BROWN v. CITY OF NEW YORK (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Consuelo Mallafre Melendez, J.), dated August 2, 2022.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff allegedly sustained personal injuries when he attempted to do a cartwheel during a “free style dance” portion of his fourth-grade gym class at school.  Thereafter, the infant plaintiff, by his mother and natural guardian, and his mother suing derivatively, commenced this action against the defendants, inter alia, to recover damages for personal injuries.  The defendants moved for summary judgment dismissing the complaint.  In an order dated August 2, 2022, the Supreme Court granted the motion.  The plaintiffs appeal.

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  see D.M. v. Yonkers City Sch. Dist., 220 A.D.3d 672, 672, 195 N.Y.S.3d 811).  “A school, however, is not an insurer of its students’ safety and will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision” (Paragas v. Comsewogue Union Free School Dist., 65 A.D.3d 1111, 1111, 885 N.Y.S.2d 128;  see Acosta v. Yonkers Pub. Schs., 228 A.D.3d 711, 213 N.Y.S.3d 421).  “ ‘Moreover, where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury’ ” (S.T. v. Island Park Union Free Sch. Dist., 225 A.D.3d 924, 925–926, 207 N.Y.S.3d 674, quoting Santos v. City of New York, 138 A.D.3d 968, 969, 30 N.Y.S.3d 258).

Here, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.  The defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting, among other things, a transcript of the deposition testimony of the gym class teacher, which established, prima facie, that the infant plaintiff was adequately supervised and that, in any event, the alleged inadequacy in the level of supervision was not a proximate cause of the infant plaintiff's injuries (see Acosta v. Yonkers Pub. Schs., 228 A.D.3d at 712, 213 N.Y.S.3d 421;  M.X. v. City of New Rochelle, 218 A.D.3d 519, 520–521, 193 N.Y.S.3d 82;  J.F. v. Brentwood Union Free Sch. Dist., 184 A.D.3d 806, 807, 124 N.Y.S.3d 564;  Gonzalez v. South Huntington Union Free Sch. Dist., 176 A.D.3d 920, 920, 112 N.Y.S.3d 151;  Ascher v. Scarsdale School Dist., 267 A.D.2d 339, 339, 700 N.Y.S.2d 210).

In opposition, the plaintiffs failed to raise a triable issue of fact.  Contrary to the plaintiffs’ contention, the Supreme Court properly considered the unsigned but certified transcript of the deposition testimony of the gym class teacher in determining the defendants’ motion (see Siyunova v. 5420 Mgt. Corp., 203 A.D.3d 975, 977, 161 N.Y.S.3d 851).  Moreover, the plaintiffs’ contention that the infant plaintiff fell due to a wet condition on the gym floor improperly raised a new theory of liability for the first time in opposition to the defendants’ motion for summary judgment dismissing the complaint (see J.F. v. Brentwood Union Free Sch. Dist., 184 A.D.3d at 807, 124 N.Y.S.3d 564).

The plaintiffs’ remaining contentions are either without merit or improperly raised for the first time on appeal.

GENOVESI, J.P., CHRISTOPHER, DOWLING and LOVE, JJ., concur.