Benedict v. Board of Education

286 A.D.2d 971, 730 N.Y.S.2d 765, 2001 N.Y. App. Div. LEXIS 8976

Opinion

—Judgment unanimously affirmed with costs. Memorandum: Plaintiffs commenced this action to recover for personal injuries sustained by their four-year-old son (Thomas) when he fell from gymnasium bleachers owned and maintained by defendant. Defendant interposed a third-party complaint against Thomas’s aunt, alleging that she was negligent in supervising Thomas at the time of the accident. Supreme Court properly granted the motion of third-party defendant for summary judgment dismissing the third-party complaint. Third-party defendant demonstrated her entitlement to judgment as a matter of law by establishing that she did not expressly or implicitly assume a duty to supervise Thomas (see, Hanley v East Moriches Union Free School Dist. II, 275 AD2d 389, 390, lv denied 95 NY2d 769; Pitkewicz v Boy Scouts, 231 AD2d 561, 561-562; Pitkewicz v Kane, 227 AD2d 113, 114), and defendant-third-party plaintiff failed to raise a triable question of fact on that issue (see, Hanley v East Moriches Union Free School Dist. II, supra, at 390; Reed v Pawling Cent. School Dist., 245 AD2d 281, lv denied 91 NY2d 809). (Appeal from Judgment of Supreme Court, Livingston County, Cicoria, J. — Summary Judgment.) Present— Green, J. P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.