Opinion
Argued January 4, 2000
February 10, 2000
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Lonschein, J.), entered November 16, 1998, which, upon the granting of the defendant's motion made at the close of the plaintiffs' case for judgment as a matter of law, is in favor of the defendant and against them dismissing the complaint.
Herschel Kulefsky, New York, N.Y. (Ephrem Wertenteil of counsel), for appellants.
Epstein Hill Grammatico Gann (Gallagher, Walker, Bianco Plastaras, Mineola, N.Y. [Dominic P. Bianco] of counsel), for respondent.
DAVID S. RITTER, J.P. MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN and GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, the defendant's motion is denied, the complaint is reinstated, and a new trial is granted, with costs to abide the event.
Although the defendant, who was caring for the infant plaintiff and several other children in her home, was not an insurer of the children entrusted to her care, she was under a duty to adequately supervise such children, and can be held liable for foreseeable injuries proximately related to the lack of adequate supervision (see, Breland v. Flushing YMCA, 245 A.D.2d 410 ). Under the circumstances of this case, the defendant did not demonstrate prima facie entitlement to judgment as a matter of law, since a question of fact exists as to whether the defendant adequately supervised the infant plaintiff on the day in question (see, Breland v. Flushing YMCA, supra; Zuckerman v. City of New York, 49 N.Y.2d 557 ).
Futhermore, while an extraordinary and unforeseeable act will sever the causal connection between a defendant's actions and a plaintiff' s injuries, the issue of whether an injury-producing act was foreseeable is typically a question for the trier of fact to resolve (see, Dennis v. City of New York, 205 A.D.2d 577, 578 ; see also, Broad v. Patico Corp., 243 A.D.2d 434 ; Ceglia v. Portledge School, 187 A.D.2d 550 ). The defendant testified, as a witness called by the plaintiffs, that she was aware that the older children were running in the living room and might potentially harm each other. This created an issue of fact as to whether it was foreseeable that the infant plaintiff's older brother would fall on her, causing injury (see, Dennis v. City of New York, supra). The trial court therefore erred in granting the defendant's motion for judgment as a matter of law.