David v. County of Suffolk

• Decision Date: 20 November 2003
• Citation: David v. County of Suffolk, 1 NY3d 525, 775 NYS2d 229, 807 N.E.2d 278 (N.Y. 2003)
• Parties: NICOLE DAVID et al., Appellants, v. COUNTY OF SUFFOLK, Defendant, and SMITHTOWN CENTRAL SCHOOL DISTRICT, Respondent.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 525

807 N.E.2d 278

775 N.Y.S.2d 229

NICOLE DAVID et al., Appellants, v. COUNTY OF SUFFOLK, Defendant, and SMITHTOWN CENTRAL SCHOOL DISTRICT, Respondent.

Court of Appeals of the State of New York.

Argued October 22, 2003.

Decided November 20, 2003.

Silberstein, Awad & Miklos, P.C., Garden City (Joseph P. Awad and Paul N. Nadler of counsel), for appellants. Ahmuty, Demers & McManus, Alberston (Brendan T. Fitzpatrick of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

We agree with Supreme Court and the Appellate Division that defendant Smithtown Central School District demonstrated its entitlement to summary judgment dismissing plaintiffs' negligent supervision claim. The infant plaintiff was injured in her second-grade gym class while participating in a cargo net climbing exercise. Although we have recognized that "[s]chools are not insurers of safety," they are obligated to exercise such care of their students "as a parent of ordinary prudence would observe in comparable circumstances" (Mirand v City of New York, 84 NY2d 44, 49 [1994], citing Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 306 [1965]). In support of its motion for summary judgment, defendant relied on the deposition testimony of the physical education teacher supervising the class, who explained that he instructed the students on net climbing, demonstrated proper techniques and was 10 to 12 steps away from the infant plaintiff when she fell. The expert affidavit plaintiffs offered in response failed to establish the foundation...