Opinion
2001-02111
Submitted December 17, 2001.
March 5, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered January 30, 2001, which granted the defendants' motion for summary judgment dismissing the complaint.
Steven R. Harris, New York, N.Y. (Gary R. Nitsberg of counsel), for respondents.
David K. Lieb, Center Moriches, N.Y. (Andrea L. Thompson of counsel), for appellant.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
ORDERED that the order is affirmed, with costs.
When the plaintiff was a seven-year-old student in the defendant White Plains City School District, she was injured during a mandatory physical education class conducted by the defendant Jeffrey Miller. She was retrieving an errantly-thrown volleyball and ran into an unpadded cinderblock wall in the gymnasium.
A school is not an insurer of the safety of its students, but rather, "is obligated to exercise such care over students in its charge that a parent of ordinary prudence would exercise under comparable circumstances" (Jennings v. Oceanside Union Free School Dist., 279 A.D.2d 507, 508; see, Mirand v. City of New York, 84 N.Y.2d 44, 49). The defendants made a prima facie showing of entitlement to summary judgment dismissing the complaint as a matter of law (see, Shabot v. East Ramapo School Dist., 269 A.D.2d 587; see generally, Mirand v. City of New York, supra). In response, the plaintiff failed to raise a triable issue of fact regarding the care and supervision afforded by the defendants (see, CPLR 3212[b]; Mirand v. City of New York, supra). Further, the plaintiff also failed to present any expert testimony to show that the School District was obligated to provide padding on the gymnasium wall (see, Kazlow v. City of New York, 253 A.D.2d 411; Warech v. Trustees of Columbia Univ., 203 A.D.2d 53, 54). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
The plaintiff's remaining contention is not properly before this court, as she did not appeal from the order dated March 31, 2000 (see, CPLR 5515).
SANTUCCI, J.P., SMITH, CRANE and COZIER, JJ., concur.