Opinion
2013-12-3
Juliette CARBONNIER, by Her Mother and Natural Guardian, Stephanie SALZMAN, et al., Plaintiffs–Respondents, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Defendant–Appellant.
Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellant. Kuharski, Levitz & Giovinazzo, Staten Island (Lonny R. Levitz of counsel), for respondents.
Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellant. Kuharski, Levitz & Giovinazzo, Staten Island (Lonny R. Levitz of counsel), for respondents.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered December 18, 2012, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
In this action for personal injuries allegedly suffered by the infant plaintiff when she fell, after being pushed by another student, while playing on the monkey bars in the school playground, defendant demonstrated its entitlement to summary judgment by demonstrating that there was adequate instruction and supervision with respect to the playground and its equipment. The evidence establishes that the infant plaintiff had used monkey bars at least 50 times before the accident and had used the monkey bars in the school playground twice before, there were a minimum of 2 adults in the playground for every class of 25 children at the time of the accident, both the teacher and the assistant teacher were walking around the playground assisting and monitoring student play, and it was “the impulsive, unanticipated act of a fellow student” that caused the accident ( see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994] ).
In opposition, plaintiffs failed to demonstrate that the level of supervision provided by defendants was inadequate, or that the alleged lack of supervision or training of the staff and the students was the proximate cause of the accident ( see Martinez v. City of New York, 85 A.D.3d 586, 925 N.Y.S.2d 490 [1st Dept.2011]; Charles v. City of Yonkers, 103 A.D.3d 765, 766, 962 N.Y.S.2d 199 [2d Dept.2013] [monkey bars]; Troiani v. White Plains City Sch. Dist., 64 A.D.3d 701, 702, 882 N.Y.S.2d 519 [2d Dept.2009] [monkey bars] ). TOM, J.P., SAXE, DeGRASSE, RICHTER, CLARK, JJ., concur.