                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 7, 2016                      522172
________________________________

MEGAN ELBADWI, an Infant, by
   REBECCA S. GREEN, Her Parent
   and Guardian,
                    Respondent-
                    Appellant,
      v                                     MEMORANDUM AND ORDER

SAUGERTIES CENTRAL SCHOOL
   DISTRICT,
                    Appellant-
                    Respondent.
________________________________


Calendar Date:   May 23, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


      Mills Law Firm LLP, Clifton Park (Christopher K. Mills of
counsel), for appellant-respondent.

      Basch & Keegan, LLP, Kingston (John A. DeGasperis of
counsel), for respondent-appellant.

                             __________


Egan Jr., J.

      Cross appeal from an order of the Supreme Court (Fisher,
J.), entered September 23, 2015 in Ulster County, which partially
denied defendant's motion for summary judgment dismissing the
complaint.

      At all times relevant, plaintiff was a 10-year-old student
attending Cahill Elementary School in Ulster County. On the
morning of December 13, 2012, plaintiff's class gathered in the
school's cafeteria for recess before lunch. According to
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defendant's lunch monitor, plaintiff and her classmates were
expressly instructed to remain on the blacktop area adjacent to
the school's playground and not to venture onto the playground
itself – as the rubberized surface of the playground was icy and
the equipment was covered with snow. Less than one minute after
exiting the school for the scheduled outdoor recess, plaintiff,
in an effort to avoid a collision with a fellow classmate, jumped
onto a double slide located on the playground, slipped, fell and
fractured her upper left arm.

      Plaintiff thereafter commenced this negligence action
against defendant. As amplified by her bill of particulars,
plaintiff alleged that defendant was negligent in supervising its
students and, further, in failing to maintain its property in a
reasonably safe condition. Following joinder of issue and
discovery, defendant moved for summary judgment dismissing the
complaint. Supreme Court granted defendant's motion as to the
negligent supervision claim, but denied the motion as to the
premises liability claim – finding a question of fact as to
whether defendant had maintained the playground in a reasonably
safe condition. The parties cross-appeal.

      Contrary to plaintiff's assertion, Supreme Court properly
granted defendant's motion for summary judgment dismissing the
negligent supervision claim. To be sure, "[s]chools are under a
duty to adequately supervise the students in their charge and
they will be held liable for foreseeable injuries proximately
related to the absence of adequate supervision" (Conklin v
Saugerties Cent. Sch. Dist., 106 AD3d 1424, 1425 [2013] [internal
quotation marks and citations omitted]; accord LaValley v
Northeastern Clinton Cent. Sch. Dist., 130 AD3d 1276, 1276
[2015]). The case law makes clear, however, that schools are not
insurers of their students' safety (see Lewis v Board of Educ. of
the Lansingburgh Cent. Sch. Dist., 137 AD3d 1521, 1522 [2016];
Conklin v Saugerties Cent. Sch. Dist., 106 AD3d at 1425); rather,
schools need only "exercise the same degree of care as would a
reasonably prudent parent placed in comparable circumstances"
(Lewis v Board of Educ. of the Lansingburgh Cent. Sch. Dist., 137
AD3d at 1522 [internal quotation marks and citation omitted]; see
Hofmann v Coxsackie-Athens Cent. School Dist., 70 AD3d 1116, 1117
[2010]; Wagner v Oneonta School Dist., 68 AD3d 1516, 1516-1517
                              -3-                522172

[2009]). Where, as here, the underlying accident "occurs in so
short a span of time that even the most intense supervision could
not have prevented it, lack of supervision is not the proximate
[cause] of the injury and summary judgment in favor of the school
defendant is warranted" (Lopez v Freeport Union Free School
Dist., 288 AD2d 355, 356 [2001] [internal quotation marks,
brackets and citations omitted]; see Doyle v Binghamton City
School Dist., 60 AD3d 1127, 1128 [2009]; Bellinger v Ballston Spa
Cent. School Dist., 57 AD3d 1296, 1297-1298 [2008], lvs denied 12
NY3d 704, 878 [2009]; Ronan v School Dist. of City of New
Rochelle, 35 AD3d 429, 430 [2006]; Siegell v Herricks Union Free
School Dist., 7 AD3d 607, 609 [2004]).

      Here, defendant's expert, an administrator with 25 years of
experience in primary school education, opined that defendant's
student-to-monitor ratio was more than adequate for purposes of
supervising the children during recess and, further, that the
lunch monitor otherwise provided reasonable and adequate
supervision on the day in question. Even assuming, however, that
the record as a whole was sufficient to raise a question of fact
on this point, summary judgment dismissing the negligent
supervision claim nonetheless was appropriate, as plaintiff's own
testimony demonstrates that the alleged lack of supervision was
not the proximate cause of her injuries. According to plaintiff,
as soon as the school doors opened, she and two of her friends
ran outside in the general direction of the playground. While
running on the blacktop area adjacent to the playground,
plaintiff's friends veered off toward an area where the students
could play kickball. Plaintiff apparently continued toward the
playground and, when one of her friends called her name,
plaintiff looked away from her direction of travel. At this
point, plaintiff, who by her own admission "wasn't paying
attention," nearly collided with another classmate – prompting
plaintiff to "r[u]n around [her classmate] so that . . . [she]
didn't bump into him and fall down." Plaintiff then realized
that she was about to trip over the end of a double slide located
on the playground; to avoid tripping, plaintiff followed her
"quick instinct" and "jumped up on the bottom of the slide,"
whereupon she slipped on the snowy and icy surface, fell and
broke her arm. By her own estimate, plaintiff's fall occurred
approximately 45 seconds after she exited the school building.
                              -4-                522172

In light of plaintiff's testimony as to the manner and time span
in which her accident occurred, we are of the view that "no
amount of supervision" could have prevented plaintiff's accident
and resulting injuries (Spaulding v Chenango Val. Cent. School
Dist., 68 AD3d 1227, 1229 [2009], lv denied 14 NY3d 707 [2010];
see Ronan v School Dist. of City of New Rochelle, 35 AD3d at
430). Accordingly, defendant was entitled to summary judgment
dismissing the negligent supervision claim.1

      We reach a similar conclusion with regard to plaintiff's
premises liability claim. To prevail on its motion for summary
judgment, defendant was required to "establish as a matter of law
that it maintained the [playground] in question in a reasonably
safe condition and that it neither created the allegedly
dangerous condition existing thereon nor had actual or
constructive notice thereof" (Reid v Schalmont School Dist., 50
AD3d 1323, 1324 [2008] [internal quotation marks, brackets and
citations omitted]; accord Gerfin v North Colonie Cent. School
Dist., 41 AD3d 1085, 1086 [2007]). To that end, defendant
tendered, among other things, an affidavit from its expert,
wherein the expert opined that the subject playground "was
maintained in an appropriate condition." Specifically,
defendant's expert stated that it was entirely permissible "to
allow children to play outside on the snow as long as [they had]
appropriate footwear" and that it was "well within the standard


    1
        Plaintiff also contends that she was not provided with
adequate instructions on the day of her accident – specifically,
a directive to stay off of the playground equipment. As noted
previously, the lunch monitor testified that she was absolutely
certain that she told the children – including plaintiff – that
they were to remain on the blacktop and were not allowed to
venture onto the playground itself. In her affidavit in
opposition, plaintiff acknowledged that the monitor "gave . . .
some instructions," but she could not recall the precise nature
of those instructions. Although plaintiff primarily raises this
issue in the context of her premises liability claim (see infra),
we are of the view that this argument is part and parcel of
plaintiff's negligent supervision claim, which, as already
discussed, fails for lack of causation.
                              -5-                522172

of care" for defendant to allow such activity – noting that
"[c]hildren are allowed to play in the snow at nearly every
elementary school in this area." More to the point, defendant's
expert opined that there was "no requirement or obligation for
[defendant] to clean snow and ice off of the playground surface"
– a task that would have been "nearly impossible" due to the
rubberized surface material. With respect to the playground
equipment itself, defendant's expert concluded that, inasmuch as
plaintiff and her classmates were instructed not to use such
equipment, defendant was not required to clear the equipment of
snow and ice.2 Such proof was, in our view, sufficient to
discharge defendant's initial burden on its motion for summary
judgment.

      As to the sufficiency of plaintiff's proof in opposition,
plaintiff did not provide a competing expert affidavit or
otherwise tender sufficient admissible proof to raise a question
of fact as to defendant's snow removal obligations – or the
adequacy of its efforts – relative to the playground itself.
Rather, both in response to defendant's motion and in her brief
on appeal, plaintiff has offered nothing more than her
unsubstantiated assertion that defendant was required to remove
all snow and ice from its playground. To the extent that the
equipment located on the playground may be viewed as an
independent component of plaintiff's premises liability claim, we
nonetheless are persuaded that such claim should be dismissed.
Even assuming, without deciding, that plaintiff and her
classmates were not told to stay off of the playground equipment
on the day in question, thereby calling into question the
validity of the opinion offered by defendant's expert as to the
need to clear such equipment of snow and ice in the first
instance, the fact remains that plaintiff's accident was – by her
own admission – the result of her inattentiveness while "running
around with [her] friends" during recess. That inattentiveness,
in turn, resulted in a near collision with another student who,


    2
        As noted previously, defendant's lunch monitor testified
that she was 100% sure that she told the children – including
plaintiff – that they were to remain on the blacktop and were not
allowed to venture onto the playground.
                              -6-                  522172

according to plaintiff, "ran in front of [her]"; in response,
plaintiff elected to jump onto the base of the double slide in
order to avoid the collision – despite observing snow on portions
of the playground and "some snow up by the top of the slides."
Under these circumstances, plaintiff's premises liability claim
cannot stand, and Supreme Court should have granted defendant's
motion for summary judgment dismissing the complaint in its
entirety.

     Garry, J.P., Lynch, Devine and Mulvey, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied defendant's motion
for summary judgment dismissing plaintiff's premises liability
claim; motion granted in its entirety and complaint dismissed;
and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
