Opinion
2019-09568 2019-11913
04-28-2021
Nicole Colantonio, etc., appellant, v. Mount Sinai Union Free School District, respondent.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Lauren E. Bryant], of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for respondent.
ROBERT J. MILLER VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ. (Index No. 612061/15)
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Lauren E. Bryant], of counsel), for appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated August 2, 2019, and (2) a judgment of the same court entered September 19, 2019. The order granted the defendant's motion for summary judgment dismissing the complaint. The judgment, upon the order, is in favor of the defendant and against the plaintiff dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
On December 1, 2014, the plaintiff's infant son (hereinafter the infant), a fourth-grade student at the defendant's elementary school in Suffolk County, allegedly sustained personal injuries during his physical education class. The plaintiff, as mother and natural guardian of the infant and individually, commenced this action against the defendant. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. The plaintiff appeals.
Herein, the issue of whether the infant was given proper instruction during his physical education class was integral to the issue of whether he was adequately supervised. The defendant established, prima facie, that the infant was provided with adequate instruction and was adequately supervised, and, in any event, that any alleged negligence on its part was not a proximate cause of the infant's injuries (see Gonzalez v South Huntington Union Free Sch. Dist., 176 AD3d 920; V.W. v Middle Country Cent. Sch. Dist. at Centereach, 175 AD3d 638, 639; Simonides v Eastchester Union Free Sch. Dist., 140 AD3d 728; Diaz v City of Yonkers, 103 AD3d 682). Where, as here, 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 a proximate cause of the injury (see Gonzalez v South Huntington Union Free Sch. Dist., 176 AD3d at 921; Convey v City of Rye School Dist., 271 AD2d 154, 160). In opposition, the plaintiff failed to raise a triable issue of fact.
In light of our determination, we need not reach the defendant's remaining contention.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
RIVERA, J.P., MILLER, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur. ENTER:
Aprilanne Agostino
Clerk of the Court