Scavelli v. Town of Carmel

• Decision Date: 26 August 2015
• Docket Number: 2013-04665
• Citation: Scavelli v. Town of Carmel, 2015 NY Slip Op 6666, 131 A.D.3d 688, 15 N.Y.S.3d 214 (N.Y. App. Div. 2015)
• Parties: Jonathan SCAVELLI, etc., et al., respondents, v. TOWN OF CARMEL, defendant, Mahopac Central School District, et al., appellants.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 688

15 N.Y.S.3d 214

2015 N.Y. Slip Op. 06666

Jonathan SCAVELLI, etc., et al., respondents

v. TOWN OF CARMEL, defendantMahopac Central School District, et al., appellants.

2013-04665

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

Aug. 26, 2015.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant Mahopac Central School District.

Thomas Moore (Andrea G. Sawyers, Melville, N.Y. [David R. Holland and Jennifer M. Belk], of counsel), for appellant Jordan Maher.

Lisa Michael & Associates, P.C., New York, N.Y., for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY and BETSY BARROS, JJ.

Opinion

In an action to recover damages for personal injuries, etc., the defendant Jordan Maher appeals, and the defendant Mahopac Central School District separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Putnam County (Lubell, J.), dated March 25, 2013, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed, on the law, with one bill of costs, and the appellants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them are granted.

The plaintiff Jonathan Scavelli (hereinafter the infant plaintiff) allegedly was injured during a “speedball” game conducted in an eighth-grade physical education class at Mahopac Middle School. According to the infant plaintiff, he was injured when a fellow student, the defendant Jordan Maher, tripped him while they were both going for the same ball. The plaintiffs commenced this action against, among others, Maher and the defendant Mahopac Central School District (hereinafter the School District). With respect to the School District, the plaintiffs asserted causes of action alleging negligent supervision and instruction. With respect to Maher, the plaintiffs asserted causes of action alleging negligence and recklessness. Maher and the School District (hereinafter together the defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied both motions. The defendants appeal, and we reverse.

The Supreme Court should have granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them. During his General Municipal Law § 50–h hearing, the infant plaintiff testified that his gym teacher had instructed the students, prior to the game, that speedball was a “no contact” sport where players on two teams pass the ball to their teammates and seek to score goals from behind a cone line. Play begins with a “jump ball,” and the accident occurred as the infant plaintiff and Maher were chasing the ball immediately after the jump. The infant plaintiff testified, “I really don't know if [Maher] tripped me on purpose ... I felt like he stuck his foot out, but I cannot be sure.” The infant plaintiff described the gym teacher's role during the game as that of a referee. At a deposition conducted almost two years later, the infant plaintiff contradicted his earlier General Municipal Law § 50–h hearing testimony in three respects: he testified that the gym teacher had not instructed the students to avoid bodily contact, that the gym teacher did not act as a referee and did not do “much of anything” except talk to other students who were not playing, and that Maher had intentionally tripped him while running for the ball because Maher was an aggressive player who had shoved a different student during gym class on an earlier date. Each of these inconsistencies is significant, and not “minor” as described by our dissenting colleague, as each one goes to the heart of the plaintiffs' allegations regarding the nature of the accident and the instruction and supervision provided by the School District. In any event, according to the infant plaintiff, the gym teacher came to his aid within approximately 10 seconds of the accident. Maher testified at his deposition that he was not aware that any accident had even happened until after the game was over. The gym teacher testified at his deposition that he observed an “accidental trip” as two students were running for the same ball.

Maher demonstrated his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. In support of his motion, Maher submitted the transcripts of the infant plaintiff's General Municipal Law § 50–h hearing testimony, the infant plaintiff's deposition testimony, and his own deposition testimony, which established, prima facie, that Maher was not negligent. The mere happening of an accident, in and of itself, does not establish liability of a defendant (see Foley v. Golub Corp., 252 A.D.2d 905, 908, 676 N.Y.S.2d 308 ). Both the infant plaintiff and Maher testified that the accident occurred when they both ran toward the ball immediately after the jump ball. The infant plaintiff's deposition testimony that Maher intentionally tripped him is conclusory and speculative in light of the infant plaintiff's testimony that he was concentrating on the ball at the time of the accident (see Fraioli v. City of New York, 6 A.D.3d 657, 658, 775 N.Y.S.2d 559 ). In any event, such evidence would not present a triable issues of fact as to Maher's alleged negligence, as an intentional state of mind is not an element of the cause of action alleging negligence against Maher (see McGovern v. Weis, 265 App.Div. 367, 39 N.Y.S.2d 115 ), and the plaintiffs have not alleged a cause of action for an intentional tort. We decline to find that Maher's mere conduct of running for a ball during a sporting event raises questions, in and of itself, of negligence. In opposition to Maher's prima facie showing, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' submissions failed to raise a triable issue of fact as to how or in what manner Maher's running was negligent or reckless, as opposed to being an unfortunate non-negligent accident between two competitors in close proximity to each other.

The School District's submissions, including an affidavit of a physical education expert, established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it (see David v. County of Suffolk, 1 N.Y.3d 525, 526, 775 N.Y.S.2d 229, 807 N.E.2d 278 ; Peuplie v. Longwood Cent. School Dist., 49 A.D.3d 837, 839, 854 N.Y.S.2d 491 ). The evidence submitted by the School District demonstrates that the incident occurred so quickly that it could not have been prevented by even the most intense supervision (see Thomas v. City of New York, 124 A.D.3d 872, 2 N.Y.S.3d 578 ; Odekirk v. Bellmore–Merrick Cent. School Dist., 70 A.D.3d 910, 895 N.Y.S.2d 184 ; Mayer v. Mahopac Cent. School Dist., 29 A.D.3d 653, 815 N.Y.S.2d 189 ; Siegall v. Herricks Union Free School Dist., 7 A.D.3d 607, 777 N.Y.S.2d 148 ; Opalek v. West Islip Union Free School Dist., 1 A.D.3d 491, 767 N.Y.S.2d 231 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see O'Brien v. Sayville Union Free School Dist., 87 A.D.3d 569, 928 N.Y.S.2d 85 ). While the plaintiffs emphasize that there is evidence in the record indicating that Maher had shoved another student in a gym class on an earlier date, this evidence was insufficiently specific to place the School District on notice of the conduct that led to the infant plaintiff's injuries (see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Thomas v. City of New York, 124 A.D.3d at 873–874, 2 N.Y.S.3d 578 ). Finally, while the compulsory nature of the gym class activities precludes an assumption of risk defense, it is not an impediment to summary judgment, as it does not deprive the School District of its defense that the incident was sudden and unexpected (see Knightner v. William Floyd Union Free School Dist., 51 A.D.3d 876, 857 N.Y.S.2d 726 ; Mayer v. Mahopac Cent. School Dist., 29 A.D.3d 653, 655, 815 N.Y.S.2d 189 ; Sangineto v. Mamaroneck Union Free School Dist., 282 A.D.2d 596, 723 N.Y.S.2d 234 ).

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court should have granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

DILLON, J.P., DICKERSON and BARROS, JJ., concur.

DUFFY, J., dissents and votes to affirm the order of the Supreme Court, with the following memorandum.

I disagree with the majority and would affirm the Supreme Court's order insofar as it relates to the defendant Mahopac Central School District and, insofar as it relates to the defendant Jordan Maher, I would affirm on different grounds.

According to the infant plaintiff, he was injured when another student tripped him while they were participating in a new game, referred to as “speedball,” during gym class. The transcripts of the deposition testimony of Maher, the infant plaintiff, and the gym teacher, and of the plaintiff's General Municipal Law § 50–h hearing, which were submitted in support of the motions of Maher and the School District (hereinafter together the defendants), failed to eliminate triable issues of fact as to whether the gym teacher provided sufficient instruction to the students prior to the game as to how to safely play this new game, as to whether there was adequate supervision during the game, and as to whether the conduct of Maher was negligent or reckless. Thus, I disagree with the majority's determination that Maher and the School District each established their prima facie entitlement to judgment as a matter of law.

A defendant moving for summary judgment has the initial burden of proffering evidence in admissible form demonstrating,...