Sarnes v City of New York

[*1] Sarnes v City of New York 2009 NY Slip Op 50560(U) [23 Misc 3d 1103(A)] Decided on March 30, 2009 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 30, 2009
Supreme Court, Richmond County

Christopher Sarnes, an Infant by his Father and Natural Guardian, MARK SARNES, and MARK SARNES, Individually, Plaintiffs,

against

The City of New York, NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, BARNEY SKANSKA, INC., SKANSKA USA BUILDING, INC., LIBERTY ARCHITECTURAL PRODUCTS CO., INC. and CORINTHIAN CONSTRUCTION CO., INC., Defendants.



102774/05

Thomas P. Aliotta, J.

Defendants' motion for summary judgment dismissing the complaint is granted.

The City of New York, the New York City Department of Education, the New York City School Construction Authority, Barney Skanska, Inc., Skanska USA Buildings, Inc., Liberty Architectural Products Co., Inc. and Corinthian Construction Co, Inc. (hereafter collectively "defendants") move by notice of motion for an order pursuant to CPLR 3212 granting them summary judgment and dismissing the complaint. Plaintiffs Christopher Sarnes, an infant, by his father and natural guardian, Mark Sarnes, and Mark Sarnes, individually oppose the motion.

This action arises from plaintiff's fall from a cross bar comprising a part of a scaffold located at or near Intermediate School 34 in Tottenville on Staten Island, in which he sustained personal injury [FN1]. At the time in question plaintiff, a seventh-grader, was 12 years old. The accident occurred in the schoolyard during the luncheon recess on September 22, 2004. Plaintiffs commenced this action on or about September 20, 2005, by the filing and service of a summons with complaint. Issue was joined by the service of answers on or about October 7, 2005 [FN2]. [*2]

In support of their joint motion, defendants have submitted copies of the pleadings and excerpts from the deposition testimony of (1) the infant-plaintiff; (2) Jerilyn Paradiso (a school aide at I.S. 34 on the date of the accident); (3) Dimitrius Spanos (Vice President of Liberty Architectural Products, Inc.), in an attempt to demonstrate that no triable issues of fact exist as to liability. According to the moving defendants, "by utilizing the sidewalk shed/scaffolding as a chinning bar despite warnings not to play on the bar, plaintiff assumed the risk of a possible fall". In addition, it is claimed that the school district's duty to provide adequate supervision within the schoolyard was satisfied by the admonition that students remain away from, e.g., the scaffolding.

In opposition, plaintiffs have submitted select portions of the deposition testimony of the infant-plaintiff, Dimitrius Spanos, Mohamed Azzat (a project officer at the job site) and Jeoffrey Morgan (a job superintendent with Skanska USA Building, Inc.). Based upon these submissions, plaintiffs contend that triable issues of fact exist as to (1) the applicability, on these facts, of the doctrine of primary assumption of risk and (2) whether the playground where the accident occurred was properly supervised and secured.

According to his deposition testimony, the infant claims that while he was doing "chin-ups" on a cross bar supporting one of the sidewalk sheds, he was bumped from behind by another student and fell to the ground. Purportedly as a result of this fall, plaintiff sustained a broken left arm. Plaintiff admitted that he was familiar with the area, and had previously done "chin-ups" using the same support bar. He also admitted that he was familiar with the warnings to stay clear of the scaffolding by the dean of the school (Bruce Lefier) and unidentified school aides. According to the witness, a school aide, Ms. Paradiso, was on the other side of the school yard when the accident occurred.

To the extent relevant, Ms. Paradiso (still a school aide at I.S. 34 at the time of her deposition), testified that both she and the dean were outside monitoring the children on the date of plaintiff's accident. She also testified that the students were reminded by the dean on a daily basis to stay away from the scaffolding. According to the witness, warning tape had been wrapped around the perimeter of the scaffolding informing passerbys not to enter or touch. Although she did not witness plaintiff's accident, Ms. Paradiso stated that whenever she saw one of the students playing on the scaffold, she would admonish him or her to stop and would administer "a time out".

Mohamed Azzat testified that after finding unsafe cracks in the exterior walls at I.S. 34, an emergency contractor (one of the Skanska companies) was called in to set up sidewalk bridging and scaffolding to protect persons entering and exiting the building from any debris that might fall during renovations. In turn, Skanska [FN3] hired defendant Liberty Architectural Products Co, Inc. (hereafter "Liberty") to install sidewalk bridging. According to the witness, the bridging was protected by yellow caution tape and red netting in order to alert pedestrians of the potential danger. [*3]

Jeoffrey Morgan, an employee of Skanska USA Buildings, Inc., testified that he represented Skanska at a meeting with the other defendants held in January of 2004 with the aim of quickly getting the sidewalk bridging in place "to safe off the [danger] area" at I.S. 34. Liberty, a subcontractor, completed the installation in approximately ten working days.

It is well established that a Board of Education has a duty to supervise playgrounds maintained on school property when utilized by its students during recess (see Miller v Board of Education, 291 NY 25; Selleck v Board of Education, 276 App Div 263). However, these Boards are not insurers of a student's safety, as they cannot reasonably be expected to continuously supervise and control all of the students movements and activities at all times (Rose v Onteora Cent. School Dist., 52 AD3d 1161). Thus, the extent of required supervision need not be constant, but adequate and where negligence is asserted in the breach of that duty there must be a careful examination of the level of supervision in terms of the time, place and circumstances of the event (see Caldwell v Village of Is. Park, 306 NY 268, 274).

It also has been held that the Board's duty of care is negated where an injured party has assumed the risk of engaging in the activity which precipitated his or her accident (see Turcotte v Fall, 68 NY2d 432, 438-439; Roberts v Boy & Girls Republic, Inc., 51 AD3d 246; affd 10 NY3d 889; Sy v Kopet, 18 AD3d 463, 463-464; but see Trupia v Lake George Cent. School Dist., ___ AD3d ___ [3d Dept 2009] [doctrine of primary assumption of risk applied only to injuries sustained while voluntarily participating in a sporting or entertainment activity]). However, in all events, the extent of the risk assumed has been found to vary with the injured party's awareness of the risk, which must, in turn, be measured against the background, skill and experience of that individual (Benitez v New York City Bd. Of Educ., 73 NY2d 650, 657; see Williams v Clinton Cent School Dist., ___ AD3d ___, 2009 NY Slip Op 742).

With these criteria in mind, the Court concludes that the infant-plaintiff assumed the risk of falling inherent in doing chin-ups on the bar in question. Not only was he sufficiently familiar with the area and activity to appreciate the risk involved, but he admitted that school officials had repeatedly warned students not to play on the scaffolding (see Schuyler v Board of Educ. of Union Free School Dist. No. 7, 18 AD2d 406, affd 15 NY2d 746). Moreover, the child admitted that he only fell after being bumped from behind by an unidentified third person. Where an injury is caused by another student, a plaintiff must establish that the school authorities could reasonably have anticipated the acts of the third party in order to impose liability for the accident (see Paca v City of New York, 51 AD3d 991). No such evidence has been presented [FN4].

In conclusion, defendants have demonstrated their prima facie entitlement to judgment as a matter of law by establishing through, e.g., the infant-plaintiff's deposition testimony, that (1) he ignored the warnings and assumed the risks inherent in the activity resulting in his injury, and (2) the accident was caused by the acts of an unidentified fellow student whose conduct could not [*4]reasonably have been anticipated. In opposition, plaintiffs have failed to raise a triable issue of fact [FN5].

Accordingly, it is

ORDERED that the motion for summary judgment is granted and the complaint dismissed; and it is further

ORDERED that the Clerk of the Court mark his records accordingly.

E N T E R,

_/s/_____________________

Thomas P. Aliotta,J.S.C.

Dated: March 30, 2009 Footnotes

Footnote 1:While plaintiffs refer to a fall from scaffolding in their complaint, the structures located on the grounds at I.S. 34 were actually sidewalk sheds designed to catch potential falling debris during the renovations.

Footnote 2:The Court notes that while the City of New York originally submitted an answer on its own behalf, defendant School Construction Authority has assumed the defense of this action and the City has withdrawn its answer.

Footnote 3:It is not clear which Skanska entity was hired to do the emergency work.

Footnote 4:Nor is there any evidence that the scaffolding and/or sidewalk sheds were negligently constructed, maintained or inadequately secured.

Footnote 5:In view of the dismissal of the complaint, any cross claims for contribution and/or indemnification as between the codefendants have been rendered academic.