New York State Court of Claims

New York State Court of Claims

RAY v. THE STATE OF NEW YORK, #2002-001-016, Claim No. 98523, Motion Nos. M-64290, CM-64577


Case Information

CAROL RAY, as ADMINISTRATRIX of the Estate of CHEYENNE A. RAY, deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Thomas S. Marzitelli, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant's motion for summary judgment pursuant to CPLR 3212 and on claimant's cross motion for leave to amend her bill of particulars pursuant to CPLR 3025 (b): Notice of Motion, dated November 13 and filed November 14, 2001; Affirmation in Support of Belinda A. Wagner, Esq., AAG, dated November 13 and filed November 14, 2001, with annexed Exhibits A-S; Defendant's Memorandum of Law, dated November 13 and received November 14, 2001; Notice of Cross Motion, dated January 15 and filed January 16, 2002; Affidavit of Thomas S. Marzitelli, Esq., sworn to January 15 and filed January 16, 2002, with annexed Exhibits A-D; Affidavit of Alden P. Gaudreau, sworn to January 14 and received January 16, 2002; [Claimant's] Memorandum of Law, dated January 15 and received January 16, 2002; Affirmation in Opposition of Belinda A. Wagner, Esq., AAG, dated January 22 and filed January 24, 2002; and claim, dated June 24 and filed June 25, 1998.

This claim, brought by Carol Ray as Administratrix of the Estate of Cheyenne A. Ray ("claimant"), stems from the drowning of Cheyenne A. Ray ("decedent" or "the child"), which occurred at Grafton Lakes State Park ("Grafton") on August 5, 1996 (claim, dated June 24 and filed June 25, 1998 ["claim"], ¶¶ Sixth-Eighth). Claimant seeks damages from defendant State of New York ("defendant" or "the State") for personal injury and wrongful death on account of the State's alleged breach of a "duty to provide a safe place for those using the [bathing] facilities [at Grafton] and to provide the necessary supervision so as to monitor, guard and protect those people using the facilities including [decedent]" (claim, ¶ Sixth); specifically, she alleges that the State was negligent for failure to place safeguards such as buoy lines properly; have a sufficient number of lifeguards on duty during the relevant time; supervise the swimmers adequately during a shift change of the lifeguards; insure that the lifeguards had the proper training; and observe decedent as she entered deeper/dangerous water and further observe her as she "was in trouble as she was drowning" (claim, ¶ Ninth, a-h). Defendant has now moved for summary judgment; claimant opposes the motion and cross moves to amend the bill of particulars.

I. Background

A. Factual setting

On August 5, 1996, the Marillac Shelter ("Shelter"), which provides temporary shelter for families without homes, offered residents an outing to Grafton. The Shelter's Activities Coordinator, Sharon Morrison ("Morrison"), provided transportation to Grafton for those residents wishing to participate in the outing, whose number included decedent, a five-year old non-swimmer; her two sisters, who were both about seven years old; Melissa Rodriguez ("Rodriguez"), who went on the outing with her 15-month old infant; and Julie Budesa ("Budesa"), a 14-year old resident, and her two and one-half-year old sister. Prior to the outing, decedent's father had signed a babysitting agreement consigning his three children to Rodriguez's direct care and supervision (Affirmation in Support of Belinda A. Wagner, Esq., AAG, dated November 13 and filed November 14, 2001, with annexed Exhibits A-S ["Wagner Aff."], exhs. A, B and O; see also, the "Statement of Facts" in defendant's memorandum of law, dated November 13 and received November 14, 2001 ["def. memorandum"]: claimant has not disputed any of the facts set forth above, including the ages or names or relationships of these various participants in the outing).

The children apparently first entered the water shortly after their arrival at Grafton at approximately 12:15 P.M. (Wagner Aff., exhs. B and O, pp. 2 and 1 respectively). Budesa, the last person known to have seen decedent alive, described decedent's disappearance as follows in a statement that she gave on August 5, 1996:[1]
At approx. 12:15 P.M., I was with the Day Care Group from [the Shelter][.] We went and put our bathing suits on, to go to the beach[.] The group then went and put our towels out on the sand[;] then we went in the water. We had gotten permission from [Morrison], who was our Group Leader, to go into the water. We, went into the water, that came up to my thigh, about everyone elses' [sic] stomach. I looked around and saw the little girl [decedent] who was standing about 5 feet from me, in towards the beach. The little girl and the rest of the group came out of the water because we were all cold. When we got out, we stood in the sunlight and warmed up, then went back into the water and played with the sand. That is when the little girl [decedent] disappeared. I think that she, the little girl[,] was gone for a few seconds. I looked up on the beach for [her], but couldn't find her. When the little girl disappeared, she had been approx. 3 feet away from me. The group and I were looking for [Morrison], to see if the little girl was with her. We saw [Morrison] was up on the beach, sitting on her towel, and the little girl wasn't with her. That is when a lifeguard pulled the little girl from the water, and either [Morrison] or one of the lifeguards called the ambulance (Wagner Aff., exh. O, pp.1-2).

At the time decedent disappeared, Rodriguez, who had given decedent and her sisters permission to go into the water with Budesa, was apparently tending to the two youngest children in the shallowest section of the lake's swimming area (Wagner Aff., exh. B). When she eventually "went to go look where the girls were," she "noticed then a crowd starting to form around the center lifeguard chair" and then found decedent's sisters, who told her that decedent had drowned (id.).

Another bather, Gary M. Roy ("Roy"), found decedent in what he characterized as somewhat "murky" water (Affidavit of Thomas S. Marzitelli, Esq., sworn to January 15 and filed January 16, 2002, with annexed Exhibits A-D ["Marzitelli Aff."], exh. B, p. 2; Wagner Aff., exhs. G and H, pp. 1-2 and 1 respectively). Moments earlier he had overheard two other bathers comment that they had bumped into something under the water (Marzitelli Aff., exh. B, p. 1), which prompted Roy to dive under the surface to look. He discovered the child on the lake's bottom, pulled her to the surface and yelled for the lifeguards as he moved towards the shore roughly 35 yards away (id., at pp. 2-3; Wagner Aff., exh. D).

Decedent was found by Roy at 12:42 P.M.[2] in section one of the lake at a location where the water was subsequently determined to be four feet, three inches deep, a few feet inside the outer or perimeter buoy line (Marzitelli Aff., ¶ 3; Wagner Aff., exhs. D and E, ¶ 16). She was three feet, six inches tall (Affidavit of Alden P. Gaudreau, sworn to January 14 and received January 16, 2002 ["Gaudreau Aff."], ¶ 11; Wagner Aff., exh. E, ¶ 16; Affirmation in Opposition of Belinda A. Wagner, Esq., AAG, dated January 22 and filed January 24, 2002 ["Wagner Reply Aff."], ¶ 19).

Two lifeguards, Daren Filsinger ("Filsinger") and Anthony Paul ("Paul"), were stationed in the double lifeguard chair overlooking section one when Roy discovered decedent (Wagner Aff., exhs. G and H). They had moved to this lifeguard station at the shift rotation at 12:30 P.M.

Upon hearing Roy and observing him walking out of the water carrying decedent, Paul immediately ran into the water. He relieved Roy of the child while Filsinger blew his whistle three times to signal an emergency and summon lifeguard assistance (Marzitelli Aff., exh. C, pp. 11, 22, 30-31). Efforts to revive decedent were unsuccessful and she was pronounced dead at 9:20 P.M. at Albany Medical Center (Wagner Aff., exhs. I-J).

B. The motion and cross-motion

After discovery was complete and claimant filed a Note of Issue, the State moved for summary judgment (Notice of Motion, dated November 13 and filed November 14, 2001). The State's position is best summarized in its memorandum of law accompanying the motion as follows:
[C]laimant will be unable to prove that the lifeguards were improperly trained, were of an insufficient number or did not supervise the swimmers during the chair rotation or at any time prior to the drowning. She will be unable to show that the markings used to divide the sections were inadequate. As a matter of law, the claimant will be unable to prove that the defendant breached any duty to the decedent (def. memorandum, p. 6).
Defendant avers that the beach was reasonably safe and that the lifeguards were properly trained, employed proper scanning techniques, executed a proper lifeguard rotation and were of a sufficient number; i.e., that the lifeguards acted in a reasonable manner (Wagner Aff., ¶ 7). Any fault, the State argues, rests with those primarily responsible for decedent's supervision (the Shelter and the babysitter) because the duty of parental supervision cannot be imposed upon the State (def. memorandum, p. 9 citing Farrell v State of New York, Claim No. 81918, [Silverman, J.], April 22, 1993).[3] Claimant resists the State's motion, arguing that issues of fact and credibility exist such as to preclude the Court from finding as a matter of law that defendant was negligent.

Claimant also cross moves to amend her bill of particulars to include alleged violations of two sections of the State Sanitary Code ("the Code") regarding the operation of bathing beaches (see, 10 NYCRR 6-2 et seq.). Specifically, claimant and Gaudreau, her retained safety engineer, contend that one section of the Code required defendant to place a buoy line to separate shallow and deep-end areas at a depth of three to four feet (see, 10 NYCRR 6-2.19 [4.7.1]), which was not done at this beach (Marzitelli Aff., ¶ 11; Gaudreau Aff., ¶¶ 6-12). If this had been done, claimant argues, the lifeguards as well as other adults might have noticed that decedent had wandered into a dangerous area; and, if the buoy line had been placed at a depth of three feet, the water would not have been over decedent's head (Marzitelli Aff., ¶¶ 11-12; Gaudreau Aff., ¶¶ 6-14). In addition, claimant faults the State for failure to add more lifeguards to section one on the day of the drowning (see, 10 NYCRR 6-2.17 [a] [5]) since the lake was allegedly overcrowded which, in turn, interfered with the lifeguards' proper supervision of bathers such as decedent (Marzitelli Aff., ¶ 13; Gaudreau Aff., ¶ 18); and argues that the lifeguard shift rotation occurring 12 minutes before the discovery of decedent's body likely distracted the guards stationed at section one and contributed to their failure to detect that decedent was in trouble or drowning (Marzitelli Aff., ¶ 13; Gaudreau Aff., ¶17).

The State has responded by, among other things, challenging the qualifications of claimant's expert to opine on issues of water safety. Defendant also argues that any deficiency in the placement of a buoy line to designate the separation of shallow and deep-end areas at a depth of three to four feet cannot be causally connected to decedent's drowning (Wagner Reply Aff., ¶¶ 8, 18-19).

II. Discussion

As an initial matter, the Court grants claimant's cross motion to amend her bill of particulars to allege noncompliance with 10 NYCRR 6-2.19 (4.7.1) and 10 NYCRR 6-2.17 (a) (5), which pertain to the proper placement of buoy lines and the number of lifeguards respectively (Marzitelli Aff., ¶ 17). In fact, this material is not properly characterized as "additional or subsequent transactions or occurrences" (see, CPLR 3025 [b]) in any event: claimant has consistently alleged the factual basis underlying the proposed amendment by contending that the State failed, among other things, to place buoy lines properly and to have a sufficient number of lifeguards on duty (claim, ¶ Ninth, a, c). The Court cannot discern, and the State has not argued, how the proposed amendment is prejudicial (Edenwald Contracting Co., Inc. v City of New York, 60 NY2d 957; Ganci v Port Authority Trans-Hudson Corp., 258 AD2d 386, appeal dismissed 93 NY2d 965).[4]

A. General principles

As a general proposition, the State is not the insurer of the safety of those who utilize its park facilities, including its beaches (see, Curcio v City of New York, 275 NY 20, 23; Maull v State of New York, 16 Misc 2d 499). "The law requires that [the State] shall exercise reasonable care in the maintenance of its parks and in the supervision of their use by the public" (Maull v State of New York, supra, at 503). This duty entails "an adequate degree of general, but not strict or immediate, supervision to patrons who have been invited to avail themselves of park facilities or recreation areas" (McAuliffe v Town of New Windsor, 178 AD2d 905, 906; see, Caldwell v Village of Island Park, 304 NY 268).

As the proponent of summary judgment, defendant must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to demonstrate the absence of any material issues of fact (Winegrad v New York University Medical Center, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, supra, at 853). Once the proponent of summary judgment has made a prima facie showing, however, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial (Zuckerman v City of New York, supra, at 562; Alvarez v Prospect Hosp., 68 NY2d 320).

1. Adequacy of lifeguards' training

To make a prima facie showing of adequate lifeguard training, the State offers the affidavit of Darwin D. DeLappa ("DeLappa"), the longtime Director of Water Safety for the State Office of Parks, Recreation and Historic Preservation (Wagner Aff., exh. E). DeLappa states that all the lifeguards employed at Grafton during the relevant time period had met the lifeguard certification and had completed all required training, including training in scanning techniques, rotation and shift changes and indications of victim recognition and active drowning (id., ¶ 18). Defendant includes the relevant supporting documentation (id., at ¶ 17; Exhs. P-S), and claimant does not counter this evidence.

2. Number of bathers in the water and sufficiency of number of lifeguards

Although claimant argues that the beach was too crowded on the day decedent drowned and therefore additional lifeguards should have been provided for section one, the regulation that she cites does not relate the number of lifeguards on duty at a bathing area to the number of people in the water. Rather, this provision states only that the permit-issuing official may require additional personnel when necessary, listing such considerations for increased coverage as use of a diving board, patron decorum, alcohol consumption and beaches used primarily for the developmentally disabled (see, 10 NYCRR 6-2.17 [a] [5]). The regulations appear to regulate crowded conditions by requiring a certain amount of space per swimmer (see, 10 NYCRR 6-2.16 [i] [1]; 6-2.19 [4.3] [minimum of 25 square feet of water surface per swimmer and 75 square feet for depths over four feet deep]). Moreover, the remedy to prevent overcrowding is to open further sections of the lake (Wagner Aff., exhs., E, ¶ 11 and exh. F, p.1); and on August 5, 1996, the lifeguards opened three of the lake's seven sections (Wagner Aff., exh. D; Marzitelli Aff., exh. C, pp. 13-14).

Further, DeLappa provides the only evidence as to the actual number of people in the water on the day that the child drowned. Based on estimates provided by the lifeguards and his own count of the number of patrons made two hours after the accident and the next day (when attendance at Grafton was higher by about 500 people as verified by the attendance records), DeLappa estimates that between 250 and 300 bathers were in the water spread throughout the three open sections when decedent drowned (Wagner Aff., exh. E, ¶¶ 11, 12). Utilizing 10 NYCRR 6-2.16, DeLappa states that the 48 x 44 yard area comprising section one had a capacity for 570 swimmers (id.).

Claimant has offered no evidence to rebut the State's proof that it, in fact, had two instead of the one lifeguard required for a 44-yard-wide section of beach (see, 10 NYCRR 6-2.17 [4] [requiring one lifeguard for every 50 yards of beach front where level I or II supervision is required and otherwise stating that there must be sufficient staff to provide visual surveillance of the bathing area]). She has presented only conjecture that decedent was bumped into by another swimmer, a theory offered by Rodriguez, the inattentive babysitter, as a self-serving explanation for the child's drowning (Marzitelli Aff., ¶ 8, exh. D, p. 65); or that the alleged overcrowding "likely" caused a reduction in the lifeguards' supervision of the bathing area (Gaudreau Aff., ¶¶ 18-19). In short, claimant has tendered only speculation--not evidence--to support her allegation of a condition of overcrowding or a concomitant reduction in supervision on the day decedent drowned.

3. Adequacy of supervision and the shift rotation

According to claimant, the State was negligent for failure to observe the child particularly, and for failure to supervise the bathing area adequately during a shift rotation occurring 12 minutes before decedent's body was found. These assertions can be telescoped into the single allegation that the State did not monitor the lake and its patrons properly (see, McAuliffe v Town of New Windsor, supra, at 906).

A shift change is supposed to be conducted in a certain way so that a relieving lifeguard takes over the scanning of the water while the lifeguard being relieved descends from the chair; and the lifeguard being relieved then resumes the scanning of the water while the relieving lifeguard ascends the chair (Wagner Aff., exh. E, ¶ 27). A shift change is done in this manner to insure uninterrupted coverage of the water (id.), and was one of the topics covered during these lifeguards' orientation (see, Wagner Aff., exh. R, ¶ VI [c]). Lifeguard Bridget Frawley ("Frawley") explained that rotations occurred frequently at Grafton--on the order of every 20 minutes to every half-hour--in order "[t]o make sure that everyone on stand was fresh and alert" (Marzitelli Aff., Exh. C, pp. 16-17).

The evidence establishes that lifeguards Frawley and Will LaForester were sitting in the double lifeguard chair overlooking section one until a lifeguard rotation at approximately 12:30 P.M., when lifeguards Filsinger and Paul relieved them (Wagner Aff., exhs. E, ¶ 26, G, H and N; Marzitelli Aff., exh. C, pp. 24-25]). Frawley described her rotation with Filsinger as follows:
When he arrived to relieve me he alerted me to the fact that he was scanning the water and it was okay for me to get down. And then after I was down I also had a conversation with him that I had taken over scanning of the water and that it was okay for him to go back up (Marzitelli Aff., Exh. C, p. 25).
When claimant's counsel stated that "when you [Frawley] left chair one . . . to go to the first aid section [after the rotation], no one was in the chair at that point, is that correct?", Frawley was adamant that a lifeguard would always be present (and was present) in the lifeguard chair (Marzitelli Aff., Exh. C, p. 23). DeLappa, who investigated the accident, stated that based on his interviews with the lifeguards he concluded that there was no deficiency in their scanning at any point in time--including during the chair rotation (Wagner Aff., exh. E, ¶¶ 26-28).

Claimant theorizes that the lifeguard shift change at 12:30 P.M. distracted the lifeguards, which contributed to decedent's drowning (Marzitelli Aff., ¶ 13; Gaudreau Aff., ¶17); however, this theory is not supported by any evidentiary proof tending to show that the lifeguards were inattentive either during the rotation or at any other time (compare, Rickwalt v Richfield Lakes Corp., 246 Mich App 450, 457 [witnesses testified, and lifeguards acknowledged, that they were distracted by football game on beach moments before drowning victim was discovered under water]). There is also no evidence that the child drowned at 12:30 P.M. rather than earlier (the group from the Shelter arrived at 12:15 P.M. and entered the water shortly thereafter) or later (Roy recovered the child's body at 12:42 P.M.). DeLappa, defendant's expert who is well-qualified in the field of water safety (Wagner Aff., exh. E, ¶¶ 1, 3-8), noted that a small child may submerge in as little as 20 seconds (id., ¶ 21).

Claimant essentially asks the Court to infer that the lifeguards in section one must have been inattentive because otherwise they would have noticed decedent as she "was in trouble as she was drowning" in the words of the claim. Any such inference, however, would run afoul of the oft-repeated principle that negligence cannot be inferred from the mere happening of an accident (see, Biernacki v Village of Ravena, 245 AD2d 656, 657; Russell v A. Barton Hepburn Hosp., 173 AD2d 985, 986; Colon v State of New York, 209 AD2d 842, 843; Peralta v La Placita Dominica Market Corp., 170 Misc 2d 340, 345). The conclusion of claimant's expert that it was "very likely that . . . the shift change distraction may have contributed to the lack of detection of [decedent] as she drowned" (Gaudreau Aff., ¶17) is premised upon a "‘contingent, speculative, or merely possible'" foundation of material facts (Kirker v Nicolla, 256 AD2d 865, 867, quoting Neidert v Austin S. Edgar Inc., 204 AD2d 1030, 1031), and does not raise a triable issue.

4. Missing or improperly placed buoy line

The Code requires that "all bathing beaches located on ponds, lakes . . . or other bodies of water in the State" (10 NYCRR 6-2.19 [0.0]) shall provide "[m]arker lines with buoys . . . to designate the perimeter [and] the separation of shallow and deep-end areas at a depth of three to four feet" ; and that "[a] separate wading area up to two feet deep, designated by lines, should be provided"(10 NYCRR 6-2.19 [4.7.1]).[5] At Grafton, there was a marker line with buoys placed so as to delineate the depth at roughly two feet[6] and another marker line with buoys (the outer buoy line) to designate the outer perimeter of the swimming area at four feet, ten inches (Wagner Aff., exh. D, exh. E, ¶ 12; see also, Marzitelli Aff., exh. C, p. 9, where Frawley explains that "[t]he outer buoy line is where patrons are no longer allowed to be swimming"). Claimant's expert faults the State for placing a marker line with buoys at two feet and at four feet, ten inches, and for not placing a marker line with buoys at three to four feet. This deficiency, opines claimant's expert, created a dangerous condition because it impeded the lifeguards' or other individuals' ability to recognize that a child had wandered into a dangerous area; i.e., "[h]ad the second buoy line been at 3 to 4 feet, as required, it would assist those supervising the children to watch and identify going beyond that buoy line and into a dangerous area for children" (Gaudreau Aff., ¶ 10).

Violation of a regulation is generally some evidence of a breach of duty and negligence (see, Long v Forest-Fehlhaber, 55 NY2d 154, 160; Gruber v Latello, 207 AD2d 1033); however, absent an evidentiary showing tending to suggest that the breach was a substantial cause of decedent's drowning, claimant cannot state a prima facie case of negligence (see, Albano v Brooklyn Union Gas Co., 288 AD2d 246; Plante v Hinton, 271 AD2d 781, 782; Silva v Village Square of Penna Inc. 251 AD2d 944, 945; see also, Overton v City of New York, 89 NY2d 850 [reversing Appellate Division's affirmance of jury verdict because even if it were true that there were fewer lifeguards on duty than were required by applicable regulatory codes on day decedent drowned, plaintiff had failed to establish that violation of these provisions was a proximate cause of her infant son's drowning]). Here, the affidavit of claimant's expert is inadequate to raise an issue of fact regarding the relationship between the alleged breach and decedent's drowning.

First, Gaudreau's expertise as a safety engineer appears to be limited to the field of mechanical engineering, mechanical systems and components and vehicular accident reconstruction (Wagner Reply Aff., ¶ 8; Gaudreau Aff., annexed resume). He gives no indication that he "possesses the skill, training, education, knowledge, or experience to render an opinion" as to this question of water safety and the cause of decedent's drowning (Hofmann v Toys "R" Us--NY Ltd. Partnership, 272 AD2d 296, 296 [licensed engineer did not evidence specialized knowledge to render opinion regarding consumer shelving or customer safety]; see, Merritt v Raven Co., 271 AD2d 859, 861 [expert's status as licensed professional engineer did not render him proficient to render opinion regarding field of truck and trailer design absent any evidence of practical experience in that area]).

More significantly, there is no evidence in this record which would allow the Court, by any logical inference, to create a nexus between the lack of a buoy line to designate the separation of shallow and deep-end areas at a depth of three to four feet and the drowning. Budesa, the 14-year-old who last saw claimant, did not suggest that she and the other children, including decedent, had advanced very far into the lake. To the contrary, she indicated that they were in the water and playing in the sand, or in the shallowest waters, just moments before decedent disappeared (see, Wagner Aff., Exh. O, pp.1-2). Further, no evidence supports Gaudreau's opinion that decedent, a non-swimmer who was three feet, six inches tall, would have been prevented from drowning if the State had placed an additional buoy line so as to designate a depth of three to four feet, or had either moved the two-foot line farther out from the beach or the four foot, ten inch-line closer to the beach.[7]

III. Conclusion

While it is true that summary judgment is a drastic remedy, it is proper and warranted unless the opposing party "assemble[s] and lay[s] bare affirmative proof to establish that the matters alleged are real and capable of being established upon a trial" (Hasbrouck by Phillips v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916; see, Zuckerman v City of New York, 49 NY2d 557, supra). Defendant has established that the lifeguards at Grafton were adequately trained; that the number of lifeguards on duty at the relevant time provided sufficient coverage for the number of bathers (indeed, that there were more lifeguards in section one on August 5, 1996 than any potentially applicable regulation required); that two lifeguards were on duty and scanning the water in section one at all times between 12:15 P.M. and 12:42 P.M.; and that there were marker lines with buoys at roughly two feet and at four feet, ten inches.

Decedent's drowning was unobserved and the exact location and manner and time of her initial submergence is unknown and will ever remain so. The death of a child is a terrible tragedy, but the law still demands at a minimum some evidence that defendant breached its duty to decedent and that such breach proximately caused her death. Here, claimant has not opposed the State's motion with anything other than speculation supported by the affidavit of an expert unqualified to opine on the relevant issues. Consequently, no real issue of genuine fact has been raised and the Court has been offered no reason to believe that these deficiencies can be remedied by a trial.[8]

In short, the evidence establishes that the State acted reasonably in the maintenance of the bathing area at Grafton and in the supervision of bathers on August 5, 1996. There is no evidence of any violation of a duty on the part of the State which presents any triable issue of material fact, or, alternatively, any reason to suppose that the drowning was causally related to any of the deficiencies alleged by claimant, including the absence of a buoy line at three to four feet. The Court therefore grants claimant's cross motion to amend the bill of particulars; and grants the State's motion for summary judgment and dismisses the claim.

February 25, 2002
Albany, New York

Judge of the Court of Claims

[1]This statement (Wagner's Aff., exh. O) was sworn to before a park patrol officer and witnessed by both the officer and Budesa's mother.
[2]Although Roy in a signed statement estimated that he discovered the child on the bottom of the lake sometime between 12:35 P.M.. and 12:42 P.M., the parties agree that Roy found her at 12:42 P.M. (Marzitelli Aff., ¶ 3).
[3]There was a sign posted at Grafton listing the "Beach Rules," including a rule requiring children under the age of 10 to be under direct supervision at all times (Wagner's Aff., exhs. C and E, ¶ 30).
[4]The State takes the position that these regulations are a guideline and not a mandate with respect to its maintenance and supervision of the bathing beach at Grafton (Wagner Reply Aff., ¶ 14). In either event, these provisions arguably set a standard of care.
[5]The Court notes that this regulation does not specify that any wading area be demarcated by marker lines with buoys, but rather simply by lines.
[6]DeLappa refers to the buoy line at two feet as the intermediate buoy line used to create a shallow wading area (Wagner Aff., ¶ 12).
[7]Water at a depth of three feet might have covered the child's mouth, assuming that she could stand upright in water at that depth; whereas water at a depth of four feet would have been over her head (Wagner Reply Aff., ¶ 19).
[8]Claimant, who has filed a note of issue and has not argued in opposing the State's motion that further discovery would remedy the evidentiary gaps (see, CPLR 3212 [f]; Kaminester v Weintraub, 131 AD2d 440) is reasonably presumed to have proffered her best evidence in opposition to the State's motion (see, Campagno v IPCO Corp., 138 Misc 2d 44, 46).