Hernandez ex rel. Sanchez v. St. Stephen of Hungary Sch.

• Decision Date: 27 April 2010
• Citation: 900 N.Y.S.2d 43,72 A.D.3d 595
• Parties: Jonathan HERNANDEZ, by his Mother and Natural Guardian, Idalia SANCHEZ, et al., Plaintiffs-Appellants, v. ST. STEPHEN OF HUNGARY SCHOOL, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 43

72 A.D.3d 595

Jonathan HERNANDEZ, by his Mother and Natural Guardian, Idalia SANCHEZ, et al., Plaintiffs-Appellants,

v.ST. STEPHEN OF HUNGARY SCHOOL, Defendant-Respondent.

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

April 27, 2010.

Philip J. Sporn & Associates, Bronx (Robert J. DiGianni, Jr. of counsel), for appellants.

Leahey & Johnson, P.C., New York (Peter James Johnson, Jr. of counsel), for respondent.

TOM, J.P., MAZZARELLI, ANDRIAS, SAXE, DeGRASSE, JJ.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered January 27, 2009, which, to the extent appealable, denied plaintiffs' motion to renew a prior order granting defendant summary judgment dismissing the complaint, and granted defendant's show cause order to preclude plaintiffs from offering deposition testimony as proof on their motion, unanimously affirmed, without costs.

This is an action for negligent supervision of an after-school program where the infant plaintiff was injured in a Wiffle ball game. Plaintiffs failed to establish that the court overlooked or misapprehended the facts or the law, or was otherwise mistaken in its earlier decision ( see William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 588 N.Y.S.2d 8 [1992], lv. dismissed 80 N.Y.2d 1005, 592 N.Y.S.2d 665, 607 N.E.2d 812 [1992] ), and in any event, no appeal lies from a denial of reargument.

Renewal was properly denied when plaintiffs were unable to explain why the purportedly new evidence-deposition testimony or a supporting affidavit-was not submitted on the original motion ( see Anthoine v. Lord, Bissell & Brook, 295 A.D.2d 293, 744 N.Y.S.2d 666 [2002] ). In any event, plaintiffs were still unable to offer competent proof of unreasonable, enhanced or unforeseen risks in this activity that would establish a breach of duty to a voluntary participant ( see e.g. Cuesta v. Immaculate Conception R.C. Church, 168 A.D.2d 411, 562 N.Y.S.2d 537 [1990] ), or negligence in defendant's supervision of the activity ( see Siegell v. Herricks Union Free School Dist., 7 A.D.3d 607, 777 N.Y.S.2d 148 [2004] ).