Harrell v Poughkeepsie Seventh Day Adventist Elementary Sch.
Annotate this CaseDecided on September 5, 2012
Supreme Court, Dutchess County
Thelma Harrell, Individually and as Mother and Natural Guardian of Infant JAI ELTING, Plaintiff,
against
Poughkeepsie Seventh Day Adventist Elementary School, Defendant.
6430/10
REGINA FITZPATRICK, ESQ.
MAINETTI, MAINETTI & O'CONNOR, P.C.
Attorneys for Plaintiff
303 Clinton Avenue
P.O. Box 3058
Kingston, New York 12402
CONSTANTINE A. PANTAZIS, ESQ.
GALVANO & XANTHAKIS, P..C
Attorneys for Defendant
150 Broadway, Suite 2100
New York, New York 10038
James D. Pagones, J.
Defendant Poughkeepsie Seventh Day Adventist Elementary School moves for summary judgment dismissing the plaintiff's complaint. The plaintiff opposes the instant application.
This action for personal injury arises out of two accidents that occurred on the defendant's property. The infant plaintiff, Jai Elting, was a student at Poughkeepsie Seventh Day Adventist Elementary School. Poughkeepsie Seventh Day Adventist Elementary School is a private school of approximately thirty students ranging from pre-elementary to eighth grade. The majority of the students, approximately twenty, attend pre-pre-kindergarten, pre-kindergarten, and kindergarten.
On September 22, 2009, while playing in the school [*2]playground during recess, the infant plaintiff fell from a slide and sustained an injury to his right arm. According to the infant plaintiff, he was attempting to run up the slide at the time he fell. It is undisputed that all the school's students share the same recess schedule and that there was only one supervisor present at the time the infant plaintiff was injured.
Several months later, on January 11, 2010, the infant plaintiff sustained an injury to his mouth when he was allegedly pushed by an older student, causing the infant plaintiff to fall. It is also undisputed that all the school's students share the same lunch period and that there was only one supervisor present at the time of the infant plaintiff was injured.
The infant plaintiff was three years old at the time of both accidents. Neither accident was witnessed by a supervisor.
In order "to obtain summary judgment, it is necessary that
the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)
It is well settled that schools have a duty to adequately supervise their students, and "will be held liable for foreseeable injuries proximately related to the absence of adequate supervision." (Brandy B. v. Eden Cent. School Dist., 15 NY3d 297 [2010], quoting Mirand v. City of New York, 84 NY2d 44, 49 [1994].) Here, the defendant has failed to establish on a prima facie basis that it provided adequate supervision. The facts as set forth in this application demonstrate that approximately thirty students, the majority of which were enrolled in the pre-pre-kindergarten, pre-kindergarten and kindergarten programs, were supervised by only one adult at the time of each of the infant plaintiff's accidents. The defendant's employee who supervised recess during the infant plaintiff's first accident acknowledged that there would typically be two supervisors present during both lunch and recess but that one of the supervisors was absent on the date of each of the infant plaintiff's accidents. It is notable that neither of the infant plaintiff's accidents were observed by a supervisor.
This court cannot determine as a matter of law on this application that the defendant provided adequate supervision and [*3]that infant plaintiff's injuries were not a foreseeable result of the lack of adequate supervision. Because the defendant's own submission raises triable issues of fact as to the adequacy of the supervision and whether closer supervision would have prevented the accidents, the court need not consider the sufficiency of the plaintiff's opposition. (See, Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985].)
Therefore, it is ordered that the defendant's motion for summary judgment is denied.
The Court read and considered the following documents upon this application:
PAGES NUMBERED
1.Notice of Motion........................1-2
Affirmation-Pantazis...............1-10
Exhibits...........................A-F
2.Affirmation in Opposition-Fitzpatrick...1-12
Exhibits...........................G-I
3.Reply Affirmation-Pantazis..............1-8
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
September 5, 2012
ENTER
HON. JAMES D. PAGONES, A.J.S.C.
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