Luis S. v City of New York

Luis S. v City of New York 2015 NY Slip Op 06022 Decided on July 9, 2015 Appellate Division, First 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 on July 9, 2015
Gonzalez, P.J., Friedman, Renwick, Moskowitz, Clark, JJ.
15670 350045/08

[*1] Luis S., an Infant, by His Mother and Natural Guardian, Susana B., et al., Plaintiffs-Respondents,

v

The City of New York, et al., Defendants-Appellants.

Zachary W. Carter, Corporation Counsel, New York (Robert W. Gordon of counsel), for appellants.

Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers (Erin C. LaRocca of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered July 1, 2014, which denied defendants' motion seeking, inter alia, summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action alleging negligent supervision in a gym class, defendants established prima facie entitlement to summary judgment dismissing the action against them. Plaintiffs failed to raise a triable issue of fact to refute defendants' evidence that the infant plaintiff, a seventh grade student, was instructed and shown how to properly navigate the obstacle course in question, which included a two-foot high hurdle. Plaintiff was injured when, after successfully jumping over the hurdle, he suffered a fracture of his right knee upon landing. There was no evidence offered to substantiate the claim that the wooden gym floor was slippery, or that a matted landing area was warranted. Defendants' unrefuted evidence demonstrated that the other students navigated the hurdle without incident, and that there was no known history of injuries occurring in connection with the obstacle course, which the gym teachers regularly used. Moreover, infant plaintiff's two gym teachers jointly observed only half a class at a time, as the boys and then the girls of each class attempted the obstacle course. Plaintiffs offered no evidence, aside from speculation, that plaintiff's injury could have been avoided by having a spotter alongside the hurdle, or a mat on the landing side of the hurdle (see generally Paredes v City of New York, 101 AD3d 424 [1st Dept 2012]; David v County of Suffolk, 1 NY3d 525 [2003]).

We note that dismissal as to the City is required in any event, since it is not a proper party (see Perez v City of New York, 41 AD3d 378 [1st Dept 2007], lv dismissed 10 NY3d 708 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 9, 2015

CLERK