| Hilts v Board of Educ. of Gloversville Enlarged School Dist. |
| 2008 NY Slip Op 03542 [50 AD3d 1419] |
| April 24, 2008 |
| Appellate Division, Third Department |
| Daniel Hilts, Individually and as Parent of Misty Hilts, an Infant,Respondent, v Board of Education of Gloversville Enlarged School District et al.,Appellants. |
—[*1] Abdella Law Offices, Gloversville (Robert Abdella of counsel), for respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Sise, J.), entered February 21,2007 in Fulton County, which, among other things, denied defendants' motion for summaryjudgment dismissing the complaint.
On January 9, 2002, then 10-year-old Misty Hilts (hereinafter the child) slipped and fell onthe playground at McNab Elementary School in the City of Gloversville, Fulton County allegedlydue to slushy conditions. The child's mother, a teacher's aide at the school, and Carol Edwards,the school nurse, responded to the scene and assisted her to the nurse's office. Thereafter, thechild's mother decided to take her daughter to the emergency room and both she and Edwardshelped her walk outside to the parking lot. When they got outside, the child's mother went to gether car and Edwards stood with the child helping to support her weight. When the child's motherpulled the car around, Edwards allegedly released her and told her she could walk, causing thechild to fall again and to sustain injuries to her right ankle. Plaintiff, the child's father,subsequently commenced this negligence action both individually and on behalf of the childagainst Edwards and defendant Board of Education of the Gloversville Enlarged School [*2]District. Following joinder of issue, defendants moved for summaryjudgment dismissing the complaint and moved for an order compelling a second independentmedical examination (hereinafter IME). Supreme Court denied both motions and this appealensued.
Initially, we note that plaintiff's negligence action is based upon the allegedly dangerouscondition of the premises where the child first fell as well as Edwards' purported failure tosupport the child, which allegedly caused her to fall a second time. Given that plaintiff'snegligence claim premised upon the alleged dangerous condition of the premises has beendiscontinued and an order to that effect rendered by Supreme Court, we need not addressdefendants' arguments with respect thereto.
Turning to the purported omissions of Edwards, the allegations of the complaint do not assertmedical malpractice but rather sound in common-law negligence. To establish such a claim, "aplaintiff must demonstrate that the defendant breached a legal duty owed to him or her, and thatthe alleged negligence was a proximate cause of his or her injuries" (Elliot v Long Is. Home, Ltd., 12 AD3d481, 482-483 [2004]). While defendants argue that Edwards did not owe a common-lawduty to "hold up" the child, it is well settled that once a person voluntarily undertakes acts forwhich he or she has no legal obligation, that person must act with reasonable care or be subject toliability for negligent performance of the assumed acts (see Castiglione v Village ofEllenville, 291 AD2d 769, 770 [2002], lv denied 98 NY2d 604 [2002]). Here,undisputed testimony was presented that Edwards volunteered to assist the child exit the buildingand helped support her while waiting for her mother to get the car. Although contradictorytestimony was presented as to whether Edwards prematurely released the child and caused her tofall a second time, this clearly raised a question of fact. Accordingly, Supreme Court properlydenied defendants' motion for summary judgment.
Furthermore, we find no abuse of discretion in Supreme Court's denial of defendants' motionfor an order compelling Hilts to submit to a second IME. "While there is no restriction in CPLR3121 (a) on the number of examinations to which a party may be subjected, an additionalexamination is permissible only where the party seeking the examination demonstrates thenecessity for it" (Schissler v Brookdale Hosp. Ctr., 289 AD2d 469, 470 [2001] [citationomitted]). Inasmuch as defendants sought a second IME solely for the purpose of rebutting theopinion of plaintiff's expert, Supreme Court properly concluded that the requisite showing hadnot been made.
Cardona, P.J., Carpinello, Lahtinen and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.