Nyala C. v. Miniventures Child Care Development Center, Inc.

133 A.D.3d 467, 18 N.Y.S.3d 863

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 2015
• Docket: 16125 305013/12
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 24, 2015, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Dismissal of the complaint was not warranted, in this action for personal injuries allegedly sustained by the then four-year-old infant plaintiff when she fell off a jungle gym ladder. Triable issues of fact exist as to whether defendants’ employee, who was watching the infant plaintiff prior to the accident, negligently supervised the child. The infant plaintiff testified that she had asked the employee to help her before she fell and that the employee had assisted her with “one or two steps,” before allowing her to descend the ladder’s remaining steps on her own while the employee looked on. However, the employee and another employee testified that the infant plaintiff had never asked for assistance, which was why neither of them helped the child climb down the ladder. Such conflicting testimony as to how the accident happened precludes granting defendants’ motion for summary judgment (see Peuplie v Longwood Cent. School Dist., 49 AD3d 837, 839 [2d Dept 2008]; see also DeRosa v Valentino, 14 AD3d 448 [1st Dept 2005]). Concur — Friedman, J.R, Acosta, Renwick, Andrias and Moskowitz, JJ. [Prior Case History: 2015 NY Slip Op 30407(U).]