| Weiner v Jericho Union Free School Dist. |
| 2011 NY Slip Op 07838 [89 AD3d 728] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Marni Weiner, a minor by Her Parent and Natural Guardian,Shelley Weiner, et al., Respondents, v Jericho Union Free School District et al., Appellants, etal., Defendant. |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), for appellant RachelAlbinder. Ardito & Ardito, LLP (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D.Sweetbaum], of counsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, etc., the defendants JerichoUnion Free School District and Kevin Scott appeal, as limited by their brief, from so much of anorder of the Supreme Court, Nassau County (Galasso, J.), dated August 6, 2010, as denied thosebranches of their cross motion which were for summary judgment dismissing so much of thecomplaint as alleged negligence and negligent supervision insofar as asserted against them, andthe defendant Rachel Albinder separately appeals, as limited by her brief, from so much of thesame order as denied her motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against her.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellants appearing separately and filing separate briefs.
The Supreme Court properly denied that branch of the defendant Rachel Albinder's motionwhich was for summary judgment dismissing the complaint insofar as asserted against her, andthat branch of the cross motion of the defendants Jericho Union Free School District and KevinScott (hereinafter together the School defendants) which was for summary judgment dismissingso much of the complaint as alleged negligence insofar as asserted against them, on the groundthat the allegations of negligence are barred by the doctrine of primary assumption of risk. Theevidentiary submissions of the movants were sufficient to make a prima facie showing that theplaintiff Marni Weiner (hereinafter the infant plaintiff) assumed the risk of her injuries byparticipating in a lacrosse clinic in her high school's gymnasium. However, the Supreme Courtproperly determined that, in opposition, the plaintiffs raised a triable issue of fact.[*2]
Further, the Supreme Court properly denied that branchof the School defendants' cross motion which was for summary judgment dismissing so much ofthe complaint as alleged negligent supervision insofar as asserted against them. Schools have aduty to adequately supervise children in their charge, and will be held liable for foreseeableinjuries proximately related to the absence of adequate supervision (see Mirand v City ofNew York, 84 NY2d 44 [1994];Luciano v Our Lady of Sorrows School, 79 AD3d 705 [2010]). "Where an accidentoccurs in so short a span of time that even the most intense supervision could not have preventedit, any lack of supervision is not the proximate cause of the injury and summary judgment infavor of the . . . defendants is warranted" (Convey v City of Rye SchoolDist., 271 AD2d 154, 160 [2000];see Luciano v Our Lady of Sorrows School, 79 AD3d 705 [2010]). Here, the Schooldefendants failed to establish, as a matter of law, that the infant plaintiff was adequatelysupervised at the time of the accident or that the incident occurred in such a short span of timethat it could not have been prevented by the most intense supervision (see Luciano v Our Lady of SorrowsSchool, 79 AD3d 705 [2010]; Convey v City of Rye School Dist., 271 AD2d at160).
The appellants' remaining contentions are without merit. Prudenti, P.J., Skelos, Balkin andSgroi, JJ., concur.