M v. v. City of New York , 149 A.D.3d 641 ( 2017 )

M.V. v City of New York (2017 NY Slip Op 03131)

M.V. v City of New York

2017 NY Slip Op 03131

Decided on April 25, 2017

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 April 25, 2017
Tom, J.P., Mazzarelli, Andrias, Manzanet-Daniels, Webber, JJ.

3827

[*1]M.V., an Infant by His Father and Natural Guardian, etc., et al., Plaintiffs-Appellants,

v

The City of New York, et al., Defendants-Respondents.

Susan R. Nudelman, New York, for appellants.

Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 23, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was proper in this action where the infant plaintiff was injured when, while he was participating in a game of tag, a fellow classmate "accidentally bumped" into him, causing him to crash into the wall of the gymnasium. Plaintiff's own testimony as to how the accident occurred demonstrates that no additional supervision could have prevented his injury (see Jorge C. v City of New York, 128 AD3d 410, 411 [1st Dept 2015].

Furthermore, the infant plaintiff's accident was caused by the "spontaneous act of one student running directly into another student in effort to avoid being tagged," which could not reasonably have been foreseen or prevented, and thus would not result in the school being held liable (Lizardo v Board of Educ. of the City of N.Y., 77 AD3d 437, 438 [1st Dept 2010]).

The affidavit of plaintiff's expert contained opinions not based in the record (see Chung v New York City Bd. of Educ., 136 AD3d 608, 609 [1st Dept 2016]), and was otherwise insufficient to raise a triable issue as to the adequacy of defendants' supervision or the safety of the facilities (see David v County of Suffolk, 1 NY3d 525 [2003] Greenberg).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 25, 2017

CLERK