Robinson v. City of New York

37 A.D.3d 447, 829 N.Y.S.2d 599

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2007
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated July 22, 2005, which granted the defendants’ motion, inter alia, for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion, inter alia, for summary judgment dismissing the complaint is denied.

The infant plaintiff, a student at IS 285 in Brooklyn, allegedly was assaulted and injured by two other students on school grounds, at about 3:30 p.m. on February 10, 2003.

The defendants failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), and the Supreme Court should have denied their motion, inter alia, for summary judgment dismissing the complaint. In support of their motion, the defendants submitted, and relied upon, a copy of the transcript of the plaintiff mother’s examination pursuant to General Municipal Law § 50-h. However, a page of that transcript was missing. According to the plaintiffs, the missing page captured the mother’s testimony that there was a school dismissal security plan in place at the subject school which was not followed at the time the infant plaintiff was assaulted.

The defendants’ remaining contentions are without merit.

We reject the plaintiffs’ request that we search the record and award them summary judgment on the issue of liability (see CPLR 3212 [b]). Miller, J.R, Florio, Dillon and Angiolillo, JJ., concur.