| Lowe v Meacham Child Care & Learning Ctr., Inc. |
| 2010 NY Slip Op 05368 [74 AD3d 1029] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Devyn Lowe et al., Appellants, v Meacham Child Care &Learning Center, Inc., et al., Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Lally, J.), entered June 5, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The infant plaintiff allegedly sustained personal injuries during recess at the defendants' daycare center when he fell from "Little Tyke" playground equipment which was shaped like achair. After commencement of this action, the defendants moved for summary judgmentdismissing the complaint, contending that they adequately supervised the infant plaintiff, andthat any lack of supervision on their part was not a proximate cause of the injury producingevent. The Supreme Court granted the motion, and we affirm.
Day care programs have a duty to adequately supervise children in their charge, and will beheld liable for foreseeable injuries proximately related to the absence of adequate supervision(see Mirand v City of New York, 84 NY2d 44, 49 [1994]; Douglas v John Hus Moravian Church ofBrooklyn, Inc., 8 AD3d 327 [2004]). However, like schools, they are not insurers of thechildrens' safety (see Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 306 [1965];Kandkhorov v Pinkhasov, 302 AD2d 432 [2003]). "Where an accident occurs in so shorta span of time that even the most intense supervision could not have prevented it, any lack ofsupervision is not the proximate cause of the injury and summary judgment in favor of the[defendant day care] is warranted" (Convey v City of Rye School Dist., 271 AD2d 154,160 [2000]; see Troiani v White PlainsCity School Dist., 64 AD3d 701 [2009]; Lopez v Freeport Union Free SchoolDist., 288 AD2d 355 [2001]).
Here, the defendants established their prima facie entitlement to judgment as a matter of law.In support of the motion, the defendants demonstrated by admissible proof that "they providedadequate supervision during recess and, in any event, that the accident occurred in such a mannerthat it [*2]could not reasonably have been prevented by closermonitoring [of the playground], thereby negating any alleged lack of supervision as theproximate cause of the infant plaintiff's injuries" (Troiani v White Plains City SchoolDist., 64 AD3d at 702; see Weinblatt v Eastchester Union Free School Dist., 303AD2d 581 [2003]; Lopez v Freeport Union Free School Dist., 288 AD2d 355 [2001]). Inopposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact.
The defendants' contention regarding the admissibility of the deposition transcripts ofvarious witnesses has been raised for the first time on appeal and is not properly before thisCourt (see Ross v Gidwani, 47AD3d 912 [2008]; Dima v MorrowSt. Assoc., LLC, 31 AD3d 697 [2006]).
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint. Fisher, J.P., Santucci, Miller and Lott, JJ., concur.