NATASHA D. WALLACE, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF NATHANIEL DEMARIO WALLACE, AN INFANT, PLAINTIFF-APPELLANT,
M & C HOTEL INTERESTS, INC., BUFFALO RHM OPERATING LLC, AND CDL HOTELS USA, INC., DEFENDANTS-RESPONDENTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA LLP, BUFFALO (KATHLEEN J. MARTIN OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN,
from an order of the Supreme Court, Erie County (Timothy J.
Drury, J.), entered January 12, 2016. The order granted the
motion of defendants for summary judgment dismissing the
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
In this negligence action arising from an incident in which
plaintiff's son suffered a near-drowning in a hotel pool,
plaintiff appeals from an order granting defendants'
motion for summary judgment dismissing the complaint. We
complaint, as amplified by the bill of particulars, alleges
that defendants were negligent in, inter alia, failing to
provide lifeguards or otherwise adequately supervise bathers
using the hotel pool, allowing the pool to be overcrowded,
and allowing a dangerous condition to exist on the premises,
i.e., in allowing a group of children to play games in and
around the pool. We note at the outset that plaintiff on
appeal has abandoned any challenge to the dismissal of her
claim that defendants were negligent in allowing an excessive
number of bathers in the pool (see Ciesinski v Town of
Aurora, 202 A.D.2d 984, 984).
met their initial burden with respect to the lifeguard and
bather supervision claims by submitting the relevant section
of the New York State Sanitary Code (Sanitary Code), which
provides that, "[w]hen a swimming pool... is part of a
temporary residence or a campground, as defined in Part 7 of
this Title, the operator must provide either Supervision
Level IIa, IIb, III, or IV aquatic supervision. When
Supervision Level III or IV is selected, on-premise CPR
certified staff is not required" (10 NYCRR 6-1.23 
[i]). Hotels are temporary residences within the meaning of
the regulation (see 10 NYCRR 7-1.1 [j]), and the
parties correctly agree that the term "on-premise CPR
certified staff" is synonymous with lifeguards
(see 10 NYCRR 6-1.31). Defendants also submitted a
report from the Erie County Department of Health, indicating
that the "Hotel Pool employs Supervision Level IV"
and that defendants met all the requirements for the use of
that level of supervision. On appeal, plaintiff does not
challenge the finding that the pool at issue was properly
designated Supervision Level IV under the regulation.
Consequently, Supreme Court properly granted the motion
insofar as defendants sought summary judgment dismissing the
claims arising from failure to provide lifeguards and
poolside supervision inasmuch as the Sanitary Code provides
that defendants had no duty to provide that level of
supervision. Indeed, "[i]t is well established that
before a defendant may be held liable for negligence it must
be shown that the defendant owes a duty to the
plaintiff" (Pulka v Edelman, 40 N.Y.2d 781,
782, rearg denied 41 N.Y.2d 901; see e.g. Olson
v Brunner, 261 A.D.2d 922, 923, lv denied 94
N.Y.2d 759; cf. Villar v Howard, 126 A.D.3d 1297,
1299, affd 28 N.Y.3d 74).
further conclude that the court properly granted
defendants' motion with respect to the remaining claims,
in which plaintiff alleges that defendants were negligent in
permitting a dangerous condition to exist on the premises,
i.e., a group of children running and jumping in the pool
area. "It is beyond dispute that landowners and business
proprietors have a duty to maintain their properties in
reasonably safe condition... It is also clear that this duty
may extend to controlling the conduct of third persons who
frequent or use the property, at least under some
circumstances" (Di Ponzio v Riordan, 89 N.Y.2d
578, 582-583). Specifically, "[l]andowners have a duty
to control the conduct of third persons on their premises
when they have the opportunity to control such persons and
are reasonably aware of the need for such control' "
(O'Callaghan v Jones, 283 A.D.2d 949, 949,
quoting D'Amico v Christie, 71 N.Y.2d 76, 85).
Here, even assuming, arguendo, that there is an issue of fact
whether the injuries sustained by plaintiff's son were
proximately caused by that dangerous condition, i.e., when
one of the other children bumped into him and knocked him
under the water, rather than by him taking in too much water,
getting cramps, or simply being unable to swim well enough to
stay afloat, we conclude that "defendants met their
initial burden by establishing that they were not aware of