Botti v. Seaford Harbor Elementary School District 6

24 A.D.3d 486, 808 N.Y.S.2d 236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated October 27, 2004, as denied that branch of their motion which was for summary judgment dismissing the cause of action to recover damages for negligent supervision.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

The infant plaintiff was injured when, during a school recess, she fell from monkey bars in the defendants’ playground while swinging on their rings. The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that there was adequate playground supervision and that a lack of supervision was not the proximate cause of the accident (see Davidson v Sachem Cent. School Dist., 300 AD2d 276 [2002]). The plaintiffs’ evidence that an aide saw the infant plaintiff fall from the apparatus on two prior occasions and may have encouraged her to continue to use the apparatus was insufficient to raise a triable issue of fact as the plaintiff was engaged in normal play at the time of the accident (see Biondolillo v City of New York, 13 AD3d 568 [2004]; Berdecia v City of New York, 289 AD2d 354 [2001]; Navarra v Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 AD2d 211 [2001]). Thus, the defendants’ motion should have been granted and the complaint dismissed. Adams, J.P., Luciano, Mastro and Skelos, JJ., concur.