Bumpher v. County of Westchester

300 A.D.2d 525, 752 N.Y.S.2d 559

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 2002
• Status: Published

Opinion

—In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered December 19, 2001, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action, inter alia, to recover damages for wrongful death after her daughter drowned while swimming at a park operated by the defendant. The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint. We affirm.

In support of its motion, the defendant demonstrated a prima facie entitlement to judgment as a matter of law by proffering evidence that it discharged the duty of general supervision owed the decedent by providing an experienced and competent lifeguard (see Curcio v City of New York, 275 NY 20, 24; Maher v Madison Sq. Garden Corp., 242 NY 506; Maull v State of New York, 16 Misc 2d 499). In opposition to such a prima facie demonstration, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; cf. Duong v City Univ. of N.Y., 150 AD2d 349). Thus, notwithstanding the plaintiff’s lesser degree of proof in this wrongful death action (see Johnson v Sniffen, 265 AD2d 304), the defendant’s motion for summary judgment was properly granted. Ritter, J.P., Goldstein, Crane and Mastro, JJ., concur.