.2d 578; Res. 2d, §281). Any questions of comparative negligence are reserved for trial. Finally, defendant contends that summary judgment is appropriate because the curb did not present a defective condition and the school district lacked actual or constructive notice of any defective condition. As a general matter, “for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence.” (Lezama v. 34-15 Parsons Blvd., LLC, 16 A.D.3d 560 [2d Dept 2005]; Kuchman v. Olympia & York, USA, Inc., 238 A.D.3d 381 [2d Dept 1997]). “[A] defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence.” (Behrens v. North Merrick Fruits, Inc., 148 A.D.3d 972 [2d Dept 2017]; Bender v. Cemetery of the Holy Rood, 129 A.D.3d 754 [2d Dept 2015]; see also Przybyszewski v. Wonder Works Constr., Inc., 303 A.D.2d 482 [2d Dept 2003]). “[W]hether a dangerous or defective condition exists on the property of another so as to create liability ‘depends on the peculiar facts and circumstances of each case’ and is generally a question of fact for the jury.” (Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997]; but see Outlaw v. Citibank, N.A., 35 A.D.3d 564 [2d Dept 2006] ["Injuries resulting from trivial defects are generally not actionable"]). To determine if a defect is trivial in nature, “the court must examine all of the facts presented” including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place and circumstances of the injury. (Outlaw, 35 A.D.3d 564 [quoting Sanna v. Wal-Mart Stores, Inc., 271 A.D.2d 595 [2d Dept 2000]]; see also Trincere, 90 N.Y.2d 976 ["[T]here is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable”]). Photographs that depict accurately the site of the incident may be used to establish that a defect is trivial. (Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982 [2d Dept 2011]). Here, the photographs presented by the defendant do not establish that the missing concrete in the curb was trivial as a matter of law. Thus, there is a triable issue of fact as to whether a dangerous or defective condition exists. (Trincere, 90 N.Y.2d 976). Further, there is a question of fact as to whether the defendant caused the defect. Deposition testimony established that the school district would handle snow removal duties, at times employing a snowplow. Indeed, John Rojecki, the Head Custodian of the school at the time of the incident, stated “there’s always some kind of scrape or crevice in front of the school because they would go through with the plow.” (Deposition of John Rojecki, Ex. J to Def. Mot. at 26). He further remarked “[y]ou can see the scrape line from the plow….” (Id. at 27). These statements raise a triable issue of fact as to whether the school district itself “affirmatively created the condition” in question. (Lezama, 16 A.D.3d 560). The school district, as movant, has therefore failed to meet its initial burden of showing that it did not create the allegedly dangerous condition. (Behrens, 148 A.D.3d 972). The defendant has also not established that it was without actual or constructive knowledge of the condition. The plaintiffs allege that the issue of the defective concrete at the school was raised at PTA meetings and that the school board had budgeted to have it fixed. (Deposition of Christine Marchica, Ex. H to Def. Mot. at 37). Whether this constitutes actual notice is likely a question of fact that would preclude summary judgment. Next, “[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986]). “To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.” (Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598 [2d Dept 2008]). “[P]hotographs may be used to prove constructive notice of an alleged defect shown in the photographs if they were taken reasonably close to the time of the accident and there is testimony that the condition at the time of the accident was substantially as shown in the photograph.” (Moons v. Wade Lupe Constr. Co., Inc., 24 A.D.3d 1005 [3d Dept 2005] [quoting Kniffin v. Thruway Food Markets, 177 A.D.2d 920 [3d Dept 1991]]); see also 1 LexisNexis AnswerGuide New York Negligence §3.07[d][1] ["it has been held that a jury could infer from the irregularity, width, depth and appearance of the defect in a concrete surface…in a photograph that the condition must have existed over such a length of time that knowledge of the condition should have been acquired by the defendant"]). In Moons v. Wade Lupe Constr. Co., the plaintiff presented photos of the allegedly defective non-transient condition, a pothole. (Moons, 24 A.D.3d 1005). Given the plaintiff’s status as the nonmoving party, the court concluded the photos presented a triable issue of fact regarding constructive notice. (Id.) In this case, plaintiff’s father testified that the photographs of the curb were taken within 30 days of the incident, and the condition of the curb was substantially the same as on the day in question. (Deposition of Frank Marchica, Ex. G to Def. Mot. at 10). He also testified that the curb was in the same condition for years prior to the incident. (Id. at 25-26). Defendant provided no specific reference to an inspection of the premises at or near the day in question. Therefore, given the non-transient nature of the defect, there remains a triable issue of fact regarding defendant’s constructive notice as well. For the foregoing reasons, it is hereby ORDERED, that the defendant’s motion for summary judgment is denied. This constitutes the decision and order of this court. All applications not specifically addressed herein are denied. Dated: July 20, 2020
