Christopher James Arceri, etc., et al., respondents, v. Smithtown Central School District, appellant.

Reset A A Font size: Print

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

Christopher James Arceri, etc., et al., respondents, v. Smithtown Central School District, appellant.

2010–04940 (Index No. 19640/08)

Decided: March 29, 2011

MARK C. DILLON, J.P. JOHN M. LEVENTHAL CHERYL E. CHAMBERS LEONARD B. AUSTIN, JJ. Ahmuty Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick and Louisa Chan of counsel), for appellant. Siben & Ferber, Hauppauge, N.Y. (Steven B. Ferber of counsel), for respondents.

Argued—March 3, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Tannenbaum, J.), dated April 20, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.   The defendant failed to establish, prima facie, that the infant plaintiff was engaged in age-appropriate activity at the time of the accident (cf.  Troiani v White Plains City School Dist., 64 AD3d 701;  Newman v Oceanside Union Free School Dist., 23 AD3d 631), that he was adequately supervised (see Ferrill v Board of Educ. of Cent. School Dist. No. 1, 6 A.D.2d 690), and that it maintained the playground in a reasonably safe condition (see generally Miller v Kings Park Cent. School Dist., 54 AD3d 314;  Botti v Seaford Harbor Elementary School Dist. 6, 24 AD3d 486).   Since the defendant failed to satisfy its initial burden of proof, it is unnecessary to analyze the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851).

DILLON, J.P., LEVENTHAL, CHAMBERS and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

Copied to clipboard