OSORIO v. Peace of Mind Learning Center, etc., et al., Defendants. (2007)

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about September 1, 2006, which granted defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Defendant made a prima facie case of entitlement to summary judgment by establishing that it had no notice of prior sexual assaults at the subject pool before the alleged sexual assaults were perpetrated upon infant plaintiffs, and that the assaults were not foreseeable (see Maheshwari v. City of New York, 2 N.Y.3d 288, 778 N.Y.S.2d 442, 810 N.E.2d 894 [2004] ).   Defendant also demonstrated that it took reasonable measures to oversee the pool activities and maintain the pool in a safe condition (see Florman v. City of New York, 293 A.D.2d 120, 127, 741 N.Y.S.2d 233 [2002] ).   In response, plaintiffs pointed to no prior incidents that would have alerted defendant to the foreseeability of the sexual assaults (see Michele M. v. Board of Educ. of City of New York, 3 A.D.3d 370, 372, 771 N.Y.S.2d 89 [2004] ), and otherwise failed to raise a triable issue of fact regarding whether the pool staff failed to quickly and effectively remove the perpetrator from the pool after being notified of the initial sexual assault.