Bautista v. New York City Dept. of Educ.

Bautista v New York City Dept. of Educ. (2019 NY Slip Op 02641)

Bautista v New York City Dept. of Educ.

2019 NY Slip Op 02641

Decided on April 4, 2019

Appellate Division, First 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 April 4, 2019
Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.

8920 301094/13

[*1]Maria Bautista, Plaintiff-Appellant,

v

New York City Department of Education, et al., Defendants-Respondents.

Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (D. Alan Rosinus, Jr. of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about May 15, 2017, which, to the extent appealed from as limited by the briefs, granted the motion of defendant New York City Department of Education (DOE) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff kindergarten teacher was injured when, while walking in her classroom, she slipped and fell on a piece of squash that a student had dropped on the floor. In opposition to DOE's prima facie showing that it neither created the condition nor had notice of the squash, plaintiff failed to raise a triable issue of fact. Nor was a triable issue of fact raised as to whether there existed a recurring condition because there was no evidence that DOE routinely failed to address food being left on the floor by the children (see Harrison v New York City Tr. Auth., 94 AD3d 512, 514 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 4, 2019

CLERK