Kristofer Llauger, an Infant Under the Age of Sixteen, by / his Mother and Natural Guardian, Lucy Morales, et al, Plaintiffs–Respondents, v. Archdiocese of New York, et al., Defendants–Appellants.  [And A Third–Party Action]

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Supreme Court, Appellate Division, First Department, New York.

Kristofer Llauger, an Infant Under the Age of Sixteen, by / his Mother and Natural Guardian, Lucy Morales, et al, Plaintiffs–Respondents, v. Archdiocese of New York, et al., Defendants–Appellants.  [And A Third–Party Action]

4663 8389 2 08

Decided: March 29, 2011

Tom, J.P., Sweeny, Catterson, Acosta, Manzanet–Daniels, JJ. Windels Marx Lane & Mittendorf, LLP, New York (Christopher D. Mehno of counsel), for appellants. Jay S. Hausman & Associates, P.C., Hartsdale (Elizabeth M. Pendzick of counsel), for respondents.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 7, 2010, which, in an action for personal injuries sustained when infant plaintiff collided with a voting machine during gym class, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

“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 [1994] ).   Here, dismissal of the complaint was not warranted since the record presents triable issues of fact including whether defendants were negligent in allowing the gym class, which was comprised of approximately 35 students, to take place while the voting machines were present.   The gym teacher testified that the students were instructed to run laps around the gymnasium;  that he advised the students to be careful of the voting machines;  and that plaintiff's fall into the voting machine was the end result of several students tripping over one another.   Accordingly, viewing the evidence in the light most favorable to plaintiffs (see e.g. Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007] ), it cannot be said, as a matter of law, that the subject accident was not foreseeable.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK