Opinion
2012-05-1
Bernardo BENAVIDES, etc., appellant, v. UNIONDALE UNION FREE SCHOOL DISTRICT, respondent.
Andrew C. Laufer, PLLC (Stephen D. Chakwin, Jr., and Janet R. Chakwin, New York, N.Y., of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser and Gregory A. Cascino of counsel), for respondent.
Andrew C. Laufer, PLLC (Stephen D. Chakwin, Jr., and Janet R. Chakwin, New York, N.Y., of counsel), for appellant. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser and Gregory A. Cascino of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (DeStefano, J.), entered June 16, 2011, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
In April 2008 the plaintiff Bernardo Benavides, who was then a second-grade student at Northern Parkway School (hereinafter the school) in the defendant Uniondale Union Free School District, allegedly was injured when he was pushed down a slide by a fellow student in the school playground during a lunch recess period. The fellow student allegedly proceeded down the slide and landed on top of the plaintiff. The plaintiff, by his mother and natural guardian, commenced this action, and the defendant moved for summary judgment dismissing the complaint.
“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” ( Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263; see Nash v. Port Wash. Union Free School Dist., 83 A.D.3d 136, 146, 922 N.Y.S.2d 408; Troiani v. White Plains City School Dist., 64 A.D.3d 701, 702, 882 N.Y.S.2d 519; Calcagno v. John F. Kennedy Intermediate School, 61 A.D.3d 911, 912, 877 N.Y.S.2d 455; Swan v. Town of Brookhaven, 32 A.D.3d 1012, 1013, 821 N.Y.S.2d 265). “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable ‘for every thoughtless or careless act by which one pupil may injure another’ ” ( Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263, quoting Lawes v. Board of Educ. of City of N.Y., 16 N.Y.2d 302, 306, 266 N.Y.S.2d 364, 213 N.E.2d 667; see Nash v. Port Wash. Union Free School Dist., 83 A.D.3d at 146–147, 922 N.Y.S.2d 408; Armellino v. Thomase, 72 A.D.3d 849, 849–850, 899 N.Y.S.2d 339; Paca v. City of New York, 51 A.D.3d 991, 992, 858 N.Y.S.2d 772; De Los Santos v. New York City Dept. of Educ., 42 A.D.3d 422, 422, 840 N.Y.S.2d 91).
Here, the defendant established its prima facie entitlement to judgment as a matter of law by presenting evidence that there was adequate playground supervision, and that the level of supervision was not a proximate cause of the subject accident ( see Calcagno v. John F. Kennedy Intermediate School, 61 A.D.3d at 912, 877 N.Y.S.2d 455; Conte v. Minnesauke Elementary School, 56 A.D.3d 511, 866 N.Y.S.2d 872; Miller v. Kings Park Cent. School Dist., 54 A.D.3d 314, 315, 863 N.Y.S.2d 232; Swan v. Town of Brookhaven, 32 A.D.3d at 1013, 821 N.Y.S.2d 265; Navarra v. Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 A.D.2d 211, 733 N.Y.S.2d 730). In opposition, the plaintiff failed to raise a triable issue of fact ( see Swan v. Town of Brookhaven, 32 A.D.3d at 1013–1014, 821 N.Y.S.2d 265).
The plaintiff's contention that his testimony at his deposition and at a hearing pursuant to General Municipal Law § 50–h did not constitute “admissible evidence” because of his age is improperly raised for the first time on appeal and, therefore, is not properly before this Court. Contrary to the plaintiff's contention, this does not present a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture ( see NYU Hosp. for Joint Diseases v. Country Wide Ins. Co., 84 A.D.3d 1043, 1044, 925 N.Y.S.2d 89).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.