Phillipe v. City of New York Board of Education

254 A.D.2d 339, 678 N.Y.S.2d 662, 1998 N.Y. App. Div. LEXIS 10751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Hutcherson, J.), dated May 4, 1994, which denied their motion for summary judgment on the complaint and granted the defendants’ cross motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated October 9, 1996, which denied their motion for re-argument.

Ordered that the appeal from the order dated October 9, 1996, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated May 4, 1994, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The plaintiffs’ decedent was injured during the course of a spontaneous, pickup football game which took place in the school yard of Intermediate School 383, where he was a student. Inasmuch as the accident occurred before the start of the school day, no duty of supervision had arisen (see, Pratt v Robinson, 39 NY2d 554, 560; Bennett v Board of Educ., 16 AD2d 651). Therefore, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint, which was based on a theory of negligent supervision (see, Pratt v Robinson, supra; Bennett v Board of Educ., supra). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.