Gille v. Long Beach City Sch. Dist.

• Decision Date: 17 May 2011
• Citation: 267 Ed. Law Rep. 326,2011 N.Y. Slip Op. 04202,84 A.D.3d 1022,923 N.Y.S.2d 649
• Parties: Isabella GILLE, etc., et al., appellants,v.LONG BEACH CITY SCHOOL DISTRICT, et al., respondents.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1022

923 N.Y.S.2d 649

267 Ed. Law Rep. 326

2011 N.Y. Slip Op. 04202

Isabella GILLE, etc., et al., appellants,

v.LONG BEACH CITY SCHOOL DISTRICT, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 17, 2011.

Miller & Miller, Brooklyn, N.Y. (Andrew R. Miller of counsel), for appellants.Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for respondents.JOSEPH COVELLO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Mahon, J.), entered December 9, 2009, which granted the motion of the defendant Long Beach City School District for summary judgment dismissing the complaint insofar as asserted against it and denied, as academic, their cross motion to strike the answer of the defendant Long Beach City School District or to preclude it from asserting certain defenses based upon spoliation of evidence.

ORDERED that the order is reversed, on the law, with costs, the motion of the defendant Long Beach City School District for summary judgment dismissing the complaint insofar as asserted against it is denied, and the matter is remitted to the Supreme Court, Nassau County, for determination of the cross motion on the merits.

While attending school in the Long Beach City School District (hereinafter the school district), the infant plaintiff allegedly was injured when a window shade fell and struck him in the head and eye. The plaintiffs commenced the instant action to recover damages for personal injuries based on the defendants' negligence asserting, inter alia, theories of liability based on premises liability and negligent supervision.

After joinder of issue and discovery, the school district moved for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiffs cross-moved, pursuant to CPLR 3126, to strike the school district's answer or to preclude them from asserting certain defenses based upon spoliation of evidence. The Supreme Court granted the school district's motion and denied the plaintiffs' cross motion as academic. The plaintiffs appeal. We reverse.

Here, while the school district met its prima facie burden of proof of affirmatively demonstrating its entitlement to judgment as a matter of law ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572), in opposition, the plaintiffs raised triable issues of fact with respect to, inter alia, whether the school district negligently supervised the infant plaintiff and his classmates and whether the school district had actual or constructive notice of the defective condition ( see Kandkhorov v. Pinkhasov, 302 A.D.2d 432, 756 N.Y.S.2d 65; Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 916 N.Y.S.2d 137; Giulini v. Union Free School Dist. # 1, 70 A.D.3d 632, 895 N.Y.S.2d 453). Resolving questions of credibility, determining the accuracy...