F.P v. v. City of New York , 2019 NY Slip Op 1173 ( 2019 )

F.P.V. v City of New York (2019 NY Slip Op 01173)

F.P.V. v City of New York

2019 NY Slip Op 01173

Decided on February 19, 2019

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 February 19, 2019
Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.

8426 350127/13

[*1]F.P.V., etc., et al., Plaintiffs-Respondents,

v

City of New York, et al., Defendants-Appellants.

Zachary W. Carter, Corporation Counsel, New York (Fay Ng of counsel), for appellants.

Greenberg & Stein, P.C., New York (Ian Asch of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about April 20, 2017, which, to the extent appealed from as limited by the briefs, denied the motion of defendants New York City Department of Education and New York City Board of Education (collectively DOE) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

DOE satisfied its entitlement to judgment as a matter of law by submitting evidence showing that infant plaintiff's injury was caused while he was participating in a game of "Bulldog" in gym class when a fellow student suddenly and unexpectedly collided with him, which was a spontaneous act, and that no additional supervision could have prevented the injury (see M.V. v City of New York, 149 AD3d 641 [1st Dept 2017]; Chynna A. v City of New York, 143 AD3d 623 [1st Dept 2016]).

Under the circumstances, including how the game was played, the number of students and the size of the gym space, plaintiff established that there are issues of fact warranting a trial.

We have considered DOE's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 19, 2019

CLERK