Opinion
2014-11-12
Joseph FELDMAN, etc., et al., appellants, v. MERRICK UNION FREE SCHOOL DISTRICT, respondent.
Lurie & Flatow, P.C., New York, N.Y. (Jay Flatow of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Avis Spencer DeCaire and Kathleen D. Foley of counsel), for respondent.
Lurie & Flatow, P.C., New York, N.Y. (Jay Flatow of counsel), for appellants. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Avis Spencer DeCaire and Kathleen D. Foley of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, NassauCounty (Woodard, J.), entered December 4, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The injured plaintiff, then seven years of age, was injured when he fell from a “monkey bars” apparatus during a supervised play period at school. The plaintiffs commenced this action against the defendant school district seeking damages based on, inter alia, its alleged negligent supervision of the injured plaintiff.
“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263; see Tanenbaum v. Minnesauke Elementary School, 73 A.D.3d 743, 744, 901 N.Y.S.2d 102; Armellino v. Thomase, 72 A.D.3d 849, 849, 899 N.Y.S.2d 339). “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students” (Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263, citing Lawes v. Board of Educ. of City of N.Y., 16 N.Y.2d 302, 306, 266 N.Y.S.2d 364, 213 N.E.2d 667; see Nancy Ann O. v. Poughkeepsie City School Dist., 95 A.D.3d 972, 944 N.Y.S.2d 251; Walker v. City of New York, 82 A.D.3d 966, 918 N.Y.S.2d 775; Armellino v. Thomase, 72 A.D.3d at 849–850, 899 N.Y.S.2d 339; Paca v. City of New York, 51 A.D.3d 991, 992, 858 N.Y.S.2d 772).
Under the circumstances presented here, the defendant established, prima facie, that it provided adequate supervision of the infant plaintiff ( see Walker v. City of New York, 82 A.D.3d at 967, 918 N.Y.S.2d 775; Troiani v. White Plains City School Dist., 64 A.D.3d 701, 702, 882 N.Y.S.2d 519; Calcagno v. John F. Kennedy Intermediate School, 61 A.D.3d 911, 912, 877 N.Y.S.2d 455). In opposition to that showing, the plaintiffs failed to raise a triable issue of fact as to negligent supervision or as to proximate cause ( see Calcagno v. John F. Kennedy Intermediate School, 61 A.D.3d at 912, 877 N.Y.S.2d 455; Botti v. Seaford Harbor Elementary School Dist. 6, 24 A.D.3d 486, 808 N.Y.S.2d 236; Navarra v. Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 A.D.2d 211, 733 N.Y.S.2d 730).
The defendant also established, prima facie, that there was no defect in the playground surface that was proximately related to the injuries, and the plaintiffs failed to raise a triable issue of fact in opposition to that prima facie showing ( see Daefler v. Briarcliff Manor Union Free School Dist., 72 A.D.3d 872, 898 N.Y.S.2d 263; Giulini v. Union Free School Dist. # 1, 70 A.D.3d 632, 633, 895 N.Y.S.2d 453; see also Miller v. Kings Park Cent. School Dist., 54 A.D.3d 314, 315, 863 N.Y.S.2d 232).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.