PEREZ v. The City of New York, Defendant. (2002)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 27, 2001, which, insofar as appealed from, granted defendant-respondent's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The infant plaintiff, a second grader, was standing near the cubbies in his classroom where students stored their personal belongings and supplies when he was accidentally poked in the eye with a sharpened pencil by another student as she attempted to detach a removable eraser from the pencil.   The action was properly dismissed for plaintiffs' failure to rebut defendant school board's prima facie showing that no accidents like this had ever happened before (see, Ohman v. Board of Educ., 300 N.Y. 306, 310, 90 N.E.2d 474).   To hold defendant responsible for this accident would be to require it to continuously supervise virtually all of the movements and activities of its students, making it, in effect, an insurer of its students' safety (id., at 309, 90 N.E.2d 474;  see, Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  cf., e.g., Malik v. Greater Johnstown Enlarged School Dist., 248 A.D.2d 774, 669 N.Y.S.2d 729;  Ascher v. Scarsdale School Dist., 267 A.D.2d 339, 700 N.Y.S.2d 210).