The following documents were read in connection with the defendant's motion for summary judgment:

The defendant's notice of motion, affirmation, and exhibits1-17

The plaintiff's affirmation and exhibits18-20

The defendant reply affirmation and exhibit21-22

Dorothy Karathanasis, as parent and guardian of Evan Karathanasis (hereinafter the plaintiff), commenced this action to recover damages for injuries he allegedly sustained on the premises of the Eastchester Middle School, a school located within the defendant Eastchester Union Free School District. The plaintiff alleges that he was injured while exiting the school when his hand went [*2]through a glass window in the upper portion of an exterior door. The complaint, as amplified by the bill of particulars, alleges that the plaintiff's injuries were caused by (1) the negligent failure of the defendant and its agents to properly supervise him, or, (2) alternatively, by the maintenance of a dangerous and defective condition on its property.

The defendant moves for summary judgment, relying upon, among other things, the depositions of the plaintiff and Douglass Oliver, the affidavits of Frank Reale and Eric Volmer, and the expert affidavit of Jordan Ruzz.

According to his deposition, the plaintiff was 13-years old and in the seventh grade on the date of the incident. School was over for the day and the plaintiff and another student decided to leave the school to go to a nearby deli. The subject door was among the first in a set of double doors that the plaintiff had to pass through to exit the school. The door had glass windows in the upper portion and a metal push plate at hand level. The plaintiff testified that, to open it, he would "usually just push against the glass . . . like how anyone else does it." The plaintiff testified that he had opened the door in this manner on other occasions without it breaking. On the date in question, when the plaintiff pushed against the glass, it shattered, cutting his hand. He testified that he was walking and simply put his hand against the glass and applied the same amount of force one might apply as when pushing against the push plate on the door. There were no faculty or school personnel present at the time of the accident.

Douglass Oliver, Head Custodian of the Eastchester Middle School, testified at his deposition that the school has nine exits. Oliver testified that some of the doors at these exits have windows made of glass and some of doors have windows made of Plexiglass. He testified:

Q: Why do some have Plexiglass and some have glass?

A: Well, at this time . . . when they break, I don't repair them with glass. I repair them with Plexi.

Q: Okay. Why do you repair with Plexiglass instead of regular glass?

A: Well, I replace them with Plexi. Because they're more sturdier. They're more stronger. They're - - they don't break as easy as glass do.

Q: Okay. Has anyone instructed you that you must use Plexiglass on all replacements?

A: It was directed to me by the district to replace it with Plexi, because they're more durable.

Thomas Ragusa, owner of White Plains Glass & Mirror, confirmed at his deposition that broken glass in the school had been replaced with safety glass. Ragusa testified that he had never recommended replacing unbroken non-safety glass with safety glass, and that when any glass was broken he directs them to "install the right glass" (presumably safety glass).

Frank Reale and Eric Volmer, custodians at the school, aver in affidavits that they counted the windows in the school and determined that there are a total 1,075 window panes.

The defendant also submits the expert affidavit of Jordan Ruzz, a licensed professional engineer. Ruzz avers that he investigated the statutory requirements for safety glass in the "vision panels" of exit doors in school occupancies. Based on his research, in 1954, when the Eastchester Middle School was constructed, there was no requirement that safety glass be installed in exit door vision panels. Beginning in 1965, for new construction occupancies, industry standards and construction codes required the installation of safety glass "where the glazed door panel was within 48 [inches] of the floor." However, there was no requirement for retrofitting existing non-impact resistant glass. According to Ruzz, current NY State building codes require broken glass to be replaced with safety glass, but contain no provisions regarding retrofitting. In conclusion, Ruzz opined: "[I]t is my professional opinion, stated with a reasonable degree of engineering certainty . . . that no legally mandated requirement exists to replace existing non-impact resistant glass in an exit door in an educational occupancy."

In an attorney's affirmation, the defendant argues that the accident occurred so quickly and without warning that no level of supervision could have prevented the accident. The defendant further argues that it had no notice of a dangerous condition and that it was fully compliant with all applicable laws and regulations.

In opposition, the plaintiff submits, among other things, a "Student Incident Report" completed by a school nurse, which indicates that there was "[n]o direct supervision" of the plaintiff at the time of the accident, arguing that this raises an issue of fact as to whether the plaintiff was properly supervised. The plaintiff further contends that the defendant's failure to produce certain documents relating to repairs of broken windows raises issues of fact with respect to the defendant's notice of the alleged dangerous condition.

In reply, the defendant contends, among other things, that the documents that the plaintiff claims should have been turned over in discovery are not maintained by the school

The defendant's motion for summary judgment is granted in part and denied in part. The branch of the motion which seeks summary judgment dismissing the negligent supervision cause of action is granted. The branch of the motion which seeks summary judgment dismissing the cause of action alleging that the accident was caused by a dangerous or defective condition of which the defendant had notice is denied.

Negligent Supervision

"[W]hile a school district is not an insurer of the safety of its students, since it cannot reasonably be expected to continuously supervise and control all of their movements and activities, it has a duty to adequately supervise the students in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Donnelly v St. Agnes Cathedral Sch., 106 AD3d 773, 774 [2d Dept 2013]; see Mirand v City of New York, 84 NY2d 44, 49 [1994]).

"Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury" (Convey v City of Rye Sch. Dist., 271 AD2d 154, 160 [2d Dept 2000]; see Baker v Eastman Kodak Co., 34 AD2d 886 [4th Dept 1970] aff'd 28 NY2d 636 [1971]).

Here, the defendant met its prima facie burden for summary judgment by demonstrating that the plaintiff's accident was not proximately caused by its alleged negligent supervision (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1980]). The plaintiff's deposition establishes that he was walking out of the school, that he simply placed his hand against the glass window, and pressed against the door when the glass broke. Under these circumstances, even the most intensive supervision would not have prevented the accident (see Walsh v City Sch. Dist., 237 AD2d 811, 812 [3d Dept 1997] ["even conceding the fact that first-grade children are energetic, physical and easily distracted, the manner in which [the plaintiff's] injury occurred could have happened even if he had been supervised"]; Baker v Eastman Kodak Co., 34 AD2d 886 [4th Dept 1970] ["The sudden and abrupt action of the unknown skater, which happened in a matter of seconds, could not have been anticipated or avoided by the most intensive supervision" aff'd 28 NY2d 636 [1971]). There is no evidence that the plaintiff was engaged in any boisterous or rough activity when the glass was broken, such that supervision could have prevented the activity (cf. Zelouf v Great Neck Union Free School Dist., 78 AD3d 690 [2d Dept 2010]; Oehler v Diocese of Buffalo, 277 [4th Dept 2000]).

In opposition, the plaintiff failed to raise a triable issue of fact on the issue of whether a lack of supervision was the proximate cause of his accident (Alvarez v Prospect Hospital, 68 NY2dat 324), and therefore the defendant is entitled to summary judgment dismissing the cause of action [*4]alleging negligent supervision.

Defective Condition

"[I]n order for a [landowner] to be held liable for injuries resulting from a defective condition upon [his or her] premises, the plaintiff must establish that the [landowner] had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected" (Juarez by Juarez v Wavecrest Mgmt. Team, 88 NY2d 628, 646 [1996]; see Donnelly v St. Agnes Cathedral Sch., 106 AD3d 773, 773 [2d Dept 2013]).

Here, the defendant has failed to meet its prima facie burden for summary judgment, since its own papers submitted in support of the motion raise issues of fact as to whether it had notice of the alleged dangerous condition. "[I]n determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmovant" (Pearson v Dix McBride, 63 AD3d 895, 895 [2d Dept 2009]). According to the deposition of the defendant's head custodian, Douglass Oliver, two door windows similar to the one at issue in this case had broken during the previous ten years and, at least five but not more than ten, had cracked without shattering, necessitating replacement. These prior instances of breakage are sufficient to raise an issue of fact as to whether the defendant was on notice of the alleged dangerous condition. Oliver's testimony that a number of the windows in exit doors had already been replaced with Plexiglass is further evidence that the defendant was on notice of the fragility of the non-safety glass panels.

The defendant cites to a number of cases where the Appellate Division, Second Department granted summary judgment to a landowner in a similar case involving an injury caused by non-safety glass in a door window. However, those cases are distinguishable from the instant matter because in each of those cases there was "no history of prior accidents or breakage" (Ambrosio v South Huntington Union Free Sch. Dist., 249 AD2d 346, 347 [2d Dept 1998] [emphasis added]; see Bradley v Smithtown Cent. Sch. Dist., 265 AD2d 283, 284 [2d Dept 1999] ["Moreover, there was no history of any prior similar accidents or breakage"]; Maloney v Union Free School Dist., 41 AD2d 937 [2d Dept 1973] ["there was no proof that the glass as installed was unsafe, as there was no record of any prior accidents or breakage"]; see also Mele v Golian Realty Co., 7 AD3d 683 [2d Dept 2004] [the plaintiffs failed to raise an issue of fact as to whether the defendants "had prior notice of the alleged dangerous condition of the [non-safety] glass in the door"]; Hassan-Willis v St. Gerard's Sch., 6 AD3d 577 [2d Dept 2004] ["the defendant demonstrated . . . that it had no notice of any alleged defective condition in the door"]).

Although the plaintiff bears the ultimate burden of establishing that the defendant was on notice of the alleged dangerous condition in order to prevail on his cause of action, on a motion for summary judgment the defendant bears the "burden to establish the absence of notice as a matter of law" (Pirrelli v Long Island R.R., 226 AD2d 166 [1st Dept 1996] [emphasis added]), and it has failed to do so on this motion.

The defendant also asserts that it is entitled to summary judgment on this cause of action [*5]because it demonstrated, through its expert's affidavit, that the door was fully compliant with applicable statutes, codes, and regulations. While a demonstration that the door was fully compliant would be sufficient to entitle the defendant to summary judgment if the violation of a duty imposed by statute was "the only source of the duty alleged" by the plaintiff (see Mercer v Hellas Glass Works Corp., 87 AD3d 987, 988 [2d Dept 2011]), here, the plaintiff has alleged that the use of non-safety glass in the exit door was the violation of the defendant's common law duty to maintain its property in a reasonably safe condition. Compliance with the law may be sufficient to rebut a claim of negligence per se, however, mere compliance with building codes and regulations is insufficient to establish that the defendant acted with due care (see Miner v Long Island Lighting Co., 40 NY2d 372, 380-381 [1976] [evidence that the defendant "complied with the provisions of the National Electric Safety Code and in some ways exceeded its requirements . . . is not dispositive of due care but constitutes only some evidence thereof"]), unless the common law standard of care has otherwise been preempted by statute (see Dobbs, The Law of Torts § 133, n 6 [2000] ["Some statutes are treated as expressing the maximum duty of the defendant, with the effect that the defendant's duty is limited"]). The expert affidavit submitted by the defendant claims that the door at issue in this case was compliant with the New York State Building Code, however, the legislature has declared that the New York State Building Code provides "a basic minimum level of protection to all people of the state from hazards of fire and inadequate building construction" (Executive Law § 371[2][b] [emphasis added]). Thus, since the Building Code merely sets a "minimum" baseline standard, compliance with that Code is insufficient to establish due care as a matter of law.

Finally, this Court is not persuaded by the defendant's claim that replacing all 1,075 window panes in the school would be cost prohibitive. According to the custodian's deposition testimony, the Eastchester Middle School has nine exits. Insofar as the role of the Court on a motion for summary judgment is "issue finding" rather than "issue determination" (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), the issue for the jury is not whether it would have been unreasonable for the defendant to replace every window in the school with safety glass, but whether the defendant was on notice of these prior instances of breakage such that it was unreasonable to continue to use non-safety glass panels in exit doors in a middle school where young children like the plaintiff are frequently entering and exiting.

Since the defendant failed to meet its prima facie burden for summary judgment dismissing the cause of action alleging maintenance of a dangerous and defective condition, this branch of its motion must be denied regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]).

Based upon the foregoing, it is hereby

ORDERED, that the branch of the defendant's motion for summary judgment dismissing the cause of action sounding in negligent supervision is granted; and it is further,

ORDERED, that the branch of the defendant's motion for summary judgment dismissing the cause of action sounding in maintenance of a dangerous or defective condition is denied; and it is [*6]further,

ORDERED, that all other relief requested and not decided herein is denied; and it is further,

ORDERED, that the parties are directed to appear on October 10, 2013, at 9:30 A.M., in courtroom 1600, the Settlement Conference Part at Westchester County Courthouse at 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York 10601.

This constitutes the decision and order of the Court.

Dated: White Plains, New York

July 24, 2013, 2013

HON. Francesca E. Connolly, J.S.C.