McCollin v Roman Catholic Archdiocese of N.Y.

McCollin v Roman Catholic Archdiocese of N.Y. 2007 NY Slip Op 09338 [45 AD3d 478] November 27, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

David McCollin, Jr., an Infant, by His Parent and Natural Guardian, David McCollin, Sr., et al., Appellants,
v
Roman Catholic Archdiocese of New York et al., Respondents.

—[*1] William T. Martin, Brooklyn, for appellants.

Eustace & Marquez, White Plains (Kenneth L. Gresham of counsel), for respondents.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered June 8, 2006, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was warranted in this action, where the infant plaintiff, an eighth-grade student at defendant school, was injured during the course of a basketball practice when a ninth-grader, who was a recent graduate of the school and at the practice to assist the school's basketball coach, kicked infant plaintiff in the face. Defendants made a prima facie case of entitlement to summary judgment by establishing that the infant plaintiff's injuries were the result of a sudden, unforeseeable, and spontaneous attack that could not have been prevented by greater supervision (see Baker v Trinity-Pawling School, 21 AD3d 272 [2005], lv dismissed 7 NY3d 739 [2006]). Plaintiffs' opposition failed to adduce sufficient evidence to demonstrate that defendants did not exercise ordinary reasonable care in its supervision of the infant plaintiff (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 656 [1989]; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 385-386 [2003]).

We have considered plaintiffs' remaining arguments and find them unavailing. Concur—Tom, J.P., Mazzarelli, Saxe, Marlow and Williams, JJ.