Opinion
2015-03140, Index No. 10659/12.
04-20-2016
Carlos SANTOS, etc., et al., appellants, v. CITY OF NEW YORK, et al., respondents.
David J. Hernandez, Brooklyn, N.Y., for appellants. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Susan P. Greenberg of counsel; Michael Maizel on the brief), for respondents.
David J. Hernandez, Brooklyn, N.Y., for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Susan P. Greenberg of counsel; Michael Maizel on the brief), for respondents.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated October 21, 2014, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant New York City Board of Education.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On December 19, 2011, the infant plaintiff, who was then a seventh grade student attending Edward B. Shallow Junior High School in Brooklyn, allegedly was injured when he tripped and fell while participating in an obstacle course activity during gym class. The plaintiffs commenced this action against, among others, the defendant New York City Board of Education (hereinafter the BOE), alleging, inter alia, negligent supervision. The Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the BOE, and the plaintiffs appeal.
Schools are under a duty to supervise students in their charge and will 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, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Nash v. Port Wash. Union
Free School Dist., 83 A.D.3d 136, 146, 922 N.Y.S.2d 408 ). “ ‘Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students' ” (Nash v. Port Wash. Union Free School Dist., 83 A.D.3d at 146, 922 N.Y.S.2d 408, quoting Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ). Moreover, 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 (see Goldschmidt v. City of New York, 123 A.D.3d 1087, 1 N.Y.S.3d 204 ; Gomez v. Our Lady of Fatima Church, 117 A.D.3d 987, 986 N.Y.S.2d 550 ; Gilman v. Oceanside Union Free Sch. Dist., 106 A.D.3d 952, 953, 966 N.Y.S.2d 460 ).
Here, the BOE established its prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). The BOE demonstrated that it provided adequate supervision and instruction during the infant plaintiff's gym class (see David v. County of Suffolk, 1 N.Y.3d 525, 526, 775 N.Y.S.2d 229, 807 N.E.2d 278 ; Bramswig v. Pleasantville Middle School, 68 A.D.3d 1035, 1036, 891 N.Y.S.2d 160 ). In any event, the BOE demonstrated that the alleged accident occurred in so short a span of time that even the most intense supervision could not have prevented it, thereby negating any alleged lack of supervision as the proximate cause of the infant plaintiff's injuries (see Gomez v. Our Lady of Fatima Church, 117 A.D.3d at 988, 986 N.Y.S.2d 550 ; Lowe v. Meacham Child Care & Learning Ctr., Inc., 74 A.D.3d 1029, 1030, 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 ). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the BOE.