SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 8, 1968
LESLIE WEBBER, BY CLIFTON E. WEBBER, HER GUARDIAN AD LITEM, ET AL., APPELLANTS,
CITY OF NEW YORK ET AL., RESPONDENTS
Judgment of the Supreme Court, Queens County, entered November 1, 1967, inter aliain favor of the defendant Board of Education upon the trial court's dismissal of the complaint as to said defendant at the end of a jury trial, reversed, on the law, and new trial granted as against said Board of Education, with costs to abide the event.
Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.
No questions of fact were considered. In this negligence action, the infant plaintiff was injured during the noon school recess while waiting in the prescribed area for the whistle to blow for her to fall into line. Her injury was caused when a student playing basketball on a court laid out by the defendant Board of Education, and adjacent to the prescribed area where plaintiff was, in an attempt to retain possession of the ball, ran off the court and collided with her. The trial court, in dismissing the complaint as against the defendant Board of Education, held that the board had provided general supervision and that was all that was required; and the court could not find any act of commission or omission which could be attributed to the defendant Board of Education that could constitute any negligent conduct. There was evidence from which the jury could have found that the defendant Board of Education was negligent in the set-up of the basketball court, in prescribing an area so close to the court for children to wait and in the supervision of the noon recess activities (cf. Lopez v. City of New York, 4 A.D.2d 48, affd. 4 N.Y.2d 738). Also, the rules of the Board of Education, if any, with respect to noon recess activities and supervision thereof should have been admitted in evidence.
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