BRENNAN 14 v. SINSKI (2006)

 Plaintiffs commenced this action to recover damages for injuries sustained by their child when she jumped from a small tree located on property owned by defendants, the child's maternal uncle and his wife, who were “watching [her] for the day.”   According to plaintiffs, defendants were negligent in failing adequately to supervise the child and in maintaining their premises in a defective or unreasonably dangerous condition.   Supreme Court properly denied that part of defendants' motion for summary judgment dismissing the complaint, as amplified by the bill of particulars, with respect to the claim of negligent supervision.   A person to whom the custody and care of a child is entrusted by a parent “is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so” (Appell v. Mandel, 296 A.D.2d 514, 514, 745 N.Y.S.2d 491;  see Singh v. Persaud, 269 A.D.2d 381, 382, 702 N.Y.S.2d 628;  see generally Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  Zalak v. Carroll, 15 N.Y.2d 753, 754, 257 N.Y.S.2d 177, 205 N.E.2d 313).   Defendants failed to establish their entitlement to judgment dismissing the claim of negligent supervision (see Oliverio v. Lawrence Pub. Schools, 23 A.D.3d 633, 805 N.Y.S.2d 638;  Singh, 269 A.D.2d at 382, 702 N.Y.S.2d 628), and plaintiffs raised a triable issue of fact with respect to that claim in any event (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 We conclude, however, that the court erred in denying that part of defendants' motion for summary judgment dismissing the complaint, as amplified by the bill of particulars, with respect to the claim of premises liability.   By that claim, plaintiffs allege that there was a defect in the premises in general or in the tree in particular.   It is well established, however, that “[a] landowner will not be held liable for injuries arising from conditions on the property that are inherent to the nature of the land and could be reasonably anticipated by those using it” (Mazzola v. Mazzola, 16 A.D.3d 629, 630, 793 N.Y.S.2d 59;  see Stanton v. Town of Oyster Bay, 2 A.D.3d 835, 836, 769 N.Y.S.2d 383, lv. denied 3 N.Y.3d 604, 784 N.Y.S.2d 7, 817 N.E.2d 825;  see also Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923, 925, 767 N.Y.S.2d 44).   Here, defendants established as a matter of law that the alleged defect was inherent to the nature of the premises and was known to plaintiffs' child (see Mazzola, 16 A.D.3d at 630, 793 N.Y.S.2d 59;  Dawson v. Cafiero, 292 A.D.2d 488, 739 N.Y.S.2d 190, lv. denied 98 N.Y.2d 610, 749 N.Y.S.2d 1, 778 N.E.2d 552), and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   We modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the complaint, as amplified by the bill of particulars, with respect to the claim of premises liability and as modified the order is affirmed without costs.

MEMORANDUM: