Opinion
Argued March 21, 1977
Decided April 26, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, FREDERIC E. HAMMER, J.
W. Bernard Richland, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for appellant.
Joseph P. Napoli and Sherman P. Rothman for respondent.
MEMORANDUM. The order of the Appellate Division should be reversed.
Upon our review of the facts in this record, as set forth in the dissenting opinion of Mr. Justice COHALAN at the Appellate Division, it is apparent that the plaintiff failed to establish a prima facie case at trial. There was no showing of negligence or lack of due care on the part of the defendant board of education. Therefore, the defendants' motion to dismiss the complaint, made at the end of the entire case, should have been granted.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order reversed, with costs, and the complaint dismissed in a memorandum.