Oldham v. Eastport Union Free School District

26 A.D.3d 480, 809 N.Y.S.2d 461

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated May 23, 2005, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

While a school is not the insurer of the safety of students (see Mirand v City of New York, 84 NY2d 44, 49 [1994]), a school owes a duty to adequately supervise students in its care and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (see Mirand v City of New York, supra; Ghaffari v North Rockland Cent. School Dist., 23 AD3d 342 [2005]; Rivera v Board of Educ. of City of Yonkers, 19 AD3d 394, 395 [2005]; Doe v Rohan, 17 AD3d 509, 511 [2005], lv denied 6 NY3d 701 [2005]). In support of their motion for summary judgment, the defendants failed to establish their prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (id.). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Florio, J.P., Skelos, Fisher and Lunn, JJ., concur.