Huertas v. Our Lady of Refuge Parochial School

273 A.D.2d 79, 709 N.Y.S.2d 66, 2000 N.Y. App. Div. LEXIS 6581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 2000
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about April 26, 1999, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs seek to recover for injuries sustained by the infant plaintiff when, during an elementary school recess period on a closed-off city street, she was pushed by a fellow student and fell, hitting her head on the street curb. Although plaintiffs maintain that the infant plaintiffs harm is attributable to defendant school’s failure to meet its obligation to supervise the recess period adequately, the evidence shows that the recess was in fact supervised by a teacher and several parent aides, and no issue is raised as to whether that level of supervision was adequate under the circumstances. Moreover, the facts afford no reason to suppose that a higher level of supervision would have prevented plaintiff’s injury. Indeed, the impulsive, careless act of the infant plaintiff’s co-student in the course of ordinary recess play activities was not the sort of conduct foreseeably related to supervisory inadequacy that schools may be fairly charged with preventing (see, Mirand v City of New York, 84 NY2d 44, 49; Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650). Concur — Rosenberger, J. P., Nardelli, Ellerin, Andrias and Saxe, JJ.