Opinion
8933/02.
Decided June 25, 2004.
Defendant The Board of Education of the City of New York moves for summary judgment.
This is an action for personal injury arising when ten year old plaintiff sustained a laceration to her thumb while she was a student at P.S. 64, at 82-01, 101 Avenue, Queens County on September 7, 2001.
Summary judgment is a drastic remedy and should not be granted when there is any doubt of the existence of a triable issue or where the issue is even arguable ( Andre v. Pomeroy, 35 NY2d 361; Cohen v. Herbal Concepts, Inc., 100 AD2d 175 [1st Dept. 1984], aff'd 63 NY2d 379).
A party moving for summary judgment is obliged to prove through admissible evidence that the movant is entitled to judgment as a matter of law ( Zuckerman v. City of New York, 49 NY2d 557), and has the heavy burden of demonstrating the absence of a genuine issue of material fact on every relevant issue raised ( Simon v. Wohl, 93 AD2d 818 [2d Dept. 1983]). Anything less requires a denial of the motion for summary judgment, regardless of the sufficiency of the in opposing papers ( Yates v. Dow Chemical Co., 68 AD2d 907 [2d Dept. 1979]).
In determining whether a triable issue of fact exists, the court must accept the version of the facts set forth by the opponent of the summary judgment motion ( Menzel v. Plotnick, 202 AD2d 558 [2d Dept. 1994]). The non-moving party, is entitled to every favorable inference which may be drawn from the facts and documents of record ( Blake v. Veeder Realty, Inc., 110 AD2d 1007 [3d Dept. 1985]).
Schools must adequately supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (see, Laws v. Board of Education, 16 NY2d 302; Decker v. Dundee Cent. School District, 4 NY2d 462). The standard of care of a teacher (or supervisor) is to "Exercise such care as a parent of ordinary prudence would observe in comparable circumstances" ( Hoose v. Drumm, 281 NY 54, 57-58). In Addition, a school is not an usurer and will be held liable for students safety only for foreseeable injuries proximately related to the absence of supervision (see, Hawley v. Hornbeck, 127 AD2d 905) Not an unintentional accident as here.
Plaintiff testified that the scissors (which were on the school supply list) were in her box with other supplies. She gave them to her friend during Journal class, when everyone was doing a writing assignment. The substitute teacher was at her desk at that time and when plaintiff attempted to get her scissors back, her thumb got "snipped".
This testimony fails to show a lack of supervision or that the accident was a normal and foreseeable consequence of that situation.
No constructive or actual notice of prior similar conduct exists. Finally "school personnel cannot reasonably be expected to guard against all sudden, spontaneous acts that take place daily; an injury caused by the impulsive, unanticipated act of a fellow student ordinarily would not give rise to a finding of negligence . . ." (Mirand v. City of NY, 84 NY2d 44, 50).
The affidavits of the plaintiff parent as well as Jeanmarie Wink, who were neither present nor witnessed the accident, as well as counsel, lack probative value.
Accordingly, defendant's motion for summary judgment is granted and the action is dismissed.