Pollock v Bones

2008 NY Slip Op 05545

Decided on June 17, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 17, 2008
Lippman, P.J., Andrias, Sweeny, Renwick, JJ.
3949 24023/04






David Henry Sculnick, New York, for appellants.
Lester Schwab Katz & Dwyer, LLP, New York (Steven B.
Prystowsky of counsel), for respondent.

Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered June 13, 2007, which granted the motion of defendant Boys & Girls Harbor, Inc. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The record contains no evidence of previous physical altercations between the infant plaintiff and her fellow camper that would have placed defendant day camp on notice that the fellow camper's act that allegedly caused plaintiff's injuries could reasonably have been anticipated (see Baker v Trinity-Pawling School, 21 AD3d 272, 274 [2005], lv dismissed 7 NY3d 739 [2006]). In any event, the infant plaintiff had left camp at the end of the day and was no longer under the physical custody and control of defendant's personnel when she was struck by the vehicle (see Pratt v Robinson, 39 NY2d 554, 560 [1976]; Harker v Rochester City School Dist., 241 AD2d 937 [1997], lv denied 90 NY2d 811 [1997]). Moreover, her running into the street was an independent intervening act "so attenuated from the [camp's] conduct that [*2]responsibility for the injury should not reasonably be attributed to [it]" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 17, 2008

CLERK