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ARPI KOULAJIAN, plf-ap, v. TAMARA SMITH def-res

8137. ARPI KOULAJIAN, plf-ap, v. TAMARA SMITH def-res — Frederic Lewis, New York, for ap — DeSena & Sweeney, LLP, Hauppauge (Shawn P. O'Shaughnessy of counsel), for res — Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 4, 2011, which granted defendants' motion for summary judgment dismissing the complaint, affirmed, without costs.

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8137. ARPI KOULAJIAN, plf-ap, v. TAMARA SMITH def-res — Frederic Lewis, New York, for ap — DeSena & Sweeney, LLP, Hauppauge (Shawn P. O’Shaughnessy of counsel), for res — Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 4, 2011, which granted defendants’ motion for summary judgment dismissing the complaint, affirmed, without costs.

Contrary to plaintiff’s contention, there is no evidence in the record to support her theory that either of defendants was pulling the suitcase that plaintiff tripped over. Although defendants assert that the child was in control of the suitcase, plaintiff insists that the child was not. Accordingly, she could not prove a claim for negligent supervision, as such a cause of action is dependent on an allegation that a child improvidently used or operated a dangerous instrument (see Rios v. Smith, 95 NY2d 647, 652-653 [2001]). In light of this, the dissent’s argument concerning whether the suitcase was a dangerous instrument is wholly academic.

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