Opinion
2019–02049 Index No. 3439/13
06-24-2020
J.F., etc., Appellant, v. BRENTWOOD UNION FREE SCHOOL DISTRICT, Respondent.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Mark R. Bernstein of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondent.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Mark R. Bernstein of counsel), for appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, OLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
In November 2011, the plaintiff, then a kindergarten student at a school operated by the defendant, allegedly sustained injuries when he fell from a playground slide. According to the plaintiff, another child pushed him from behind as he was starting to go down the slide, causing him to fall off the side of the slide.
The plaintiff filed a notice of claim and a complaint, alleging, inter alia, negligent supervision. Following discovery, the defendant moved for summary judgment dismissing the complaint. The plaintiff offered no evidence in opposition, but argued only that the defendant had failed to establish its prima facie entitlement to judgment as a matter of law. Insofar as relevant to this appeal, the Supreme Court granted that branch of the motion which was to dismiss the cause of action alleging negligent supervision, and the plaintiff appeals.
" ‘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. Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students’ " ( Simonides v. Eastchester Union Free Sch. Dist., 140 A.D.3d 728, 729, 31 N.Y.S.3d 210, quoting Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ).
Here, the defendant established, prima facie, that the level of supervision afforded to the plaintiff and the other students was adequate (see Simonides v. Eastchester Union Free Sch. Dist., 140 A.D.3d 728, 31 N.Y.S.3d 210 ; Navarra v. Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 A.D.2d 211, 733 N.Y.S.2d 730 ; Janukajtis v. Fallon, 284 A.D.2d 428, 726 N.Y.S.2d 451 ) and that the accident, as described by the plaintiff, occurred in such a manner that it could not reasonably have been prevented by more intense supervision (see Simonides v. Eastchester Union Free Sch. Dist., 140 A.D.3d at 730, 31 N.Y.S.3d 210 ). In opposition, the plaintiff failed to raise a triable issue of fact, and argued, for the first time, that the defendant was negligent in failing to bar the plaintiff from using the playground equipment. We agree with the Supreme Court's determination declining to consider this new theory of liability raised for the first time in opposition to the motion (see Gyarbin v. Concord Limousine, Inc., 139 A.D.3d 672, 673, 32 N.Y.S.3d 197 ; Dolan v. Halpern, 73 A.D.3d 1117, 1119, 902 N.Y.S.2d 585 ).
Accordingly, the Supreme Court's order must be affirmed insofar as appealed from.
RIVERA, J.P., CHAMBERS, DUFFY and BARROS, JJ., concur.