Cohen v City of New York

Cohen v City of New York 2014 NY Slip Op 05296 Decided on July 16, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 16, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
JOHN M. LEVENTHAL
PLUMMER E. LOTT
SHERI S. ROMAN, JJ.
2013-00273
(Index No. 25384/11)

[*1]Janis Cohen, appellant,

v

City of New York, respondent.

Newman, O'Malley & Epstein, LLC, New York, N.Y. (Lawrence Epstein of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Diana Lawless of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), dated November 13, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant, the City of New York, established its prima facie entitlement to judgment as a matter of law dismissing the complaint in this action arising from a slip-and-fall accident by showing that the accident occurred on public school premises, and that it does not operate, maintain, or control the public schools (see Miner v City of New York, 78 AD3d 669, 670; Indar v City of New York, 71 AD3d 635; Leacock v City of New York, 61 AD3d 827), which are within "the exclusive care, custody and control of the [New York City] Board of Education, an entity separate and distinct from the City" (Bleiberg v City of New York, 43 AD3d 969, 971; see NY City Charter § 521; Education Law §§ 2554[4]; 2590-b[1][a]; McClain v City of New York, 65 AD3d 1020; Myers v City of New York, 64 AD3d 546; Leacock v City of New York, 61 AD3d at 827; Corzino v City of New York, 56 AD3d 370; Perez v City of New York, 41 AD3d 378). In opposition, the plaintiff failed to raise a triable issue of fact (cf. Bleiberg v City of New York, 43 AD3d 969). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment, since it cannot be held liable for the negligent maintenance of school property (see Leacock v City of New York, 61 AD3d at 827; Goldes v City of New York, 19 AD3d 448, 449; Goldman v City of New York, 287 AD2d 689, 689-690).

ENG, P.J., LEVENTHAL, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court