Opinion
2003-02334.
Decided June 7, 2004.
In an action to recover damages for personal injuries, etc., the defendant Yonkers Board of Education appeals from an order of the Supreme Court, Westchester County (Murphy, J.), entered March 6, 2003, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Frank J. Rubino, Yonkers, N.Y. (Michael Levinson of counsel), for appellant.
Cascione, Purcigliotti Galluzzi, P.C. (Mischel, Neuman Horn, P.C., New York, N.Y. [Scott T. Horn of counsel), for respondents.
Before: SONDRA MILLER, J.P., THOMAS A. ADAMS, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The appellant demonstrated, prima facie, its entitlement to judgment as a matter of law by showing that there was adequate playground supervision and, in any event, that the level of supervision was not the proximate cause of the incident ( see Reuveni v. BECEC, Inc., 5 A.D.3d 367; Cranston v. Nyack Pub. Schools, 303 A.D.2d 441; Navarra v. Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 A.D.2d 211). In response, the plaintiffs raised a triable issue of fact as to whether the appellant should have permitted the injured infant plaintiff to participate in an athletic activity during recess ( see Mirand v. City of New York, 84 N.Y.2d 44; Pacella v. Masone, 262 A.D.2d 291).
S. MILLER, J.P., ADAMS, COZIER and RIVERA, JJ., concur.