Breland v. Flushing YMCA , 666 N.Y.S.2d 473 ( 1997 )

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Price, J.), dated October 7, 1996, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

We agree with the defendant that the trial court should not have considered the affidavit submitted by the infant plaintiff in opposition to the motion for summary judgment, since it directly contradicted her prior, sworn testimony at an examination before trial (see, Leale v New York City Health & Hosps. Corp., 222 AD2d 414; Kistoo v City of New York, 195 AD2d 403).

Nevertheless, the court properly denied summary judgment. Although the defendant is not an insurer of the children entrusted to its care, it is under a duty to adequately supervise such children, and it can be held liable for foreseeable injuries proximately related to the lack of adequate supervision (see generally, Mirand v City of New York, 84 NY2d 44; Vonungern v Morris Cent. School, 240 AD2d 926). Under the circumstances of this case, the defendant did not demonstrate prima facie entitlement to judgment in its favor as a question of fact exists regarding whether or not its employees adequately supervised the infant plaintiff on the day in question (see, Zuckerman v City of New York, 49 NY2d 557). Bracken, J. P., O’Brien, Sullivan and Santucci, JJ., concur.