Passantino v. Bd. of Educ. of the City of New York , 41 N.Y. 1022 ( 1977 )

41 N.Y.2d 1022 (1977)

Roy C. Passantino, an Infant, by His Father and Natural Guardian, Robert C. Passantino, et al., Respondents,
v.
Board of Education of the City of New York, Appellant, et al., Defendant.

Court of Appeals of the State of New York.

Argued March 21, 1977. Decided April 26, 1977.

W. Bernard Richland, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for appellant.

Joseph P. Napoli and Sherman P. Rothman for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

MEMORANDUM.

The order of the Appellate Division should be reversed.

Upon our review of the facts in this record, as set forth in the dissenting opinion of Mr. Justice COHALAN at the Appellate Division, it is apparent that the plaintiff failed to establish a prima facie case at trial. There was no showing of negligence or lack of due care on the part of the defendant board of education. Therefore, the defendants' motion to dismiss the complaint, made at the end of the entire case, should have been granted.

Order reversed, with costs, and the complaint dismissed in a memorandum.