A.R., an Infant by her Mother and Natural Guardian, Jenny A., et al., Plaintiffs–Respondents, v. Board of Education of the City of New York, et al., Defendants–Appellants. (2019)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered April 5, 2018, which, insofar as appealed from, denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The infant plaintiff, then 11 years old, claims that she was injured when she was accidently pushed by another student while playing on the bleachers in an area next to her school.  Infant plaintiff testified that students regularly went to the bleacher area when the school bus arrived early, and that no effort was made to prevent them from accessing the bleachers despite a school social worker's testimony that students were not permitted to play in that area.  On the day of the accident, infant plaintiff was playing on the bleachers for about 10 to 20 minutes before she was injured.

Under these circumstances, the motion court properly found that triable issues of fact exist as to whether defendants adequately supervised infant plaintiff in allowing her and her classmates to play on the bleachers and whether adequate supervision would have prevented the accident (see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994];  Smith v. City of New York, 84 A.D.3d 631, 632, 923 N.Y.S.2d 504 [1st Dept. 2011];  Oliverio v. Lawrence Pub. Schools, 23 A.D.3d 633, 805 N.Y.S.2d 638 [2d Dept. 2005] ).