| Benavides v Uniondale Union Free School Dist. |
| 2012 NY Slip Op 03393 [95 AD3d 809] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Bernardo Benavides, Appellant, v Uniondale Union FreeSchool District, Respondent. |
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Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Christine Gasser and Gregory A. Cascino of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from an orderof the Supreme Court, Nassau County (DeStefano, J.), entered June 16, 2011, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
In April 2008 the plaintiff Bernardo Benavides, who was then a second-grade student atNorthern Parkway School (hereinafter the school) in the defendant Uniondale Union Free SchoolDistrict, allegedly was injured when he was pushed down a slide by a fellow student in the schoolplayground during a lunch recess period. The fellow student allegedly proceeded down the slideand landed on top of the plaintiff. The plaintiff, by his mother and natural guardian, commencedthis action, and the defendant moved for summary judgment dismissing the complaint.
"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 adequate supervision"(Mirand v City of New York, 84 NY2d 44, 49 [1994]; see Nash v Port Wash. Union Free SchoolDist., 83 AD3d 136, 146 [2011]; Troiani v White Plains City School Dist., 64 AD3d 701, 702[2009]; Calcagno v John F. KennedyIntermediate School, 61 AD3d 911, 912 [2009]; Swan v Town of Brookhaven, 32 AD3d 1012, 1013 [2006])."Schools are not insurers of safety, however, for they cannot reasonably be expected tocontinuously supervise and control all movements and activities of students; therefore, schoolsare not to be held liable 'for every thoughtless or careless act by which one pupil may injureanother' " (Mirand v City of New York, 84 NY2d at 49, quoting Lawes v Board ofEduc. of City of N.Y., 16 NY2d 302, 306 [1965]; see Nash v Port Wash. Union FreeSchool Dist., 83 AD3d at 146-147; Armellino v Thomase, 72 AD3d 849, 849-850 [2010]; Paca v City of New York, 51 AD3d991, 992 [2008]; De Los Santos vNew York City Dept. of Educ., 42 AD3d 422, 422 [2007]).
Here, the defendant established its prima facie entitlement to judgment as a matter [*2]of law by presenting evidence that there was adequate playgroundsupervision, and that the level of supervision was not a proximate cause of the subject accident(see Calcagno v John F. Kennedy Intermediate School, 61 AD3d at 912; Conte v Minnesauke ElementarySchool, 56 AD3d 511 [2008]; Miller v Kings Park Cent. School Dist., 54 AD3d 314, 315 [2008];Swan v Town of Brookhaven, 32 AD3d at 1013; Navarra v Lynbrook Pub. Schools,Lynbrook Union Free School Dist., 289 AD2d 211 [2001]). In opposition, the plaintiff failedto raise a triable issue of fact (see Swan v Town of Brookhaven, 32 AD3d at 1013-1014).
The plaintiff's contention that his testimony at his deposition and at a hearing pursuant toGeneral Municipal Law § 50-h did not constitute "admissible evidence" because of his ageis improperly raised for the first time on appeal and, therefore, is not properly before this Court.Contrary to the plaintiff's contention, this does not present a pure question of law appearing onthe face of the record which could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases vCountry Wide Ins. Co., 84 AD3d 1043, 1044 [2011]).
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.[Prior Case History: 31 Misc 3d 1240(A), 2011 NY Slip Op 51061(U).]