The following papers read on this motion:Notice of Motion and Affidavits XAffirmation in Opposition XReply Affirmation XRelief Requested Motion by the defendants, Our Lady of Mercy School, and Our Lady of Mercy Roman Catholic Church, for an order pursuant to CPLR 3212 granting summary judgment dismissing the plaintiffs’ complaint. The plaintiffs submit opposition. The defendants submit a reply affirmation.BackgroundThe plaintiffs initiated the instant action to recover for personal injuries suffered by M.D., an infant under the age of fourteen (14), after M.D. injured his nose at the defendants’ school on October 31, 2016. At the time of M.D.’s accident, his fourth grade class was in physical education class with another fourth grade class playing in a variation of the game dodgeball. When the game began, M.D. ran toward the center court line to retrieve a ball, and as he retreated back to his side of the court, he collided with another student. The plaintiffs allege that the defendants violated their duty to supervise and control the premises in a reasonably safe condition for students at the time of M.D.’s accident.Applicable LawIt is well-settled that in order “[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212[b]), and he must do so by tender of evidentiary proof in admissible form” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, citing Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065, 1067-1068).Once a movant has met its initial burden of proof on a summary judgment motion, the burden shifts to the opponent to provide evidence in admissible form to demonstrate an issue of fact (Gaddy v. Eyler, 582 N.Y.S.2d 990). It is well established that a party opposing a summary judgment motion must “lay its proof” and present evidence, in admissible form, demonstrating the existence of triable issues of fact which preclude summary judgment (Friends of Animals, Inc., supra; Zuckerman, supra; Morgan v. New York Telephone, 220 A.D.2d 728). Bald, conclusory allegations, speculation and surmise are insufficient to defeat a motion for summary judgment (Shapiro v. Health Ins. Plan of Greater NY, 7 N.Y.2d 56; Skouras v. New York City Transit Authority, 48 A.D.3d 547; Gelesko v. Levy, 37 A.D.3d 528).Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (Mirand v. City of New York, 84 N.Y.2d 44). A school, however, is not an insurer of children’s safety and will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision (Paragas v. Comsewogue Union Free School Dist., 65 A.D.3d 1111). Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the defendant school district is warranted (Ronan v. School Dist. of City of New Rochelle, 35 A.D.3d 429).DiscussionHere, M.D. stated in his examination before trial that he was returning from the center line when someone ran into him, injuring his nose. The physical education teacher, Kathy Gorman, stated in her examination before trial that she had just announced “go” to begin the game and was looking in M.D.’s general direction when he became injured. As such, the defendants established their entitlement to judgment as a matter of law through evidence that the accident was caused by an unforeseen act which could not have been prevented by any reasonable degree of supervision (see Ronan, supra; see also Zuckerman, supra).In opposition, the plaintiffs submit, inter alia, the report of Carl J. Abraham, a licensed professional engineer and a position statement by the National Association for Sport and Physical Education (hereinafter referred to as “NASPE”). While Dr. Abraham opines that the injury to M.D. was foreseeable because the defendants should have known that dodgeball would enhance the risk of such injury, the record shows that the subject accident was spontaneous (see Knightner v. William Floyd Union Free School Dist., 51 A.D.3d 876). Further, contrary to the plaintiffs’ contentions, the NASPE position statement recommends against dodgeball in schools due to issues of students being alienated, and not due to any inherent danger connected to playing the game. The plaintiffs have not offered any evidence that more intense supervision might have prevented the accidental collision (see Paragas, supra). As such, plaintiffs have failed to raise a triable issue of fact.ConclusionIn light of the foregoing, it is herebyORDERED that the defendants’ motion for summary judgment is granted.Dated: March 18, 2019
