Christopher Tzimopoulos, a minor by his father and natural guardian, George Tzimopoulos, et al., appellants,
Plainview-Old Bethpage Central School District, et al., respondents. Index No. 602607/12
- October 26, 2017
E. Bardavid, New York, NY, for appellants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis
& Fishlinger, Uniondale, NY (Christine Gasser of
counsel), for respondents.
RANDALL T. ENG, P.J. REINALDO E. RIVERA SHERI S. ROMAN
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court, Nassau
County (Diamond, J.), entered July 21, 2015, which granted
the defendants' motion for summary judgment dismissing
that the order is affirmed, with costs.
September 2011, the plaintiff Christopher Tzimopoulos
(hereinafter the infant plaintiff), then a third-grade
student, allegedly was injured during school recess when
another child accidentally collided with him as they ran to
retrieve a ball during a game of "wall ball." At
the time of the accident, the infant plaintiff, who has
cerebral palsy, was under the supervision of a special
education aide who had been assigned to provide one-on-one
assistance to him, and who was standing approximately 10 feet
away from him. The children engaged in the game were also
under the supervision of their physical education teacher.
infant plaintiff, by his father and natural guardian, and his
father, individually, commenced this action alleging, inter
alia, that the defendants were negligent in failing to
provide adequate supervision, and in allowing the infant
plaintiff to participate in the wall ball game. After
depositions had been conducted, the defendants moved for
summary judgment dismissing the complaint, contending that
they provided adequate supervision to the children during
recess, that the infant plaintiffs Individualized Education
Plan did not restrict him from playing during recess, and
that, in any event, any alleged failure to provide adequate
supervision was not a proximate cause of the infant
plaintiffs injuries because the collision occurred suddenly
and unexpectedly. The Supreme Court granted the
defendants' motion, and the plaintiffs appeal.
are under a duty to adequately supervise the students in
their charge and they will be held liable for foreseeable
injuries proximately related to the absence of adequate
supervision" (Mirand v City of New York, 84
N.Y.2d 44, 49; see Perez v Comsewogue Sch. Dist.,
141 A.D.3d 577). Schools are not, however, insurers of their
students' safety, and may not be held liable
"'for every thoughtless or careless act by which one
pupil may injure another'" (Mirand v City of New
York, 84 N.Y.2d at 49, quoting Lawes v Board of
Educ. of City of N.Y., 16 N.Y.2d 302, 306). Moreover,
when an accident occurs in so short a span of time that even
the most intense supervision could not have prevented it, any
lack of supervision is not a proximate cause of the injury
(see Santos v City of New York, 138 A.D.3d 968, 969;
Goldschmidt v City of New York, 123 A.D.3d 1087;
Gomez v Our Lady of Fatima Church, 117 A.D.3d 987).
the defendants established their prima facie entitlement to
judgment as a matter of law by demonstrating that they
provided adequate supervision to the infant plaintiff during
recess (see Perez v Comsewogue Sch. Dist., 141
A.D.3d at 578; Paragas v Comsewogue Union Free School
Dist.,65 A.D.3d 1111, 1112; Troiani v White Plains
City School Dist.,64 A.D.3d 701, 702) and, in any
event, that the accident was caused by a sudden and
spontaneous collision which could not have been prevented by
more intense supervision (see Perez v Comsewogue Sch.
Dist., 141 A.D.3d at 578; Santos v City of New
York, 138 A.D.3d at 969; Brian O. v Riverhead Cent.
School Dist.,95 A.D.3d 1086; Paragas v Comsewogue
Union Free School Dist. 65 A.D.3d at 1112; Doyle v
Binghamton City School Dist.,60 A.D.3d 1127, 1128;
Ancewicz v Western Suffolk BOCES,2 ...