Opinion
2012-10-16
Joseph SANCHEZ, etc., et al., Plaintiffs–Respondents, v. The CITIZENS' ADVICE BUREAU, INC., Defendant–Appellant.
Barry, McTiernan & Moore, New York (David H. Schultz of counsel), for appellant. Peña & Kahn, PLLC, Bronx (Diane W. Bando of counsel), for respondents.
Barry, McTiernan & Moore, New York (David H. Schultz of counsel), for appellant. Peña & Kahn, PLLC, Bronx (Diane W. Bando of counsel), for respondents.
TOM, J.P., MAZZARELLI, ANDRIAS, DeGRASSE, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about June 13, 2011, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Thirteen-year-old plaintiff Joseph Sanchez was injured while roller skating on a trip sponsored by defendant. The record shows that Joseph was told by his father, plaintiff Jose Sanchez, that he did not want him going on the trip because Joseph had previously broken his arm. The dispute as to whether Jose consented for Joseph to go roller skating does not preclude summary judgment, nor is it dispositive that defendant transported Joseph to the rink and paid for his skates. Assuming the issue of consent is resolved in plaintiffs' favor, defendant's actions simply “set the occasion” for or “facilitate[d]” the accident, as opposed to proximately causing it ( Lee v. New York City Hous. Auth., 25 A.D.3d 214, 219, 803 N.Y.S.2d 538 [1st Dept. 2005],lv. denied6 N.Y.3d 708, 812 N.Y.S.2d 443, 845 N.E.2d 1274 [2006] ). Plaintiffs have shown no causal connection between defendant's alleged negligent supervision and the occurrence of the accident, because without any specific allegations as to what precipitated Joseph's fall, plaintiffs' claim that defendant proximately caused his injury due to negligent supervision as he was roller skating is speculative ( see Acunia v. New York City Dept. of Educ., 68 A.D.3d 631, 632, 891 N.Y.S.2d 70 [1st Dept. 2009] ).
Moreover, there is no evidence as to how defendant's alleged lack of supervision increased the obvious risk associated with roller skating. Joseph testified that the rink was not overly crowded, no one was near him prior to his fall, and he fell while trying to stop ( see Fintzi v. New Jersey YMHA–YWHA Camps, 97 N.Y.2d 669, 670, 739 N.Y.S.2d 85, 765 N.E.2d 288 [2011];Gaspard v. Board of Educ. of City of N.Y., 47 A.D.3d 758, 850 N.Y.S.2d 550 [2d Dept. 2008] ).
Inasmuch as we are reversing we need not reach the other issue raised by defendant.