Mogan v Dame Russell Physical Therapy, PLLC

Mogan v Dame Russell Physical Therapy, PLLC 2015 NY Slip Op 04188 Decided on May 14, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 14, 2015
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[*1]HEATHER MOGAN, as Parent and Guardian of MIA KHAZIN, an Infant, Appellant,

v

DAME RUSSELL PHYSICAL THERAPY, PLLC, et al., Respondents.

Calendar Date: March 24, 2015
Before: Peters, P.J., Egan Jr., Rose and Lynch, JJ.

Anderson, Moschetti & Taffany, PLLC, Latham (Peter J. Moschetti Jr. of counsel), for appellant.

Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (Mackenzie C. Monaco of counsel), for respondents.

Peters, P.J.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Ferradino, J.), entered May 14, 2014 in Saratoga County, which granted defendants' motion for summary judgment dismissing the complaint.

In 2011, physical therapy was recommended for three-year-old Mia Khazin (hereinafter the child) to address her habit of walking on her toes rather than using a normal heel-to-toe gait. She obtained the therapy at a facility owned and/or operated by defendants, and was injured when she tripped and fell there. Plaintiff, the child's mother, commenced this action alleging, among other things, that defendants were negligent in their

supervision of the child. Following joinder of issue and discovery, Supreme Court granted defendants' motion for summary judgment dismissing the complaint. Plaintiff appeals, arguing that questions of fact exist with regard to the supervision afforded by defendants.

We affirm. Initially, Supreme Court properly found that defendants owed a duty of care to the child. On the date in question, plaintiff was required to remain in the waiting room out of concern that she would be "a distraction" to the child during the therapy session. Defendants undertook the duty of supervising the child under these circumstances and, as such, were "required to use reasonable care to protect the child from harm and may be liable for injury [*2]proximately caused by [their] negligence in doing so, particularly since the standard of care owed a child is higher than that required for an adult" (Mary A. ZZ. v Blasen, 284 AD2d 773, 775 [2001] [internal citations omitted]; see Willis v Young Men's Christian Assn. of Amsterdam, 28 NY2d 375, 379 [1971]; Zalak v Carroll, 15 NY2d 753, 754 [1965]). That being said, defendants "are not insurers of safety [and] cannot reasonably be expected to continuously supervise and control all movements and activities of" a child under their care (Mirand v City of New York, 84 NY2d 44, 49 [1994]; accord Stephenson v City of New York, 19 NY3d 1031, 1033 [2012]; see Willis v Young Men's Christian Assn. of Amsterdam, 28 NY2d at 379).

Bearing these principles in mind, we turn to the undisputed facts of the child's accident. Valerie Miller was the physical therapist who worked with the child, and the accident occurred while the two were walking from the therapy room to the waiting room so that Miller could discuss home exercises with plaintiff. Miller testified that, as was her custom, she kept the child next to her while they were walking. When she told the child that they were going to meet plaintiff, the child became excited and forgot to turn into the waiting room. Miller then pointed out the correct door, at which point the child abruptly turned, tripped over Miller's foot and struck her head against the corner of the doorway. Miller further testified that the child was well-behaved, and she accordingly had no reason to suspect that the child would quickly turn. This evidence amply demonstrated that defendants provided adequate supervision for the child and that, given the sudden and unexpected nature of the child's movements, "any alleged inadequacy in the level of supervision was not a proximate cause of the accident" (Goldschmidt v City of New York, 123 AD3d 1087, 1088 [2014]; see Wagner v Oneonta School Dist., 68 AD3d 1516, 1517-1518 [2009]; Doyle v Binghamton City School Dist., 60 AD3d 1127, 1128-1129 [2009]). Inasmuch as plaintiff failed to raise a question of fact in response, Supreme Court properly granted summary judgment to defendants.

Egan Jr., Rose and Lynch, JJ., concur.

ORDERED that the order is affirmed, with costs.