M v. v. City of New York

2017 NY Slip Op 3131, 149 A.D.3d 641, 52 N.Y.S.3d 362

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2017
• Docket: 3827
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 23, 2015, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was proper in this action where the infant plaintiff was injured when, while he was participating in a game of tag, a fellow classmate “accidentally bumped” into him, causing him to crash into the wall of the gymnasium. Plaintiff’s own testimony as to how the accident occurred demonstrates that no additional supervision could have prevented his injury (see Jorge C. v City of New York, 128 AD3d 410, 411 [1st Dept 2015]).

Furthermore, the infant plaintiff’s accident was caused by the “spontaneous act of one student running directly into another student in an effort to avoid being tagged,” which could not reasonably have been foreseen or prevented, and thus would not result in the school being held liable (Lizardo v Board of Educ. of the City of N.Y., 77 AD3d 437, 438 [1st Dept 2010]).

The affidavit of plaintiff’s expert contained opinions not based in the record (see Chung v New York City Bd. of Educ., 136 AD3d 608, 609 [1st Dept 2016]), and was otherwise insufficient to raise a triable issue as to the adequacy of defendants’ supervision or the safety of the facilities (see David v County of Suffolk, 1 NY3d 525 [2003]; Greenberg v Peekskill City School Dist., 255 AD2d 487, 488 [2d Dept 1998]).

Concur — Tom, J.P., Mazzarelli, Andrias, Manzanet-Daniels and Webber, JJ.