WUEST v. BOARD OF EDUCATION OF MIDDLE COUNTRY CENTRAL SCHOOL DISTRICT (2002)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Suffolk County (Kitson, J.), dated September 24, 2001, as granted the defendants' motion for summary judgment dismissing the complaint, (2) a judgment of the same court, dated October 24, 2001, as dismissed the complaint, and (3) an order of the same court, dated January 16, 2002, as, upon granting the plaintiffs' motion for leave to renew, adhered to the original determination.

ORDERED that the appeal from the order dated September 24, 2001, is dismissed;  and it is further,

ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the order dated January 16, 2002, made upon renewal;  and it is further,

ORDERED that the order dated January 16, 2002, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the order dated January 16, 2002, which supersedes the judgment in the action (see CPLR 5501[a][1] ).

The infant plaintiff (hereinafter the plaintiff) allegedly was injured during his 11th grade physical education class when he collided with another student during an indoor soccer game.   Contrary to the plaintiffs' contention, the alleged inadequate supervision by the defendants' employee was not a proximate cause of the plaintiff's injuries.   Rather, the injuries were the result of a spontaneous and unforeseeable act committed by a fellow high school student when the two collided in an attempt to control the ball (see Sangineto v. Mamaroneck U.F.S.D., 282 A.D.2d 596, 723 N.Y.S.2d 234;  Shabot v. East Ramapo School Dist., 269 A.D.2d 587, 703 N.Y.S.2d 268;  Checchia v. Port Washington U.F.S.D., 253 A.D.2d 839, 678 N.Y.S.2d 367).