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JENNIFER WRAY v. CITY NEW YORK ET AL. (05/23/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


- decided: May 23, 1968.

JENNIFER WRAY, AN INFANT BY HER GUARDIAN AD LITEM HAZEL A. WRAY, ET AL., APPELLANTS,
v.
CITY OF NEW YORK ET AL., RESPONDENTS.

Judgment herein appealed from, unanimously reversed, on the law, with respect to the Board of Education of the City of New York only, the judgment vacated with respect to said Board of Education, and a new trial directed, with $50 costs and disbursements to abide the event. The action was dismissed at the end of the plaintiffs' case. Appellants concede there was no case made out against the City of New York, but urge that triable issues were raised with respect to the questions whether there was a breach of duty in supervision and, if so, was such breach the proximate cause of the accident. We agree. In reversing, however, we do not pass upon the ultimate merits of the cause, after a full trial, but only hold that triable issues of fact were raised which precluded dismissal on the record at that stage of the proceedings (Rivera v. Board of Educ., 11 A.D.2d 7; Gonzalez v. Mackler, 19 A.D.2d 229). Concur - Botein, P.J., Stevens, Eager, Tilzer and McNally, JJ.

19680523

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