William Pager, Brooklyn, NY, for appellants.
E. Johnson, Corporation Counsel, New York, NY (Deborah A.
Brenner and Elizabeth I. Freedman of counsel), for
D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN,
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court, Kings
County (Katherine Levine, J.), dated June 15, 2018. The order
granted the defendants' motion for summary judgment
dismissing the complaint.
that the order is affirmed, with costs.
injured plaintiff, a then-third grade student at P.S. 44,
stopped while walking between classes to talk with a friend.
The injured plaintiff testified at a hearing held pursuant to
General Municipal Law § 50-h that a door that he was
holding as he talked with his friend closed
"automatically on its own" "really, really,
really, really, fast." The door severed the tip of the
injured plaintiff's index finger, which had become caught
between the door and the doorjamb near the hinges.
injured plaintiff and his mother commenced this personal
injury action against the defendants, the City of New York
and the New York City Department of Education (hereinafter
the DOE). Following discovery, the defendants moved for
summary judgment dismissing the complaint. The Supreme Court
granted the defendants' motion. The plaintiffs appeal.
to the plaintiffs' contention, the Supreme Court properly
considered the deposition transcripts submitted in support of
the motion. The unsigned deposition transcripts of the
school's custodial engineer and the injured
plaintiff's teacher, who testified on behalf of their
employer, the DOE, were admissible under CPLR 3116(a) because
the transcripts were submitted by the DOE and, therefore,
were adopted as accurate (see David v Chong Sun Lee,
106 A.D.3d 1044, 1045).
defendants established their prima facie entitlement to
judgment as a matter of law dismissing the cause of action
alleging premises liability by submitting evidence that the
subject door was not defective. The deposition testimony of
the building's custodial engineer established that he
inspected the door at least twice per week before the
accident. Moreover, the school principal provided evidence
that a search of the school's records revealed no
"indication of any maintenance, repairs, work orders, or
other issues reported" with respect to the door during
the two-year time period prior to the accident. This
evidence, together with evidence that the subject door was in
regular use, including regular use by the infant plaintiff,
was sufficient to establish, prima facie, that the door was
not defective (see Dillon K. v Northern Blvd. 4818,
LLC, 161 A.D.3d 664, 664-665; Lezama v 34-15 Parsons
Blvd, LLC, 16 A.D.3d 560; Aquila v Nathan's
Famous, 284 A.D.2d 287, 287-288).
to the plaintiffs' contention, it cannot be inferred that
the subject door was defective or improperly maintained
merely because it could close fast enough, or hard enough, to
cause the injured plaintiff's injuries (see Fontana v
R.H.C Dev., LLC, 69 A.D.3d 561, 563; Lezama v 34-15
Parsons Blvd, LLC, 16 A.D.3d at 561). Therefore, the
injured plaintiff's testimony at the hearing held
pursuant to General Municipal Law § 50-h that the door
closed "really, really, really, really, fast" did
not raise a triable issue of fact. Accordingly, we agree with
the Supreme Court's determination granting that branch of
the defendants' motion which was for summary judgment
dismissing the cause of action alleging premises liability.
we agree with the Supreme Court's determination granting
that branch of the defendants' motion which was for
summary judgment dismissing the cause of action alleging
negligent supervision. Although schools have a duty to
provide supervision to ensure the safety of those in their
charge, schools will be held liable only for foreseeable
injuries proximately related to the absence of adequate
supervision (see Mirand v City of New York, 84
N.Y.2d 44, 49; K.B. v City of New York, 166 A.D.3d
744, 745). When an accident occurs in so short a span of time
that even the most intense supervision could not have
prevented it, lack of supervision is not the proximate cause
of the injury (see K.B. v City of New York, 166
A.D.3d at 745). Here, the defendants established, prima
facie, that any alleged inadequacy in the level of
supervision was not a proximate cause of the accident, and in
opposition, the plaintiffs failed to raise a triable issue of
separate and apart from the above, the defendants also
established their prima facie entitlement to judgment as a
matter of law dismissing the complaint insofar as asserted
against the City by showing that the accident occurred on
public school premises, which the City does not operate,
maintain, or control (see Dilligard v City of New
York, 170 A.D.3d 955, 957). ...