Gomez v. Our Lady of Fatima Church

MARK C. DILLON

Pena & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), for appellants. Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Keri A. Wehrheim of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Taylor, J.), entered September 19, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff was injured when he allegedly fell while upon the defendant's school playground area. The infant plaintiff, by his mother, and his mother individually, commenced this action against the defendant, alleging a failure to adequately supervise the students. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint.

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” ( Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263). Even if there is a triable issue of fact as to the adequacy of supervision, “ ‘liability for any such negligent supervision does not lie absent a showing that it constitutes a proximate cause of the injury sustained’ ” ( Mayer v. Mahopac Cent. School Dist., 29 A.D.3d 653, 654, 815 N.Y.S.2d 189, quoting Lopez v. Freeport Union Free School Dist., 288 A.D.2d 355, 356, 734 N.Y.S.2d 97;see Siegell v. Herricks Union Free School Dist., 7 A.D.3d 607, 608–609, 777 N.Y.S.2d 148;Schlecker v. Connetquot Cent. School Dist. of Islip, 150 A.D.2d 548, 541 N.Y.S.2d 127). “[W]here ... an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not [a] proximate cause of the injury” ( Soldano v. Bayport–Blue Point Union Free School Dist., 29 A.D.3d 891, 891, 815 N.Y.S.2d 712 [internal quotation marks omitted]; see Walker v. Commack School Dist., 31 A.D.3d 752, 820 N.Y.S.2d 287;Mayer v. Mahopac Cent. School Dist., 29 A.D.3d 653, 815 N.Y.S.2d 189).

Here, the defendant met its prima facie burden of demonstrating that the alleged inadequate supervision was not a proximate cause of the injuries sustained by the injured plaintiff. In opposition, the plaintiffs failed to raise a triable issue of fact as to causation ( see Scarito v. St. Joseph Hill Academy, 62 A.D.3d 773, 775, 878 N.Y.S.2d 460;see also Odekirk v. Bellmore–Merrick Cent. School Dist., 70 A.D.3d 910, 911, 895 N.Y.S.2d 184).

The plaintiffs' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.