White v Mount St. Michael High School
2007 NY Slip Op 05331 [41 AD3d 220]
Decided on June 14, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on June 14, 2007
Mazzarelli, J.P., Sullivan, Buckley, Sweeny, Catterson, JJ.

1353
Index 14796/05

[*1]Christopher White, Jr., etc., Plaintiff-Respondent,

v

Mount Saint Michael High School, Defendant-Appellant.





Biedermann, Hoenig & Ruff, P.C., New York (Philip C.
Semprevivo, Jr. of counsel), for appellant.
Law Offices of Gerald P. Gross, Cedarhurst (Mitchell J. Rich of
counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered November 27, 2006, which denied defendant's motion for summary judgment dismissing plaintiff's complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

The infant plaintiff allegedly was injured during gym class while playing in a game of line soccer. Inasmuch as the evidence of record demonstrates that the infant plaintiff's injury was not attributable to inadequate supervision, but rather to a spontaneous and unforseeable act, defendant's motion for summary judgment dismissing the complaint should have been granted (see e.g. Wuest v Board of Educ. of Middle Country Cent. School Dist., 298 AD2d 578 [2002]). Plaintiff's expert's affidavit was
insufficient to raise a triable issue as to the adequacy of defendant's supervision (see David v County of Suffolk, 1 NY3d 525 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2007

CLERK