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

Kimberly CHECCHIA, et al., Respondents, v. PORT WASHINGTON U.F.S.D., Appellant.

Decided: September 28, 1998

Before O'BRIEN, J.P., and RITTER, THOMPSON, FRIEDMANN and GOLDSTEIN, JJ. Ahmuty, Demers & McManus, Albertson (Frederick B. Simpson and Brendan T. Fitzpatrick, of counsel), for appellant. Stephan Persoff, Carle Place, for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated December 1, 1997, which granted the plaintiffs' motion for reargument and renewal of its motion for summary judgment dismissing the complaint, which was granted by order of the same court entered August 8, 1997, and, upon reargument and renewal, denied the motion.

ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion for reargument and renewal is denied, and the order entered August 8, 1997, which granted the defendant's motion for summary judgment dismissing the complaint is reinstated.

The infant plaintiff was allegedly injured when another student collided with her during a basketball game.   The injury resulted from a spontaneous and unforeseeable act committed by a fellow student, which, under the circumstances, could not have been anticipated in the reasonable exercise of the school's legal duty to the infant plaintiff (see, Illa v. St. Brigid's School, 245 A.D.2d 487, 666 N.Y.S.2d 32;  Broad v. Patico Corp., 243 A.D.2d 434, 662 N.Y.S.2d 809;  Danna v. Sewanhaka Cent. High School Dist., 242 A.D.2d 361, 662 N.Y.S.2d 71;  Moores v. City of Newburgh School Dist., 237 A.D.2d 265, 655 N.Y.S.2d 411;  Ceglia v. Portledge School, 187 A.D.2d 550, 590 N.Y.S.2d 228;  Hauser v. North Rockland Cent. School Dist. No. 1, 166 A.D.2d 553, 560 N.Y.S.2d 835).   The plaintiffs failed to raise any issue of fact requiring a trial after the defendant had demonstrated its prima facie entitlement to judgment as a matter of law.   Therefore, the defendant is entitled to summary judgment.


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