| Mills v Department of Educ. of City of N.Y. |
| 2013 NY Slip Op 05735 [109 AD3d 643] |
| August 28, 2013 |
| Appellate Division, Second Department |
| Timel Paris Mills, an Infant, by His Mother and NaturalGuardian, Tatiana Lowe, et al., Respondents, v Department of Education of Cityof New York et al., Appellants. |
—[*1] Isaacson, Schiowitz, & Korson, LLP, New York, N.Y. (Jeremy Schiowitz ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., (1) the defendants appealfrom an order of the Supreme Court, Richmond County (Aliotta, J.), dated December 6,2011, which denied the motion of the defendant Department of Education of the City ofNew York for summary judgment dismissing the complaint insofar as asserted against it,and (2) the defendant Department of Education of the City of New York appeals, aslimited by its brief, from so much of an order of the same court dated June 6, 2012, as,upon renewal, adhered to the original determination.
Ordered that the appeal from the order dated December 6, 2011, is dismissed; and itis further,
Ordered that the order dated June 6, 2012, is affirmed insofar as appealed from; andit is further,
Ordered that one bill of costs is awarded to the plaintiffs, payable by the defendantDepartment of Education of the City of New York.
The appeal from the order dated December 6, 2011, must be dismissed, as that orderwas superseded by the order dated June 6, 2012, made upon renewal. Moreover, theappeal by the defendant Matt Gonzalez from the order dated December 6, 2011, mustalso be dismissed since he is not aggrieved thereby (see CPLR 5511).
On October 17, 2005, the plaintiff Tatiana Lowe, while in her second trimester ofpregnancy, allegedly fell during a touch football game in a high school physicaleducation class. The plaintiffs commenced this action against the defendants Departmentof Education of the City of New York (hereinafter the Department) and Matt Gonzalez,the physical education teacher. The complaint alleged, among other things, that thedefendants were negligent in requiring Lowe to participate in the touch football game,and that the fall caused preterm labor and delivery of the [*2]infant plaintiff, Timel Paris Mills, who sustaineddevelopmental deficits as a result of his premature birth.
After discovery, the Department moved for summary judgment dismissing thecomplaint insofar as asserted against it, contending that Lowe's fall was not a proximatecause of the preterm labor and delivery. In an order dated December 6, 2011, theSupreme Court denied the motion. Subsequently, the Department, among other things,moved for leave to renew its prior motion. In an order dated June 6, 2012, the SupremeCourt, inter alia, granted that branch of the Department's motion which was for leave torenew and, upon renewal, adhered to its original determination.
The Supreme Court, upon renewal, properly adhered to its original determinationdenying the Department's motion for summary judgment dismissing the complaintinsofar as asserted against it. In support of the motion, the Department established itsprima facie entitlement to judgment as a matter of law by demonstrating that Lowe's fallduring the physical education class was not a proximate cause of the preterm labor anddelivery of the infant plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320,324-325 [1986]; Dessources vGood Samaritan Hosp., 65 AD3d 1008, 1010 [2009]). However, the expertaffirmations submitted by the plaintiffs in opposition to the Department's motion raised atriable issue of fact as to whether the plaintiffs' alleged injuries were proximately causedby Lowe's fall. Contrary to the Department's contention, the expert's opinion was basedupon evidence in the record, and was not conclusory or unsubstantiated (see Magel v John T. Mather Mem.Hosp., 95 AD3d 1081, 1083 [2012]; Berger v Hale, 81 AD3d 766, 766 [2011]; see generallyDiaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Romano vStanley, 90 NY2d 444, 451-452 [1997]). Balkin, J.P., Leventhal, Cohen and Miller,JJ., concur.