Hernandez v St. Stephen of Hungary School

Hernandez v St. Stephen of Hungary School 2010 NY Slip Op 03389 [72 AD3d 595] April 27, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

Jonathan Hernandez, an Infant, by His Mother and Natural Guardian, Idalia Sanchez, et al., Appellants,
v
St. Stephen of Hungary School, Respondent.

—[*1] Philip J. Sporn & Associates, Bronx (Robert J. DiGianni, Jr. of counsel), for appellants.

Leahey & Johnson, P.C., New York (Peter James Johnson, Jr. of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered January 27, 2009, which, to the extent appealable, denied plaintiffs' motion to renew a prior order granting defendant summary judgment dismissing the complaint, and granted defendant's show cause order to preclude plaintiffs from offering deposition testimony as proof on their motion, unanimously affirmed, without costs.

This is an action for negligent supervision of an after-school program where the infant plaintiff was injured in a Wiffle ball game. Plaintiffs failed to establish that the court overlooked or misapprehended the facts or the law, or was otherwise mistaken in its earlier decision (see William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1992], lv denied in part and dismissed in part 80 NY2d 1005 [1992]), and in any event, no appeal lies from a denial of reargument.

Renewal was properly denied when plaintiffs were unable to explain why the purportedly new evidence—deposition testimony or a supporting affidavit—was not submitted on the original motion (see Anthoine v Lord, Bissell & Brook, 295 AD2d 293 [2002]). In any event, plaintiffs were still unable to offer competent proof of unreasonable, enhanced or unforeseen risks in this activity that would establish a breach of duty to a voluntary participant (see e.g. Cuesta v Immaculate Conception R.C. Church, 168 AD2d 411 [1990]), or negligence in [*2]defendant's supervision of the activity (see Siegell v Herricks Union Free School Dist., 7 AD3d 607 [2004]). Concur—Tom, J.P., Mazzarelli, Andrias, Saxe and DeGrasse, JJ.