Rivera v. Westbury Union Free School District, 2009 NY Slip Op 30774(U) (N.Y. Sup. Ct. 3/31/2009), 019963/06.
| Decision Date | 31 March 2009 |
| Docket Number | 019963/06.,Motion Sequence No. 001. |
| Citation | 2009 NY Slip Op 30774 |
| Parties | JUANA RIVERA, an infant under the age of 16 years, by her Mother and Natural Guardian SANDRA ROQUE and SANDRA ROQUE Individually, Plaintiffs, v. WESTBURY UNION FREE SCHOOL DISTRICT and BOARD OF EDUCATION OF THE WESTBURY UNION FREE SCHOOL DISTRICT, Defendants. |
| Court | New York Supreme Court |
The defendant Westbury Free School District moves for summary judgment in this personal injury action. The plaintiffs oppose the motion. The underlying action arises from a June 16, 2006 incident during the infant plaintiffs kindergarten recess period. The claim allegedly develops from the infant plaintiff playing hide `n seek with several classmates on the playground equipment at the Dryden Street School, where the plaintiff was injured as the plaintiff attempted to step down from the playground equipment platform, and her arm got caught in the adjacent railing. The plaintiffs contend this defendant was negligent when it failed to properly maintain, operate, and control the playground. The plaintiffs maintain the students were non properly supervised, and they were not provided with a safe playground set, while this defendant contends it was not negligent since the infant plaintiff and her classmates were supervised by three aides on the playground. The defense maintains the defendant installed state of the art playground equipment just four years earlier after receiving a playground grant, and the installation was approved by the New York State Education Department, Bureau of Facilities Planning Service. This Court has carefully reviewed and considered all of the papers submitted with respect to this motion.
Under CPLR 3212(b), a motion for summary judgment "The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325; Andre v. Pomeroy, 35 N.Y.2d 361). Summary judgment is the procedural equivalent of a trial (Museums at Stony Brook v Village of Patchogue Fire Dept., 146 A.D. 2d 572). Thus the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc., 182 A.D. 2d 446). The court's role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395; Gervasio v. Di Napoli, 134 A.D.2d 235, 236; Assing v. United Rubber Supply Co., 126 A.D.2d 590). Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" (Gervasio v. DiNapoli, supra, 134 A.D.2d at 236, quoting from Assing v. United Rubber Supply Co., supra; see, Columbus Trust Co. v. Campolo, 110 A.D.2d 616, aff'd 66 N.Y.2d 701). If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided (see, Andre v. Pomeroy, 35 N.Y.2d at 364; Assing v. United Rubber Supply Co., supra).
The defense attorney points, in a supporting affirmation dated September 22, 2008, to the October 10, 2006 deposition testimony of the injured infant plaintiff, photograph of the playground equipment, the January 14, 2008 deposition testimony of Michael Batkiewicz, the defendant's Director of School Facilities and Operations, who supervises all custodians, cleaners, security, maintenance and ground keepers, and is responsible for the physical plant and any construction done within the defendant school district, the May 9, 2008 deposition testimony of Dellarie Taylor, a teacher's aid at the Dryden Street School, and the May 9, 2008 deposition testimony of Sarwat Malik, a bus monitor and teacher's aid at the Dryden Street School. The defense attorney notes Batkiewicz never received any complaints about the playground equipment, and the other depositions describe the circumstances about the incident. The defense attorney asserts the defendant neither manufactured, designed nor installed the subject equipment, and, absents anything in disrepair, the defendant had no responsibility for the configuration and setup of the equipment.
The plaintiffs' attorney points, in an opposing affirmation dated November 7, 2008, to an affidavit dated October 24, 2008, by William Marietta, the plaintiffs' expert for playground safety. Marietta states, in some length and detail, it is his professional opinion, with a reasonable degree of certainty as a certified safety professional, defects and hazards in design including inappropriateness of the equipment design for children of this age group, lack of safety handrails and flexing of the pole supports permitting movement of the Bongo step surface when stepped on, caused and represent the proximate causes of this accident. The plaintiffs' attorney also points to photographs of the playground equipment, the October 12, 2006 deposition testimony of the injured infant plaintiff, and other deposition testimony. The plaintiffs' attorney maintains the defendant had responsibility for the design of the playground equipment since staff was involved in its planning and design. The plaintiffs' attorney opines the playground is in violation of the Handbook for Public Playground Safety, and the defense failed to submit proof New York State provided detailed plans containing measurements or ensured compliance with manufacturing, design and installation requirements. The plaintiffs' attorney challenges the legal authority offered by the defense with respect to playground equipment installation. The plaintiffs' attorney asserts the defendant participated in the design of the set, maintained it, and supervised the infant plaintiffs use of it. The plaintiffs' attorney avers the defendant knew the ages of the students using the equipment; there were no handrails; the height of the elevated section from which the infant plaintiff descended; the heights of the standers (Bongo steps); and some of the children had difficulty going up and down the steps. The plaintiffs' attorney contends the defense failed to establish entitlement to summary judgment.
The defense attorney reiterates in detail, in a reply affirmation dated January 6, 2009, there are no triable issues of fact regarding any negligence by this defendant which proximately resulted in an injury to the infant plaintiff. The defense attorney points out The Spector Group designed the playground equipment which was manufactured by Mercal Recreation Company, and installed by Playsafe Playground of New York, and no employees of the defendant were involved in the installation. The defense attorney notes Playsafe Playground of New York determined, as testified to by Batkiewicz, the spacing for the openings in the railings for the blue platform, and the heights for the platform and Bongo steps were determined by the manufacturer and the architect. The defense attorney submits the plaintiffs failed to come forth with any evidence the playground design was unsafe, and points out Marietta's credentials reveal his experience has been primarily in trip, slip and fall hazards, not playground safety, design nor installation with respect to children in an elementary school setting. The defense attorney opines Marietta's and plaintiff counsel's references to the Consumer Products Safety Commission Handbook for Playground Safety Publication # 325 are misplaced as support for their allegations regarding safety as it relates to this playground equipment because those standards are not mandatory, but merely suggested guidelines. The defense attorney avers Marietta's conclusions reached by playground measurements are unsupported regarding the Bongo step as a dangerous or hazardous design defect, and he failed to point to any standard for his position the height of the platform surface is excessive. The defense attorney maintains, even assuming Marietta's playground measurements are correct, there is nothing to suggest the riser height of the platform surface is excessive, and notes when the playground was installed in 2001 or 2002, there were no standards for Bongo steps, and the ASTM 1487 Standard 8.15 requirements for such was adopted in 2005. The defense attorney opines the infant plaintiff attempted, as shown in a defense photograph, to move through the opening in the railing, grasp the adjacent railing as stepping onto the Bongo step, but her hand and arm inadvertently went through the railing, so the plaintiffs' contention an additional railing would have prevented the accident fails to appreciate the mechanics of what occurred. The defense attorney disagrees with the plaintiff expert's opinion the playground equipment was not school age appropriate because the expert failed to support that conclusion, rather plaintiffs' counsel quoted the CPSC Handbook Sections 10.0 and 6.3 to suggest the infant plaintiff should be considered preschool age, rather than five years old in 2006. The defense attorney claims, with regard to the claim of negligent supervision of the infant plaintiff, the defendant is not an insurer of safety, and does not have any obligation to provide constant supervision of children. The defense attorney notes the infant plaintiff specifically testified, at the time of the accident, one of the aides, Ms. Martinez, was right next to her when it happened, and the defense attorney points out three school aides supervised, in and around the playground equipment, the infant plain...
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