| Odekirk v Bellmore-Merrick Cent. School Dist. |
| 2010 NY Slip Op 01464 [70 AD3d 910] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Charles Nicholas Albert Odekirk et al.,Respondents, v Bellmore-Merrick Central School District,Appellant. |
—[*1] Michael S. Lamonsoff, PLLC, New York, N.Y. (Tara M. Ulezalka of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Nassau County (Iannacci, J.), dated June 29, 2009, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On March 30, 2006, the infant plaintiff (hereinafter the plaintiff) was injured while playing agame of floor hockey during his physical education class. According to the plaintiff, he wasstruck on his left hand by the blade of an opposing player's hockey stick. The incident occurredaccidently and without warning despite the opposing player having "swung as he was supposedto." The plaintiff by his mother and his mother individually commenced this action against thedefendant Bellmore-Merrick Central High School District alleging a failure to adequatelysupervise the students. The Supreme Court denied the defendant's motion for summary judgmentdismissing the complaint, finding triable issues of fact as to the adequacy of the supervision. Wereverse.
"Schools are under a duty to adequately supervise the students in their charge and they willbe held liable for foreseeable injuries proximately related to the absence of adequatesupervision" (Mirand v City of New York, 84 NY2d 44, 49 [1994]). Even assumingthere is a triable issue of fact as to the adequacy of supervision, " 'liability for any such negligentsupervision does not lie absent a showing that it constitutes a proximate cause of the injurysustained' " (Mayer v Mahopac Cent. School Dist., 29 AD3d 653, 654 [2006], quotingLopez v Freeport Union Free School Dist., 288 AD2d 355, 356 [2001]; see Siegell vHerricks Union Free School Dist., 7 AD3d 607, 608-609 [2004]; Schlecker v ConnetquotCent. School Dist. of Islip, 150 AD2d 548 [1989]). "[W]here . . . an accidentoccurs in so short a span of time that even the most intense supervision could not have preventedit, lack of supervision is not the proximate cause of the injury" (Soldano v Bayport-BluePoint Union Free School Dist., 29 AD3d 891, 891 [2006] [internal quotation marks omitted];see Walker v Commack School Dist., 31 AD3d 752 [2006]; Mayer v Mahopac Cent.School Dist., 29 AD3d 653 [2006]; Ancewicz v Western Suffolk BOCES, 282 [*2]AD2d 632 [2001]).
The defendant met its prima facie burden of demonstrating that the alleged inadequatesupervision was not a proximate cause of the injuries suffered. In opposition, the plaintiffs failedto raise a triable issue of fact as to causation. Here, the plaintiff's injuries were caused by anincident that "occurred in such a short span of time that it could not have been prevented by themost intense supervision" (Scarito v St. Joseph Hill Academy, 62 AD3d 773, 775[2009]; see Paca v City of New York, 51 AD3d 991 [2008]; Knightner v WilliamFloyd Union Free School Dist., 51 AD3d 876 [2008]).
The plaintiffs' allegation that the defendant failed to sufficiently instruct its students wasimproperly asserted for the first time in opposition to the defendant's motion for summaryjudgment (see Harrington v City of New York, 6 AD3d 662, 663 [2004]; Alvarez vLindsay Park Hous. Corp., 175 AD2d 225 [1991]).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint. Rivera, J.P., Leventhal, Lott and Austin, JJ., concur.