The following papers were read on the claimants’ motion for reargument and
renewal and for partial summary judgment: Notice of Motion, Affirmation and
Exhibits annexed; Affirmation in Opposition and Exhibit annexed; Reply
The claim alleges that the infant claimant was injured when he stepped on hot
charcoal in the sand at a barbecue area at Jones Beach, and that the presence of
the charcoal in the sand resulted from the negligence of the defendant.
The claimants seek to renew their motion for summary judgment on the issue of
liability, which was denied by Decision and Order filed March 15,
The basis for the claimants’ motion to renew is the production, less than
a week before the latest date scheduled for trial, by the defendant of documents
which contain evidence of four prior similar incidents — two which
occurred within four months prior to the incident underlying this claim, and two
others which occurred within three years before.
These documents, and the fact that the incidents to which they refer occurred,
explicitly contradict statements contained in the sworn affidavit of Michael
Panvini, the defendant’s employee who was responsible for the operations
and supervision at the area in question at the time of the incident herein, and
for four years prior, which was submitted by the defendant in opposition to the
claimants’ motion for summary judgment. Their inclusion in the record
render Mr. Panvini’s sworn affidavit of no probative value. His affidavit
was the only evidence offered by the defendant in opposition to the original
Thus, the defendant’s opposition no longer raises an issue of fact with
respect to the failure of the defendant to provide an appropriate receptacle for
hot charcoal, which had been a basis for the Court’s previous Order.
Upon examination of the record, consisting of the verified claim, the affidavit
of one of the claimants, and the documented evidence of four prior similar
incidents, the Court finds the claimants have established that the presence of
hot charcoal in the sand was a dangerous condition, and the defendant was aware
of the likelihood of injury, based upon similar incidents in the recent past;
and that the failure of the defendant to have in place any means for the
disposal of hot charcoals was a breach of its duty of care under the
circumstances (see e.g. Mesick v State of New York, 118 AD2d 214;
Collins v State of New York, Court of Claims, Mignano, J., February 4,
2004, Claim No. 102837).
The defendant’s opposition, consisting of argument, does not raise any
issue of fact. The affidavit of another employee, submitted in opposition to
the motion to renew, offers an explanation for the belated production of
documents, but none for Mr. Panvini’s earlier sworn statements.
Accordingly, the claimants’ motion for renewal is granted, and upon
renewal the claimants’ motion for summary judgment as to liability is
Counsel are directed to confer and agree upon an expedited schedule for the
completion of any discovery necessary for a trial on the issue of damages.