| Tanenbaum v Minnesauke Elementary School |
| 2010 NY Slip Op 03902 [73 AD3d 743] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Joshua Tanenbaum et al., Appellants, v MinnesaukeElementary School et al., Respondents. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Suffolk County (Costello, J.), dated April 7, 2009, which grantedthe defendants' motion for summary judgment dismissing the complaint, and (2) a judgment ofthe same court entered June 1, 2009, which, upon the order, is in favor of the defendants andagainst them dismissing the complaint. The notice of appeal from the order dated April 7, 2009,is deemed also to be a notice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On May 15, 2006, the infant plaintiff allegedly was injured when one of his second gradeclassmates ran to get in line to exit the cafeteria of the defendant Minnesauke Elementary Schoolfollowing the students' lunch period. The classmate accidentally pushed the plaintiff from behindas he was running, causing the plaintiff to fall forward and hit his face on one of the lunch tablebenches. In this action, the plaintiffs allege that the defendants' negligent supervision was theproximate cause of the incident. The defendants' motion for summary judgment dismissing thecomplaint was granted. We affirm.[*2]
Schools are under a duty to supervise students in theircharge and will be held liable for foreseeable injuries proximately related to the absence ofadequate supervision (see Mirand v City of New York, 84 NY2d 44 [1994]). However,there is no liability absent a showing that the negligent supervision was a proximate cause of theinjury sustained (see Mayer v MahopacCent. School Dist., 29 AD3d 653 [2006]). A school district's alleged lapse insupervision is not a proximate cause of an accident where that accident occurs in so short a spanof time that even the most intense supervision could not have prevented it (see Janukajtis vFallon, 284 AD2d 428, 430 [2001]; Convey v City of Rye School Dist., 271 AD2d154, 160 [2000]).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawby showing that any alleged lack of supervision was not a proximate cause of the incidentthrough the deposition testimony of cafeteria monitor Joan Tamburello and the infant plaintiff.Tamburello testified that she instructed students on a daily basis not to run, and further statedthat she was "one or two seconds away" from the site of the accident when it occurred.Moreover, the infant plaintiff testified at his deposition that Tamburello frequently warned thestudents not to run and had only done so shortly before the incident. In opposition to thedefendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact.
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Santucci, Belen andChambers, JJ., concur.