Opinion
2017–07606 Index No. 6262/14
05-23-2018
Luca G. GERALDI, etc., respondent, v. MERRICK UNION FREE SCHOOL DISTRICT, appellant.
Congdon, Flaherty, O'Callghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser and Kathleen D. Foley of counsel), for appellant. The Law Offices of Thomas F. Liotti, LLC, Garden City, NY, for respondent.
Congdon, Flaherty, O'Callghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser and Kathleen D. Foley of counsel), for appellant.
The Law Offices of Thomas F. Liotti, LLC, Garden City, NY, for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Anna R. Anzalone, J.), entered May 30, 2017. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff alleges that on September 9, 2013, when he was five years old and in a kindergarten class at the Birch Elementary School in Merrick, he fell from monkey bars while on one of the school's playgrounds and broke his left arm. The plaintiff's father commenced this personal injury action on behalf of the plaintiff against the defendant, Merrick Union Free School District, alleging negligent supervision. The defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendant appeals.
Contrary to the defendant's contention, it failed to demonstrate that the plaintiff was adequately supervised at the time of the subject accident or that its alleged negligent supervision was not a proximate cause of the subject accident (see J.M. v. North Babylon Union Free Sch. Dist. , 145 A.D.3d 978, 42 N.Y.S.3d 860 ; Pochat v. Monroe Woodbury Cent. Sch. Dist. , 135 A.D.3d 727, 728, 23 N.Y.S.3d 301 ; see also Vonungern v. Morris Cent. School , 240 A.D.2d 926, 928, 658 N.Y.S.2d 760 ). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint, it is unnecessary to consider the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The defendant's remaining contention is not properly before this Court (see generally NYCTL 2011–A Trust v. Master Sheet Co. , 150 A.D.3d 755, 756, 54 N.Y.S.3d 422 ; Glassman v. ProHealth Ambulatory Surgery Ctr., Inc. , 96 A.D.3d 801, 801–802, 946 N.Y.S.2d 609 ).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.
MASTRO, J.P., BALKIN, COHEN and DUFFY, JJ., concur.