PHILLIPE v. CITY OF NEW YORK BOARD OF EDUCATION (1998)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Hutcherson, J.), dated May 4, 1994, which denied their motion for summary judgment on the complaint and granted the defendants' cross motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated October 9, 1996, which denied their motion for reargument.

ORDERED that the appeal from the order dated October 9, 1996, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated May 4, 1994, is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

The plaintiffs' decedent was injured during the course of a spontaneous, pickup football game which took place in the school yard of Intermediate School 383, where he was a student.   Inasmuch as the accident occurred before the start of the school day, no duty of supervision had arisen (see, Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849;  Bennett v. Board of Educ. of the City of N.Y., 16 A.D.2d 651, 226 N.Y.S.2d 593).   Therefore, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint, which was based on a theory of negligent supervision (see, Pratt v. Robinson, supra;  Bennett v. Board of Educ. of City of N.Y., supra).

MEMORANDUM BY THE COURT.