Thomas v. Elmont Union Free School District

266 A.D.2d 386, 697 N.Y.S.2d 526, 1999 N.Y. App. Div. LEXIS 11515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Levitt, J.), entered July 9, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The infant plaintiff’s own testimony was sufficient to establish the defendant’s prima facie case that it did not violate any duty of supervision it owed to him (see generally, Mirand v City of New York, 84 NY2d 44, 49; Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650). The burden therefore shifted to the plaintiffs to show the existence of a triable factual issue on this matter. Since they failed to do so, the Supreme Court properly granted summary judgment to the defendant (see generally, Alvarez v Prospect Hosp., 68 NY2d 320).

The plaintiffs’ remaining contentions are without merit. Altman, J. P., Florio, H. Miller and Schmidt, JJ., concur.