Opinion
October 5, 1990
Appeal from the Supreme Court, Onondaga County, Lowery, Jr., J.
Present — Callahan, J.P., Denman, Boomer, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Defendant's motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]) was properly denied because the complaint states a valid cause of action for negligence. When a person, other than a parent, undertakes to control, care for, or supervise an infant, such person is required to use reasonable care to protect the infant over whom he or she has assumed temporary custody or control, and such person may be liable for any injury sustained by the infant which was proximately caused by such person's negligence (see, Zalak v. Carroll, 15 N.Y.2d 753, 754; Broome v. Horton, 53 A.D.2d 1030, affg 83 Misc.2d 1002; Barrera v. General Elec. Co., 84 Misc.2d 901). Here, the complaint alleged that defendant, who was entrusted with the temporary care and supervision of the infant plaintiff, negligently supervised and controlled the infant, and that, as a result, he sustained physical and psychological injuries.
Similarly, we affirm Supreme Court's denial of defendant's motion for summary judgment. Under the circumstances of this case, whether defendant, then 12 years of age, was negligent presents issues of fact which cannot be resolved on a motion for summary judgment (see, Neumann v. Shlansky, 58 Misc.2d 128, 131, affd 63 Misc.2d 587, affd 36 A.D.2d 540).