Opinion
23108/2012
05-26-2016
Thierry KOURKOUMELIS, an Infant BY His f/n/g/, Dion KOURKOUMELIS and Dion Kourkoumelis, Individually, Plaintiffs, v. The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, Defendant.
Reibman & Weiner, By: Steven M. Weiner, Esq., 26 Court Street, Brooklyn, New York 11242, Attorney for Plaintiffs. Zachary Carter, Esq., By: Kimberly R. Karseboom, Esq., Corporation Counsel, 350 Jay Street, 8th Floor, Brooklyn, New York 11201, Attorneys for Defendants.
Reibman & Weiner, By: Steven M. Weiner, Esq., 26 Court Street, Brooklyn, New York 11242, Attorney for Plaintiffs.
Zachary Carter, Esq., By: Kimberly R. Karseboom, Esq., Corporation Counsel, 350 Jay Street, 8th Floor, Brooklyn, New York 11201, Attorneys for Defendants.
Lara J. Genovesi, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 1
Opposing Affidavits (Affirmations) 2
Reply Affidavits (Affirmations) 3
Introduction
Defendant, the Department of Education of the City of New York (the City), moves by notice of motion, sequence number two, for an order granting summary judgment pursuant to CPLR section 3212, dismissing the complaint and all claims against the City with prejudice, and for such other and further relief as this Court may deem just and proper. Plaintiffs, Thierry Kourkoumelis (the infant) and Dion Kourkoumelis (collectively plaintiffs), oppose this application.
Background
Plaintiff Thierry Kourkoumelis, a 10-year-old infant and a student at P.S. 170, sustained personal injuries during school recess on March 26, 2012, when he was playing with a basketball in the schoolyard. At the time of the incident, the schoolyard surface consisted of asphalt and contained two basketball hoops, side by side, affixed to the ground by a concrete patch. The concrete patch around the basketball hoop poles appeared as a white square with the pole in the middle. Plaintiff contends that the concrete patches were a half-inch lower than the surrounding asphalt. Directly behind the basketball poles was a low concrete retaining wall with a chain link fence on top; directly behind the fence was a brick wall. The infant testified that he was injured when he took a step to shoot the basketball into the hoop and tripped on the white concrete patch, fell forward and hit his head against the low concrete retaining wall just beyond the basketball pole (see Affirmation in Opposition, Exhibit 1, photographs).
This schoolyard was shortly thereafter excavated to expand the school.
On January 21, 2014, the infant testified at an examination before trial (EBT). He attended P.S. 170 during the time of the accident and regularly played basketball during recess in the schoolyard.
Q. So, before the accident, would it be fair to say you played on that court about every week?
A. Yes.
(Notice of Motion, Exhibit D, Thierry Kourkoumelis EBT, p 22).
The infant further testified that,
Q. Were there any restrictions on how you were supposed to play basketball that day?
A. No, 'cause there was no supervision from anybody. (id. at 28).
Q. How many staff, which would include teachers, paraprofessionals, aids, any staff in the school, were out in the recess yard that day?
....
A. Ms. Mulkerrins. There was no other teacher or staff out there. I didn't know where they were. The only one I saw was Ms. Mulkerrins.
Q. When you saw Ms. Mulkerrins, where was she?
A. About 200 feet away. (id. at 37).
Q. ... Was she standing next to anything identifiable?
A. The door heading into the lunchroom (id. at 38).
Q. When you talked a little bit earlier about a conversation with Ms. Mulkerrins where she was talking about it being cold outside, where did that conversation take place?
A. Right next to the hoop. (Thierry, EBT at 39).
On January 21, 2014, Therese Mulkerrins (Mulkerrins), employed by the Department of Education as the school dean of P.S. 170, testified at an EBT. Mulkerrins testified that she was in the schoolyard on the date of the accident along with a school aide and two paraprofessionals (see Affirmation in Opposition, Exhibit 5, Mulkerrins EBT, p 29). Mulkerrins was in the main square of the school yard supervising approximately 50 children, "walking around, talking with the children, [and] watching them" (Mulkerrins, EBT at 31, 63-64). Although Mulkerrins spent the majority of that recess period around the basketball area, she did not witness the infant's accident, as she was attending to another student at that moment.
Q. How long did it take you to walk from the hoops to the door to let the girl in?
A. I don't think very long. I don't know. A minute, two minutes. I don't know.
Q. And after that one to two minutes of walking that 50 feet - -
A. I don't know if it was a minute or two. I can't say. I walked with her. The minute she asked me I walked. I said to the kids as I left just throw the ball, remember one each. I turned. I walked over to the door, let her in. I turned around, walked about ten feet and blew the whistle for everybody to get on line. At that point he came running towards me with two boys and said I fell. (Mulkerrins, EBT at 41-42).
Plaintiffs' Expert
In opposition to the City's motion for summary judgment, plaintiffs submitted an affidavit of Alphonse J. Heraghty (Heraghty), who has a masters of science in physical education and is a certified playground safety inspector. Heraghty reviewed the deposition testimony in this case, as well as photographs of the schoolyard. Heraghty did not visit the schoolyard, which was excavated after the incident for the installation of additional classrooms. Heraghty opines based on his physical education background that "the activity at issue -- free play with a basketball -- is not an organized athletic activity," therefore, assumption of the risk does not apply (Affirmation in Opposition, Exhibit 10, para 5). Further, he opines that "the defendant's failure to supervise the plaintiff's use of the athletic equipment [basketball] supplied to them was a substantial cause of the plaintiff's fall" (id. at para. 14).
As to the surface of the schoolyard, Heraghty opines that the "outer edge of the footer that holds the upright post is not level with the surrounding play surface." He contends, after review of the photographs, that there is a half inch differential, which "departed from accepted safe practice" and this "significantly increased the probability of a child tripping and falling" (id. at paras. 7 and 21, D). As to the distance between the post and the wall, "prudent and safe practice required that the upright post and the retaining wall and fence beyond the end line of the basketball court at issue should have been covered with protective padding and mats" (id. at para. 15). Heraghty concluded that "the failures and departures described in the affidavit herein and summarized above are all a substantial cause, or proximate cause, of the plaintiff's trip and fall incident herein, and the resulting impact of the plaintiff's head against the concrete retaining wall" (Affirmation in Opposition, Exhibit 10, para. 21, F).
Contentions
In support of its summary judgment motion, the City contends that they are entitled to judgment as a matter of law because plaintiff assumed the risk of injury associated with playing basketball in the schoolyard. The City notes that the infant played basketball during recess in the schoolyard on various occasions. The City argues that the infant assumed the risk of his injuries because the "crack or dip" over which plaintiff tripped and fell and the low retaining wall were open, obvious and readily perceivable. Consequently, the City contends that the infant's assumption of the risk defeats any claim of negligent supervision. Further, the City argues that supervision was adequate and the infant's injuries were a result of a spontaneous and sudden act that no amount of supervision could have prevented. Lastly, the City contends that plaintiff's expert is unqualified to offer an opinion as to the applicability of assumption of the risk or negligent supervision to the instant case and he failed to identify an applicable safety standard or its violation in the construction of the schoolyard.
The City also requested summary judgment relief for the City of New York as a distinct defendant from the Department of Education of the City of New York (DOE). This Court notes that the City of New York is not a named party to this action as evidenced by the Summons and Complaint and Bill of Particulars (see Notice of Motion, Exhibit B and C).
In opposition to the City's motion, plaintiffs contend that the doctrine of assumption of the risk does not apply as the infant and his classmates were "not playing a supervised game, were not on a team, were not practicing for an organized team or league and did not even know how to play with the ball" (Affirmation in Opposition, para. 75). In contrast, the infant was engaged in "unsupervised unstructured free play" which is not covered by the doctrine of assumption of the risk. Further, plaintiffs contend that the infant was unsupervised at the time of the injury. Lastly, plaintiffs contend that the surface of the playing field was "hazardous" as the concrete footer of the basketball pole was not level with the surrounding asphalt causing the infant to trip and fall, hitting his head on a low concrete retaining wall which was an "insufficient" distance from the pole and should have been padded.
Discussion
The proponent for the summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact (see Gammons v. City of New York , 24 NY3d 562, 25 N.E.3d 958 [2014], citing Alvarez v. Prospect Hospital , 68 NY2d 320, 501 N.E.2d 572 [1986] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle , 126 AD3d 111, 2 N.Y.S.3d 132 [2 Dept., 2015], citing Vega v. Restani Const. Corp. , 18 NY3d 499, 965 N.E.2d 240 [2012] ).
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it ‘should only be employed when there is no doubt as to the absence of triable issues’ of material fact" ( Bonaventura v. Galpin, 119 AD3d 625, 988 N.Y.S.2d 866 [2 Dept., 2014], citing Andre v. Pomeroy, 35 NY2d 361, 320 N.E.2d 853 [1974] ). Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Hoover v. New Holland N. Am., Inc. , 23 NY3d 41, 11 N.E.3d 693 [2014] ; see also Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718 [1980] ).
"In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party" ( Boulos v. Lerner-Harrington, 124 AD3d 709, 2 N.Y.S.3d 526 [2 Dept., 2015], citing Pearson v. Dix McBride, LLC, 3 AD3d 895, 883 N.Y.S.3d 53 [2 Dept., 2009] ). "It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact" ( Vega v. Restani Const. Corp. , 18 NY3d 499, supra , citing Sillman v. Twentieth Century—Fox Film Corp. , 3 NY2d 395, 144 N.E.2d 387 [1957] ["Issue-finding, rather than issue-determination, is the key to the procedure"] ).
Assumption of Risk
CPLR section 1411 was enacted by the Legislature in "1975 to abolish contributory negligence and assumption of the risk as absolute defenses in favor of a comparative fault regime" ( Custodi v. Town of Amherst , 20 NY3d 83, 980 N.E.2d 933 [2012] ). CPLR section 1411 provides in relevant part that:
In any action to recover damages for personal injury ... assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages. (CPLR § 1441).
The Court of Appeals in Custodi v. Town of Amherst held that despite the enactment of CPLR section 1411,
a limited vestige of the assumption of the risk doctrine—referred to as ‘primary’ assumption of the risk—survived the enactment of CPLR 1411 as a defense to tort recovery in cases involving certain types of athletic or recreational activities. Rather than operating as a complete defense, the doctrine in the post- CPLR 1411 era has been described in terms of the scope of duty owed to a participant. Under this theory, a plaintiff who freely accepts a known risk ‘commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.’ ( Custodi v. Town of Amherst , 20 NY3d 83, supra , quoting Trupia v. Lake George Cent. School Dist., 14 NY3d 392, 927 N.E.2d 547 [2010] ; see Turcotte v. Fell, 68 NY2d 432, 502 N.E.2d 964 [1986] ; see also Morgan v. State of New York, 90 NY2d 471, 685 N.E.2d 202 [1997] ).
The doctrine of primary assumption of risk applies where a consenting participant in a sporting activity "is aware of the risks [inherent in the activity]; has an appreciation of the nature of the risks; and voluntarily assumes the risks" ( Altagracia v. Harrison Cent. Sch. Dist. , 136 AD3d 848, 24 N.Y.S.3d 764 [2 Dept., 2016], quoting Morgan v. State of New York , 90 NY2d 471, supra ). The Court of Appeals has consistently held that the doctrine is applicable to "a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue," specifically citing "recreational basketball on an outdoor court" ( Custodi v. Town of Amherst , 20 NY3d 83, supra ; see Sykes v. County of Erie , 94 NY2d 912, supra ). A person who chooses to engage in such an activity "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Custodi v. Town of Amherst , 20 NY3d 83, supra , quoting Morgan v. State of New York , 90 NY2d 471, supra ; see Brown v. Roosevelt Union Free Sch. Dist. , 130 AD3d 852, 14 N.Y.S.3d 140 [2 Dept., 2015] ; see also Spiteri v. Bisson , 134 AD3d 799, 20 N.Y.S.3d 429 [2 Dept., 2015] ).
"The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions" ( Bukowski v. Clarkson Univ. , 19 NY3d 353, 948 N.Y.S.2d 568 [2012], citing Sykes v. County of Erie , 94 NY2d 912, 707 N.Y.S.2d 374 [2000] ). "This includes risks associated with the construction of the playing surface and any open and obvious condition on it" ( Mamati v. City of New York Parks & Recreation , 123 AD3d 671, 997 N.Y.S.2d 31 [2 Dept., 2014], citing Ziegelmeyer v. United States Olympic Comm. , 7 NY3d 893, 826 N.Y.S.2d 598 [2006] ; see Safon v. Bellmore-Merrick Cent. High School Dist. , 134 AD3d 1008, 22 N.Y.S.3d 233 [2 Dept., 2015] ). Specifically pertaining to basketball, the Appellate Division, Second Department has held that "risks of playing upon an irregular surface are inherent in outdoor basketball activities" ( Sykes v. County of Erie , 94 NY2d 912, supra ). As a result, participants may be held to have consented to those injury-prone risks that are "known, apparent or reasonably foreseeable" ( Custodi v. Town of Amherst , 20 NY3d 83, supra , quoting Benitez v. New York City Bd. of Educ. , 73 NY2d 650, 541 N.E.2d 29 [1989] ). "However, the doctrine will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased" ( Altagracia v. Harrison Cent. Sch. Dist. , 136 AD3d 848, supra ; see Georgiades v. Nassau Equestrian Ctr. at Old Mill, Inc. , 134 AD3d 887, 22 N.Y.S.3d 467 [2 Dept., 2015], citing Custodi v. Town of Amherst , 20 NY3d 83, supra ).
Recently, the Appellate Division, Second Department in Altagracia v. Harrison Central School , applied the doctrine of primary assumption of the risk wherein the infant plaintiff was injured while he was playing basketball during recess on school grounds and hit his head on the pole, which supported the basketball hoop ( 136 AD3d 848, supra ). The Appellate Division held that "the subject pole was open and apparent, that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard, that the defendant did nothing to conceal or unreasonably increase the risk, and that the plaintiff assumed the risk of injury by voluntarily participating in the activity at that location as he had on numerous prior occasions" (id. ). Further, that Court held that plaintiff failed to raise a triable issue of fact wherein "[h]e did not submit any evidence in support of his contentions that padding of the subject pole was required and that the absence of padding created a risk beyond those that were inherent in the subject activity and voluntarily assumed by the plaintiff" ( Altagracia v. Harrison Cent. Sch. Dist., 136 AD3d 848, supra ).
Similarly, the Appellate Division, Second Department in Perez v. New York City Dept. of Educ. , granted summary judgment against an injured plaintiff where the plaintiff was playing basketball in a school gymnasium and his "arm went through and shattered a pane of glass in one of the entrance doors to the gymnasium, which was situated beyond the baseline" ( 115 AD3d 921, 982 N.Y.S.2d 577 [2 Dept., 2014] ). The court held that "based in part on the proximity of the court to the entrance doors, the defendants established their entitlement to judgment as a matter of law by demonstrating that the injured plaintiff had assumed the obvious and inherent risk of coming into contact with the pane of glass in the entrance door by electing to play basketball on that court" (id. ).
In the instant case, the City met its prima facie burden, establishing entitlement to summary judgment as a matter of law. The City provided the infant's EBT, wherein the infant testified that he was playing basketball during recess in the schoolyard as he had done on numerous occasions. The infant was a voluntary participant in the recreational game during his recess period and consented to the risks associated with the construction of the playing surface and any open and obvious conditions on it. The white concrete square patch, which cemented in the basketball pole, and the low retaining wall in the instant case were open, obvious and apparent. The white color of the concrete differentiated it from the surrounding schoolyard asphalt. The risk of tripping on the concrete patch and colliding with the low retaining wall was inherent in the activity of playing basketball in that particular schoolyard, which the City did nothing to conceal or unreasonably increase the risk of injury. Therefore, "the plaintiff assumed the risk of injury by voluntarily participating in the activity at that location as he had on numerous prior occasions" ( Altagracia v. Harrison Cent. Sch. Dist. , 136 AD3d 848, supra ).
In opposition, plaintiffs fail to raise a triable issue of fact. Plaintiffs contend that the doctrine of assumption of the risk does not apply to the instant case as the infant along with his classmates were "not playing a supervised game, were not on a team, were not practicing for an organized team or league and did not even know how to play with the ball" (Affirmation in Opposition, para. 75). Plaintiffs cite, Duffy v. Long Beach City Sch. Dist. for the proposition that the infant was engaging in "free play," therefore, assumption of the risk does not apply ( 134 AD3d 761, 22 N.Y.S.3d 88 [2 Dept., 2015] ). In Duffy , the infant along with his fellow teammates were unsupervised and waiting for practice to commence when they began taking turns using a piece of practice equipment to catapult each other into the air (id. ). The court in Duffy held that primary assumption of the risk did not apply "[a]s with the ‘horseplay’ at issue in Trupia, the use of the blocking sled to catapult each other into the air is not the sort of ‘socially valuable voluntary activity’ that the doctrine seeks to encourage" (id. ). The court further held that the risk sustaining injury was not a "commonly appreciated risk" which was "inherent in and arises out of the sport generally and flows from participation in said sport" (id. ).
In the instant case, unlike Duffy , the infant was engaging in a "recreative activity that was ... supported by the defendant" ( Custodi v. Town of Amherst , 20 NY3d 83, supra ). Further, as stated above, the risk of tripping and falling into the low retaining wall was inherent in the activity of playing basketball in that particular schoolyard. Unlike Duffy , in the instant case, the risk of sustaining an injury was a "commonly appreciated risk" which the infant assumed voluntarily by participating in the sporting activity on at least a weekly basis.
In further opposition, plaintiff contends that the playing field was "hazardous" as the concrete footer of the basketball pole was not level with the surrounding asphalt, the retaining wall was an "insufficient" distance from the pole and the wall was not padded. Plaintiff's submitted the Heraghty affidavit to support these contentions. "[A]n expert's affidavit proffered as the sole evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor" ( Romano v. Stanley , 90 NY2d 444, 684 N.E.2d 19 [1997] ; see Adamy v. Ziriakus, 92 NY2d 396, 704 N.E.2d 216 [1998] ; Ramos v. Howard Industries, Inc., 10 NY3d 218, 885 N.E.2d 176 [2008] ). "Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment" ( Buchholz v. Trump 767 Fifth Ave., LLC, 5 NY3d 1, 831 N.E.2d 960 [2005], citing Diaz v. New York Downtown Hosp., 99 NY2d 542, 784 N.E.2d 68 [2002] ).
"Ordinarily, the opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants" ( Murphy v. Connor, 84 NY2d 969, 646 N.E.2d 7964 [1994] ; see also Diaz v. New York Downtown Hosp., 99 NY2d 542, supra ). Where a plaintiff's expert affidavit contains only bare conclusory assertions in respect to industry-wide standards, it is insufficient to raise a triable issue of fact (see Amatulli by Amatulli v. Delhi Const. Corp., 77 NY2d 525, 571 N.E.2d 645 [1991] ; Scott v. 11 West 19th Associates, LLC, 125 AD3d 749, 4 N.Y.S.3d 235 [2 Dept., 2015] ; Settimo v. City of New York, 61 A.D3d 840, 878 N.Y.S.2d 89 [2 Dept., 2009] ).
Before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place. Nor are mere non-mandatory guidelines and recommendations sufficient [internal citations omitted]. The expert must offer concrete proof of the existence of the relied-upon standard as of the relevant time, such as "a published industry or professional standard or ... evidence that such a practice had been generally accepted in the relevant industry" at the relevant time
( Hotaling v. City of New York, 55 AD3d 396, 866 N.Y.S.2d 117 [1 Dept., 2008] aff'd, 12 NY3d 862, 909 N.E.2d 577 [2009], citing Capotosto v. Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 767 N.Y.S.2d 857 [2 Dept., 2003] ; see Diaz v. New York Downtown Hosp., 99 NY2d 542, supra ).
In the instant case, Heraghty's affidavit is insufficient to raise a triable issue of fact and defeat summary judgment. Heraghty's assertions are speculative and unsupported by any evidentiary foundation. Heraghty's bare conclusory assertion that the infant's injuries were caused by a deviation of "accepted safe practice" is insufficient to defeat summary judgment. He fails to state the industry-wide standard that was applicable at the time this schoolyard was built that supports his contention that the retaining wall was an "insufficient" distance from the pole ( Perez v. New York City Dept. of Educ. , 115 AD3d 921, supra [where "[t]he affidavit of the plaintiffs' expert that was submitted in opposition to the motion relied on nonmandatory, nonexclusive guidelines with respect to the proximity of the door to the court and the door's lack of padding and, thus, was insufficient to raise a triable issue of fact"] ). Furthermore, neither plaintiffs nor Heraghty submitted any evidence in support of their contention that the low retaining wall required padding "and that the absence of padding created a risk beyond those that were inherent in the subject activity and voluntarily assumed by the plaintiff" ( Altagracia v. Harrison Cent. Sch. Dist., 136 AD3d 848, supra ).
Negligent Supervision
"It is well settled that a school owes a common-law duty to adequately supervise its students. This duty ‘stems from the fact of its physical custody over them’ " ( Stephenson v. City of New York , 19 NY3d 1031, 978 N.E.2d 1251 [2012], citing Pratt v. Robinson, 39 NY2d 554, 349 N.E.2d 849 [1976] ). "The standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information" ( Nevaeh T. v. City of New York, 132 AD3d 840, 18 N.Y.S.3d 415 [2 Dept., 2015], quoting Timothy Mc. v. Beacon City Sch. Dist., 127 AD3d 826, 7 N.Y.S.3d 348 [2 Dept., 2015] ; see Stephenson v. City of New York , 19 NY3d 1031, supra , quoting Mirand v. City of New York , 84 NY2d 44, 637 N.E.2d 263 [1994] ["the nature of the duty is that the school must ‘exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances’ "] ). Therefore, schools "will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ( Baez v. City of New Rochelle, 128 AD3d 993, 8 N.Y.S.3d 601 [2 Dept., 2015], quoting Mirand v. City of New York , supra ; see Lennon v. Cornwall Cent. Sch. Dist. , 132 AD3d 820, 18 N.Y.S.3d 139 [2 Dept., 2015] ; Gilman v. Oceanside Union Free School Dist., 106 AD3d 952, 966 N.Y.S.2d 460 [2 Dept., 2013] ).
"Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students" (Binani v. City of New York, 131 AD3d 1080, 16 N.Y.S.2d 610 [2 Dept., 2015], citing Mirand v. City of New York , 84 NY2d 44, supra ; see Lawes v. Board of Educ. Of City of NY, 16 NY2d 302, 213 N.E.2d 667 [1965] ). "Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [s]chool defendants is warranted" ( Baez v. City of New Rochelle, 128 AD3d 993, supra , quoting Convey v. City of Rye School Dist. , 271 AD2d 154, 710 N.Y.S.2d 641 [2 Dept., 2000] ; see Scavelli v. Town of Carmel, 131 AD3d 688, 15 N.Y.S.3d 214 [2 Dept., 2015] ; Gilman v. Oceanside Union Free School Dist., 106 AD3d 952, supra ; Luciano v. Our Lady of Sorrows School , 79 AD3d 705, 911 N.Y.S.2d 911 [2 Dept., 2010] ).
In the instant case, the City established that plaintiff's accident was a spontaneous and unforeseen act, which no amount of supervision could have prevented. The infant and Mulkerrins testified at their EBT's that Mulkerrins was directly supervising the area of the schoolyard in which the infant was injured. The infant testified that the accident occurred when he was trying to shoot the ball and tripped on the concrete patch holding the basketball pole and fell into the low retaining wall. At the time of the accident, Mulkerrins turned from the basketball area to attend to another student. In the one to two minutes that she attended to another student and walked away from the immediate basketball area, the infant was injured.
In opposition, plaintiffs failed to raise a triable issue of fact. Plaintiffs' contention that there was no supervision while the students were playing in the schoolyard is without merit. The infant testified at his EBT that Mulkerrins was in the immediate vicinity of the schoolyard where he was playing. Mulkerrins in turn testified at her EBT that she had predominately stayed at the basketball area, supervising 50 students, throughout the recess period and walked away to attend to another student for a minute or two when the accident occurred. Furthermore, "the incident occurred suddenly, and even the most intense supervision could not have prevented it. Hence, any alleged lack of supervision was not the proximate cause of the injured plaintiff's injuries" ( Perez v. New York City Dept. of Educ. , 115 AD3d 921, supra ).
Conclusion
The City's motion for summary judgment is granted inasmuch as the doctrine of assumption of the risk applies, the City did not negligently supervise the infant and the infant's accident was a spontaneous and sudden act that no amount of supervision could have prevented. In opposition, plaintiffs failed to raise a triable issue of fact. The foregoing constitutes the decision and order of this Court.