Nyala C. v. Miniventures Child Care Development Center, Inc. , 18 N.Y.S.3d 863 ( 2015 )

Nyala C. v Miniventures Child Care Dev. Ctr., Inc. (2015 NY Slip Op 08121)

Nyala C. v Miniventures Child Care Dev. Ctr., Inc.

2015 NY Slip Op 08121

Decided on November 12, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 12, 2015
Friedman, J.P., Acosta, Renwick, Andrias, Moskowitz, JJ.

16125 305013/12

[*1] Nyala C., an Infant Under the Age of Fourteen Years, etc., Plaintiff-Appellant,

v

Miniventures Child Care Development Center, Inc., et al., Defendants-Respondents.

Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellant.

Steven F. Goldstein, LLP, Carle Place (Steven F. Goldstein of counsel), for respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered February 24, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Dismissal of the complaint was not warranted, in this action for personal injuries allegedly sustained by the then four-year-old infant plaintiff when she fell off a jungle gym ladder. Triable issues of fact exist as to whether defendants' employee, who was watching the infant plaintiff prior to the accident, negligently supervised the child. The infant plaintiff testified that she had asked the employee to help her before she fell and that the employee had assisted her with "one or two steps," before allowing her to descend the ladder's remaining steps on her own while the employee looked on. However, the employee and another employee testified that the infant plaintiff had never asked for assistance, which was why neither of them helped the child climb down the ladder. Such conflicting testimony as to how the accident happened precludes granting defendants' motion for summary judgment (see Peuplie v Longwood Cent. School Dist., 49 AD3d 837, 839 [2d Dept 2008]; see also DeRosa v Valentino, 14 AD3d 448 [1st Dept 2005]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 12, 2015

CLERK