Osorio v City of New York

Osorio v City of New York 2007 NY Slip Op 08012 [44 AD3d 553] October 25, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Brittany Osorio, an Infant, by Her Mother and Natural Guardian, Kim Osorio et al., Appellants,
v
City of New York, Respondent, et al., Defendants.

—[*1] Napoli Bern Ripka, LLP, New York City (Denise A. Rubin of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York City (Norman Corenthal of counsel), for respondent.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about September 1, 2006, which granted defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Defendant made a prima facie case of entitlement to summary judgment by establishing that it had no notice of prior sexual assaults at the subject pool before the alleged sexual assaults were perpetrated upon infant plaintiffs, and that the assaults were not foreseeable (see Maheshwari v City of New York, 2 NY3d 288 [2004]). Defendant also demonstrated that it took reasonable measures to oversee the pool activities and maintain the pool in a safe condition (see Florman v City of New York, 293 AD2d 120, 127 [2002]). In response, plaintiffs pointed to no prior incidents that would have alerted defendant to the forseeability of the sexual assaults (see Michele M. v Board of Educ. of City of N.Y., 3 AD3d 370, 372 [2004]), and otherwise failed to raise a triable issue of fact regarding whether the pool staff failed to quickly and effectively remove the perpetrator from the pool after being notified of the initial sexual assault. Concur—Tom, J.P., Nardelli, Sweeny and Catterson, JJ.