ADRIANA v. KIPP WASHINGTON HEIGHTS MIDDLE SCHOOL (2018)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered August 18, 2017, which, inter alia, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Infant plaintiff, a student at defendant charter school, which is operated by defendants, sustained injuries that resulted in her right ring finger being amputated after it became caught in a playground fence during recess on property that is owned by nonparty City of New York and maintained by nonparty New York City Department of Education.

Defendants failed to demonstrate their entitlement to summary judgment as they have failed to show that they did not have a common-law duty to maintain the fence in a reasonably safe condition.  “Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises” (see Gibbs v. Port Auth. of N.Y., 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 [1st Dept. 2005] ).  Although there is no evidence that defendants' special use of the playground caused a chain link in the fence to become sharp, the record suggests that defendants' employees were in possession of, occupied, and controlled access to the playground where the fence is located when the accident occurred (see Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 855, 931 N.Y.S.2d 336 [2d Dept. 2011] ).  Additionally, defendants failed to provide a lease agreement establishing that they did not have a duty to maintain the playground fence which, they allege, was in a common area and not part of their demised premises (cf. Vivas v. VNO Bruckner Plaza LLC, 113 A.D.3d 401, 402, 978 N.Y.S.2d 150 [1st Dept. 2014] ).  It is irrelevant that other schools also occupied the premises and were also allowed to use the playground (seeWilliams v. Esor Realty Co., 117 A.D.3d 480, 985 N.Y.S.2d 505 [1st Dept. 2014] ).

Furthermore, defendants failed to show that the accident location was in a reasonably safe condition when the accident happened.  Defendants submitted an expert professional engineer's affidavit averring that the fence was in compliance with the New York City School Construction Authority's (NYCSCA) standards (see Schmidt v. One N.Y. Plaza Co. LLC, 153 A.D.3d 427, 428–429, 60 N.Y.S.3d 37 [1st Dept. 2017];  Griffith v. ETH NEP, L.P., 140 A.D.3d 451, 33 N.Y.S.3d 238 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209191 [2016] ).  However, plaintiffs raised a triable issue of fact because they submitted an expert affidavit from a certified playground safety inspector stating that the fence violated NYCSA's standards because her inspection revealed that it had sharp edges, and infant plaintiff's affidavit averring that the sharp edges on the top of the fence were present when the accident happened (see Berr v. Grant, 149 A.D.3d 536, 537, 52 N.Y.S.3d 352 [1st Dept. 2017];  Alvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312, 868 N.Y.S.2d 25 [1st Dept. 2008] ).