AWAD v. CITY OF NEW YORK

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

Salwa AWAD, et al., Appellants, v. CITY OF NEW YORK, et al., Respondents.

Decided: December 26, 2000

CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and ROBERT W. SCHMIDT, JJ. Barton Barton & Plotkin, LLP, New York, N.Y. (Jason M. Bernheimer of counsel), for appellants. Michael D. Hess, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and A. Orli Spanier of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated February 16, 2000, which denied their motion pursuant to CPLR 3126 to strike the defendants' answer and granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant City of New York.

ORDERED that the order is affirmed, with costs.

The plaintiff Salwa Awad was allegedly injured when she slipped and fell on debris which had dropped from a tray onto the cafeteria floor of McKinley Junior High School in Brooklyn.   She and her husband commenced this action against the City of New York and the New York City Board of Education.

The Supreme Court properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the City of New York. After the City made out a prima facie case for summary judgment, the plaintiffs failed to raise a triable issue of fact (see, CPLR 3212[b]) as to whether the accident was the result of negligence on the part of the City. Pursuant to Education Law § 2554(4) the care, custody, control, and safekeeping of all school property is the responsibility of the New York City Board of Education, which is a separate and distinct entity from the City (see, Campbell v. City of New York, 203 A.D.2d 504, 611 N.Y.S.2d 248).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.

Copied to clipboard