Farrukh by Farrukh v. Board of Educ. of City of New York

• Decision Date: 13 May 1996
• Parties: , 110 Ed. Law Rep. 323 Sheraz FARRUKH, an Infant, by His Mother and Natural Guardian, Iffat FARRUKH, Appellants, v. BOARD OF EDUCATION OF CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 118

643 N.Y.S.2d 118

227 A.D.2d 440, 110 Ed. Law Rep. 323

Sheraz FARRUKH, an Infant, by His Mother and Natural Guardian, Iffat FARRUKH, Appellants, v. BOARD OF EDUCATION OF CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division,

Second Department.

May 13, 1996.

Silberstein, Awad & Miklos, P.C., Great Neck (Joseph Miklos, Meryl R. Neuren, and Paul N. Nadler, of counsel), for appellants.

Paul A. Crotty, Corporation Counsel, New York City (Larry A. Sonnenshein and Julian L. Kalkstein, of counsel), for respondent.

Before SANTUCCI, J.P., and ALTMAN, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Price, J.), dated March 18, 1994, which, upon the granting of the branch of the defendant's motion pursuant to CPLR 4401 which was to dismiss the cause of action to recover damages for inadequate supervision, and upon a jury verdict in favor of the defendant on the remaining cause of action to recover damages for negligence, in effect dismissed the complaint.

ORDERED that the judgment is reversed, on the law and the facts, the branch of the defendant's motion pursuant to CPLR 4401 which was to dismiss the cause of action to recover damages for inadequate supervision is denied, the complaint is reinstated, and a new trial is granted, with costs to abide the event.

The infant plaintiff, Sheraz Farrukh, who has Downs Syndrome, was injured when he was with his Special Education classmates and two teachers playing in the front of his school gymnasium. He walked after a ball that had rolled away and an unsecured wood platform that had been resting against the back wall of the gym fell on him. Sheraz and his mother commenced this action against the defendant, the Board of Education of the City of New York, to recover damages for inadequate supervision and negligence. A trial was conducted. At the close of the plaintiff's case, the Supreme Court granted the branch of the defendant's motion pursuant to CPLR 4401 which was to dismiss the cause of action to recover damages for inadequate supervision, and thereafter the jury reached a verdict for the defendant on the cause of action to recover damages for negligence. On appeal, the plaintiffs argue that the jury verdict should be set aside and that the Supreme Court erred in dismissing the cause of action to recover damages for inadequate supervision.

"[A] jury verdict [may be set aside] and * * * a new trial [may be granted] when the jury's determination is palpably incorrect and a substantial injustice * * * done if the verdict were sustained" (Nordhauser v. New York City Health & Hosps. Corp., 176 A.D.2d 787, 789, 575 N.Y.S.2d 117). A weight of the evidence analysis involves the discretionary balancing of many factors (see, Finkel v. Benoit, 211 A.D.2d 749, 622 N.Y.S.2d 295). The operative factor in a determination that the jury's verdict should be set aside is a finding that the jury could not have reached that verdict by any fair interpretation of the evidence (see, Grassi v. Ulrich, 87 N.Y.2d 954, 641 N.Y.S.2d 588, 664 N.E.2d 499; Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184). On this record, the jury's finding that the defendant was not negligent was against the weight of the evidence.

Moreover, the court erred in dismissing the cause of action to recover damages for inadequate supervision as a matter of law. Under CPLR 4401, to be entitled to judgment as a matter of law, the defendant movant has the burden...