Opinion
11-12-2015
NYALA C., an Infant Under the Age of Fourteen Years, etc., Plaintiff–Appellant, v. MINIVENTURES CHILD CARE DEVELOPMENT CENTER, INC., et al., Defendants–Respondents.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellant. Steven F. Goldstein, LLP, Carle Place (Steven F. Goldstein of counsel), for respondents.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellant.
Steven F. Goldstein, LLP, Carle Place (Steven F. Goldstein of counsel), for respondents.
Opinion
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 24, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Dismissal of the complaint was not warranted, in this action for personal injuries allegedly sustained by the then four-year-old infant plaintiff when she fell off a jungle gym ladder. Triable issues of fact exist as to whether defendants' employee, who was watching the infant plaintiff prior to the accident, negligently supervised the child. The infant plaintiff testified that she had asked the employee to help her before she fell and that the employee had assisted her with “one or two steps,” before allowing her to descend the ladder's remaining steps on her own while the employee looked on. However, the employee and another employee testified that the infant plaintiff had never asked for assistance, which was why neither of them helped the child climb down the ladder. Such conflicting testimony as to how the accident happened precludes granting defendants' motion for summary judgment (see Peuplie v. Longwood Cent. School Dist., 49 A.D.3d 837, 839, 854 N.Y.S.2d 491 [2d Dept.2008] ; see also DeRosa v. Valentino, 14 A.D.3d 448, 788 N.Y.S.2d 369 [1st Dept.2005] ).
FRIEDMAN, J.P., ACOSTA, RENWICK, ANDRIAS, MOSKOWITZ, JJ., concur.