In this personal injury action, it is alleged that on March 2, 2005, at approximately 8:00 a.m., the infant plaintiff fell on a wet portion of the kitchen floor inside an annex at Public School 37, a school for special needs children in Staten Island, New York. According to plaintiff Patricia Tomao, her daughter, Tatiana, suffers from autism; has the mental capacity of a three year old, and suffers from physical limitations which affect her coordination and balance. At the time of the accident, the child was fifteen years of age. It is plaintiffs' contention that the area of "wetness" was an indirect product of the approximate seven-inch snowfall that had taken place between February 28, 2005 and the early morning hours of March 1, 2005.

In moving, inter alia, to dismiss the complaint, defendants rely, in part, on a copy of the "Occurrence Report" that was prepared by the New York City Department of Education, which states that "[d]uring morning arrival, student (Tatiana Tomao) walked into the kitchen area and when she turned around to exit the kitchen she slipped (her sneakers were wet) injuring her right ankle." This report was apparently based upon a written statement by the school's paraprofessional, Merari Carlo, a copy of which has also been submitted to the Court. In that report, Ms. Carlo states that she observed Tatiana walk into the kitchen towards a cabinet, saw her turn around, and then saw her slip and fall while attempting to leave, apparently due to "the [presence of] snow (water) under her sneakers." At her deposition, Ms. Carlo described the area of the kitchen where the infant fell as measuring two-feet by one-foot in size, and containing three or four puddles of "dirty water and slush". According to the witness, she did not observe any water on the kitchen floor prior to Tatiana's arrival, but was aware of additional water that had been tracked onto the floor after the accident on the shoes of others entering the room.

Defendants also rely upon the deposition testimony of the school's custodial engineer, Michael Ficht. This witness testified that (1) on March 1, 2005, he had removed snow from the entranceway of the building and the entire sidewalk running along the perimeter of the school; (2) on March 2, 2005, he spread salt along the curbside and on icy patches; and (3) he continued to mop-up any moisture that "people would track in." He further testified, as did his supervisor, Michael Ahrens, that a heavy-duty commercial mat approximately four feet by six feet in size was placed on the floor of the vestibule between the two sets of entrance doors, and that a second, larger commercial mat or "runner" of approximately eight feet by six feet in size was [*2]placed on the floor in the front lobby beyond the second set of doors. It is undisputed that there were no other mats beyond these areas, or on the vinyl floor of the kitchen where the infant-plaintiff fell.

In opposition, plaintiffs claim that defendants failed to take reasonable and appropriate remedial action under the circumstances to insure the safety of its special needs students. It is alleged that defendants breached this duty by negligently permitting autistic children to track snow and slush into the school, and that it was this act of omission which caused the infant plaintiff to fall. More particularly, plaintiffs claim that the special needs children were not assisted to clean their shoes before entering the school, and that they were incapable of doing so by themselves. Plaintiffs point out that although the students were greeted outside the entrance for the purpose of taking attendance, no one was assigned to keep the disabled students out of the snow, or escort them into the building. In addition, while commercial mats were apparently placed inside the entrance doors and in the front lobby, none were placed in the area beyond.

In support of these contentions, plaintiffs rely upon the deposition testimony of the infant's mother and coplaintiff, who testified that when she arrived at the school on the morning of the accident, she observed puddles of water on the floor of the kitchen where her daughter had fallen, as well as a trail of water on the tile floor between the lobby and the kitchen. On the issue of notice, plaintiffs argue that defendants' employees had to be aware that snow and slush was being tracked into the school prior to the infant plaintiff's fall.

It is well established that "[a] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (Rodriguez v White Plains Pub. Schools, 35 AD3d 704, 705, citing Perlongo v Park City 3 & 4 Apts, Inc., 31 AD3d 409; see also Gordon v American Museum of Natural History, 67 NY2d 836, 837).

Applying the foregoing principle, it is the opinion of this Court that defendants have made a prima facie showing of their entitlement to summary judgment (see Winegrad v New York Univ. Me. Ctr., 64 NY2d 851) by demonstrating both that they did not create the wet and slushy condition that allegedly caused the infant's injury, nor did they have actual or constructive notice thereof (see Rogers v Rockefeller Group International, Inc., 38 AD3d 747).

In opposition, plaintiffs have failed to raise a triable issue of fact. In the case at bar there is a total lack of evidence (1) that the alleged wet and slushy condition on the kitchen floor existed for any length of time prior to the infant's fall (see Murphy v Lawrence Towers apartments, LLC, 15 AD3d 371, 372; Ford v Citibank, N.A., Also Known as Citicorp, 11 AD3d 508, 509), (2) that prior complaints had been registered concerning the tracking of snow and slush into the school, or (3) that similar accidents had occurred in the past (see Rogers v Rockefeller Group Intl., 38 AD3d at 749-750; Solazzo v New York City Tr. Auth., 21 AD3d 735, 736 affd 6 NY3d 734; LoSquadro v Roman Catholic Archdiocese of Brooklyn, 253 AD2d 856, 857-858). A general awareness that water or slush may be tracked into school buildings during inclement weather is insufficient, standing alone, to establish constructive notice of the particular condition that may have caused a given student to fall (see Rogers v Rockefeller Group Intl., 38 AD3d at 750; Yearwood v Cushman & Wakefield, 294 AD2d 568,569). Critical in this regard is the failure to adduce any evidence of a recurring condition (cf. Fielding v Rachlin Mgt. Corp., 309 AD2d 894). As a practical matter, these defendants were "not obligated to cover all of [their] floors with mats or to continuously mop up all moisture resulting from tracked-in precipitation"(Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512; see Rogers v Rockefeller Group International, Inc., 38 AD3d at 749; Negron v St. Patrick's [*3]Nursing Home, 248 AD2d 687; Kovelsky v City Univ. of NY, 221 AD2d 234, 235). So demanding a standard of care is virtually unsustainable.

Similarly unavailing is plaintiffs' contention that defendants were negligent in permitting the autistic infant, inter alia, to enter the school without assistance in wiping her shoes.

In this regard, it is well settled that a school is in no position to insure the safety of its students, but "is obligated to exercise such care over [them as]...a parent of ordinary prudence would exercise under comparable circumstances" (David v City of New York, 40 AD3d 572, 573, internal quotation marks omitted). "Schools are under a duty to adequately supervise students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49). However, they "cannot reasonably be expected to continuously supervise and control all [of their students'] movements and activities" (id.).

In the case at bar, the record is devoid of any evidence that the infant plaintiff was not adequately supervised upon entering the school. A paraprofessional was assigned to stand outside of the school's entrance to take attendance as the children exited the bus and entered the building. Furthermore, it is undisputed that sizeable commercial mats were provided as a moisture barrier, and that the school custodian, who had already removed ice and snow from both the sidewalks and entranceway, remained on duty to mop-up any snow or slush that might have clung onto the students' shoes. Under these circumstances, plaintiffs' unsupported contention that the accident was proximately caused by defendants' failure to assist these students in, e.g., wiping their shoes, is based on pure speculation. In the absence of any credible evidence that such assistance was even required, plaintiffs have failed to raise a triable issue of fact as to the adequacy of defendants' supervision.

Accordingly, it is

ORDERED, that defendants' motion for summary judgment and dismissal of the complaint is granted, and the complaint is hereby dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Dated:12/10/07/s/

Hon. Thomas P. Aliotta, J.S.C.