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Bumpher v. County of Westchester

Appellate Division of the Supreme Court of New York, Second Department
Dec 23, 2002
300 A.D.2d 525 (N.Y. App. Div. 2002)

Opinion

2002-01507

December 2, 2002.

December 23, 2002.

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.

Ofshtein Ross, P.C., Brooklyn, N.Y. (Valeria Deyeso-Calloway of counsel), for appellant.

Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G. Gardiner of counsel), for respondent.

Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, STEPHEN G. CRANE, WILLIAM F. MASTRO, JJ.


DECISION ORDER

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 N.Y. 20, 24; Maher v. Madison Square Garden Corp., 242 N.Y. 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 N.Y.2d 320, 324; cf. Duong v. City Univ. of New York, 150 A.D.2d 349). Thus, notwithstanding the plaintiff's lesser degree of proof in this wrongful death action (see Johnson v. Sniffen, 265 A.D.2d 304), the defendant's motion for summary judgment was properly granted.

RITTER, J.P., GOLDSTEIN, CRANE and MASTRO, JJ., concur.


Summaries of

Bumpher v. County of Westchester

Appellate Division of the Supreme Court of New York, Second Department
Dec 23, 2002
300 A.D.2d 525 (N.Y. App. Div. 2002)
Case details for

Bumpher v. County of Westchester

Case Details

Full title:DEBORAH BUMPHER, ETC., appellant, v. COUNTY OF WESTCHESTER, respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 23, 2002

Citations

300 A.D.2d 525 (N.Y. App. Div. 2002)
742 N.Y.S.2d 559

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