Opinion
(1143) CA 01-00695.
September 28, 2001.
(Appeal from Judgment of Supreme Court, Livingston County, Cicoria, J. — Summary Judgment.)
PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, KEHOE AND GORSKI, JJ.
Judgment unanimously affirmed with costs.
Memorandum:
Plaintiffs commenced this action to recover for personal injuries sustained by their four-year-old son (Thomas) when he fell from gymnasium bleachers owned and maintained by defendant. Defendant interposed a third-party complaint against Thomas's aunt, alleging that she was negligent in supervising Thomas at the time of the accident. Supreme Court properly granted the motion of third-party defendant for summary judgment dismissing the third-party complaint. Third-party defendant demonstrated her entitlement to judgment as a matter of law by establishing that she did not expressly or implicitly assume a duty to supervise Thomas ( see, Hanley v. East Moriches Union Free School Dist. II, 275 A.D.2d 389, 390, lv denied 95 N.Y.2d 769; Pitkewicz v. Boy Scouts of Am., 231 A.D.2d 561, 561-562; Pitkewicz v. Kane, 227 A.D.2d 113, 114), and defendant-third-party plaintiff failed to raise a triable question of fact on that issue ( see, Hanley v. East Moriches Union Free School Dist. II, supra, at 390; Reed v. Pawling Cent. School Dist., 245 A.D.2d 281, lv denied 91 N.Y.2d 809).