| Scarito v St. Joseph Hill Academy |
| 2009 NY Slip Op 03887 [62 AD3d 773] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Toni Scarito, Respondent, v St. Joseph Hill Academy etal., Appellants. |
—[*1] Nicholas Martino, Jr., Staten Island, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Richmond County (Maltese, J.), dated July 16, 2008, which granted theplaintiff's motion for leave to reargue the defendants' prior motion for summary judgmentdismissing the complaint, which had been granted in an order dated May 27, 2008, and uponreargument, in effect, vacated so much of the order dated May 27, 2008, as granted thedefendants' motion for summary judgment dismissing the complaint and thereupon denied thatmotion.
Ordered that the order dated July 16, 2008, is modified, on the law, by deleting the provisionthereof, upon reargument, in effect, vacating so much of the order dated May 27, 2008, asgranted the defendants' motion for summary judgment dismissing the complaint and thereupondenying the motion, and substituting therefor a provision, upon reargument, adhering to so muchof the order dated May 27, 2008, as granted the defendants' motion for summary judgmentdismissing the complaint; as so modified, the order dated July 16, 2008, is affirmed, with costs tothe defendants.
The plaintiff brought this action to recover damages after her son, Anthony, allegedly wasinjured while playing a game of "speed soccer" during his physical education class. In speedsoccer, two teams consisting of three players each attempt to score points during one minute ofplay. Anthony was in possession of the ball, and he was attempting to kick the ball when anotherstudent, who also was attempting to kick the ball, kicked Anthony's right shin instead.
The defendants moved for summary judgment dismissing the complaint, contending that theaccident could not have been prevented by the most intense supervision. The Supreme Courtgranted [*2]the motion. The plaintiff moved for leave to reargue,contending that the Supreme Court failed to address her argument that the defendants had failedto provide adequate safety equipment in the form of shin guards. The Supreme Court agreed andpermitted oral argument, during which the Supreme Court directed the parties to submit to thecourt any formal written rule, law, or regulations that required the use of shin guards in soccercompetition. In response, inter alia, the plaintiff submitted information posted on the Web site ofthe Federation Internationale de Football Association (hereinafter FIFA) as of June 27, 2008, aswell as excerpts from the United States Soccer Federation's "Laws of the game 2007/2008."Upon reargument, the Supreme Court, in effect, vacated so much of the order dated May 27,2008, as granted the defendants' motion for summary judgment dismissing the complaint andthereupon denied that motion. We modify.
The Supreme Court providently exercised its discretion in granting that branch of theplaintiff's motion which was for leave to reargue since it admittedly did not consider theplaintiff's argument that the defendants allegedly failed to provide Anthony with adequate safetyequipment. However, it should not have directed the parties to submit any additional evidence(see CPLR 2221 [d]). In any event, upon reargument, the Supreme Court should haveadhered to its original determination granting the defendants' motion for summary judgment. Thedefendants established their entitlement to judgment as a matter of law by demonstrating thatAnthony's injuries were caused by the other student's accidental conduct in the course of thesoccer game and, given the attendant circumstances, that the incident occurred in such a shortspan of time that it could not have been prevented by the most intense supervision (see Paca v City of New York, 51AD3d 991 [2008]; Ronan v SchoolDist. of City of New Rochelle, 35 AD3d 429 [2006]; Walker v Commack School Dist., 31AD3d 752 [2006]; Mayer vMahopac Cent. School Dist., 29 AD3d 653 [2006]; Hernandez v Board of Educ. ofCity of N.Y., 302 AD2d 493 [2003]; Convey v City of Rye School Dist., 271 AD2d154, 160 [2000]). In opposition, the plaintiff failed to raise a triable issue of fact. In their originalopposition papers, the plaintiff submitted an expert affidavit to support their contention that thedefendants were negligent in failing to provide a shin guard during the game. The plaintiff'sexpert, however, failed to cite to any statute, regulations, or guidelines which stated that shinguards were necessary, and his affidavit was insufficient to raise a triable issue of fact (see Benson v Union Free School Dist. #23,37 AD3d 748, 749 [2007]). Additionally, there was no competent proof that there wereany FIFA regulations or United States Soccer Federation Laws regarding the use of shin guardswhich were in effect at the time of the accident. Assuming that such regulations or laws existedat the time of the accident, there was no competent proof that they reflected a generally-acceptedstandard or practice in middle school settings (see Walker v Commack School Dist., 31 AD3d 752, 753 [2006];Capotosto v Roman Catholic Diocese ofRockville Ctr., 2 AD3d 384 [2003]).
The plaintiff's remaining contention is without merit. Santucci, J.P., Belen, Lott and Austin,JJ., concur.