Wetherington v Bronx House, Inc.

[*1] Wetherington v Bronx House, Inc. 2013 NY Slip Op 23351 Decided on October 15, 2013 Appellate Term, 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 printed Miscellaneous Reports.

Decided on October 15, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570978/12.

Christopher Wetherington An infant under the age of fourteen (14) years, by his mother and natural guardian Antoinette Bracero and Antoinette Bracero Plaintiffs-Respondents,

against

Bronx House, Inc., Defendant-Respondent.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered April 11, 2012, which denied its motion for summary judgment dismissing the complaint

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered April 11, 2012, affirmed, with $10 costs.

Plaintiffs commenced this negligence action seeking to recover damages for injuries the then nine-year old infant plaintiff allegedly sustained when, during an after school program run by defendant, he was struck in the face by a chair that was pushed or "bumped" by a fellow student, one "Nando." Accepting as true the facts alleged by plaintiffs in opposing summary judgment, and drawing all reasonable inferences in the light most favorable to them (see Asabor v Archdiosese of NY, 102 AD2d 524, 527 [2013]), the record shows that Nando and another (third) student were, at minimum, yelling and arguing for two or three minutes, in the presence of one or more of defendant's counselors, before the "ruckus" escalated and plaintiff was hit by the chair.

While defendant sustained its summary judgment burden of establishing that it had no actual or constructive notice of any prior misconduct by Nando or the other unnamed student (see Mirand v City of New York, 84 NY2d 44, 49 [1994]), there remain material issues of fact as to whether defendant adequately supervised the students in its charge and, if not, whether the infant plaintiff's injuries were foreseeable and proximately related to the absence of adequate supervision (id. at 49-50). Specifically, a trial is required to determine whether defendant's counselors "were presented with a potentially dangerous situation and failed to take energetic steps to intervene' in time to prevent one student from injuring another (Lawes v Board of Educ., 16 NY2d 302, 305 [1965]; cf. Hanley v Hornbeck, 127 AD2d 905 [1987] ... [and] whether [the [*2]infant plaintiff's] injuries were a foreseeable consequence of the [counselors'] alleged failure to respond appropriately as the events unfolded" (Nelson v Sachem Cent. Sch. Dist., 245 AD2d 434, 435 [1997]). On this record, it cannot be said as a matter of law that the incident happened in "so short a span of time that even the most intense supervision could not have prevented it'" (Janukajtis v Fallon, 284 AD2d 428, 430 [2001], quoting Convey v City of Rye School Dist., 271 AD2d 154, 160 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 15, 2013