Opinion
2017–12631 Index No. 5474/15
03-27-2019
Cecilia O'HANLON, etc., et al., Appellants, v. KIDS OF MOUNT SINAI, LLC, Respondent.
Christopher H. Thompson, West Islip, NY, for appellants. Steven F. Goldstein, LLP, Carle Place, NY, for respondent.
Christopher H. Thompson, West Islip, NY, for appellants.
Steven F. Goldstein, LLP, Carle Place, NY, for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SYLVIA O. HINDS–RADIX, BETSY BARROS, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
On June 25, 2014, the infant plaintiff, born in 2011, was a student in the toddler class in the defendant's preschool. At approximately 9:30 a.m., the infant plaintiff fell inside her classroom and struck her chin against a wooden toy, which was about 2 ½ feet tall. At the time, there was one teacher supervising five children, including the infant plaintiff. Subsequently, the infant plaintiff, by her father and natural guardian, and her father suing derivatively, commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending that it adequately supervised the infant plaintiff and that, in any event, its alleged inadequate supervision was not a proximate cause of the accident. The Supreme Court granted the motion. The plaintiffs appeal.
A provider of day care/preschool services has a duty to adequately supervise the children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision (see Mirand v. City of New York , 84 N.Y.2d 44, 49–50, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Lopez v. D & D Day Care, Inc. , 136 A.D.3d 986, 987, 26 N.Y.S.3d 177 ; Gonzales v. Munchkinland Child Care, LLC , 89 A.D.3d 987, 933 N.Y.S.2d 710, 933 N.Y.S.2d 710 ). However, like a school, a day care/preschool provider is not an insurer of the children's safety (see Lowe v. Meacham Child Care & Learning Ctr., Inc. , 74 A.D.3d 1029, 904 N.Y.S.2d 463 ; Kandkhorov v. Pinkhasov , 302 A.D.2d 432, 756 N.Y.S.2d 65 ). In general, the duty of a day care/preschool provider is to supervise the children in its care with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances (see Mirand v. City of New York , 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Douglas v. John Hus Moravian Church of Brooklyn, Inc. , 8 A.D.3d 327, 328, 778 N.Y.S.2d 77 ). Where 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 the proximate cause of the injury and summary judgment in favor of the day care/preschool is warranted (see Lowe v. Meacham Child Care & Learning Ctr., Inc. , 74 A.D.3d at 1029, 904 N.Y.S.2d 463 ; Troiani v. White Plains City School Dist. , 64 A.D.3d 701, 702, 882 N.Y.S.2d 519 ; Lopez v. Freeport Union Free School Dist. , 288 A.D.2d 355, 356, 734 N.Y.S.2d 97 ; Convey v. City of Rye School Dist. , 271 A.D.2d 154, 160, 710 N.Y.S.2d 641 ).
Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that it provided adequate supervision (see Lowe v. Meacham Child Care & Learning Ctr., Inc. , 74 A.D.3d at 1029–1030, 904 N.Y.S.2d 463 ; Troiani v. White Plains City School Dist. , 64 A.D.3d at 702, 882 N.Y.S.2d 519 ; Lopez v. Freeport Union Free School Dist. , 288 A.D.2d at 356, 734 N.Y.S.2d 97 ), and that, in any event, the level of supervision was not a proximate cause of the infant plaintiff's accident (see Gomez v. Our Lady of Fatima Church , 117 A.D.3d 987, 988, 986 N.Y.S.2d 550 ; Lowe v. Meacham Child Care & Learning Ctr., Inc. , 74 A.D.3d at 1030, 904 N.Y.S.2d 463 ; Troiani v. White Plains City School Dist. , 64 A.D.3d at 702, 882 N.Y.S.2d 519 ; Lopez v. Freeport Union Free School Dist. , 288 A.D.2d at 356, 734 N.Y.S.2d 97 ). In opposition, the plaintiffs failed to raise a triable issue of fact.
The contentions raised by the plaintiffs in Point IV of their brief are either not properly before this Court or without merit.
Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint.
SCHEINKMAN, P.J., RIVERA, HINDS–RADIX and BARROS, JJ., concur.