The defendant moves for summary judgment dismissing the plaintiffs' complaint. The relevant facts are not in dispute on this application. The infant plaintiff, Max Rosenthal, was allegedly injured while participating in a game during gym class. The game involved hitting a foam-like ball with a plastic handled bat that had a foam head. Students who were awaiting their turn at bat were positioned by the teacher in a "safety zone" behind orange safety cones placed twenty-five feet away from the batter along what would normally be the third-base line of a baseball diamond. While standing in line in the safety zone waiting his turn, the infant plaintiff was struck in the nose by a bat after a batter let go of the bat during his swing.

It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

A teacher's duty to supervise the students in his or her charge is "to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances." (Hoose v. S.S. Drumm, 281 NY 54, 57-58 [1939] rearg den 286 NY 568 [1941].) "Schools are not insurers of safety...for they cannot reasonably be expected to continuously supervise and control all movements and activities of students." (Mirand v. City of New York, 84 NY2d 44, 49 [1994].) [*2]In determining whether a school district has breached its duty to provide adequate supervision, a plaintiff must establish that authorities had notice of the dangerous conduct causing the injuries or that such acts by other students could reasonably have been anticipated. (Mirand, supra at pg. 49.)

On this application, the defendant has established, on a prima facie basis, that it took reasonable and prudent measures to ensure the safety of the students involved in the particular physical education activity which resulted in the infant plaintiff's alleged injury. Specifically, the defendant has established that students were using a foam-like ball and a foam bat with a plastic handle. In addition, to insure that the students did not inadvertently get struck by a batter, they were positioned, single file, twenty-five feet away from the batter along the third-base line behind plastic orange cones. The defendant has established that it had no notice of any special danger which might exist if a batter were to unexpectedly release a plastic handled foam bat at a distance of more than twenty-five feet from a student. (Lawes v. Board of Education of the City of New York, 16 NY2d 302, 305 [1965].)

In response, the plaintiffs have failed to establish that there are triable issues of fact. The plaintiffs have submitted no evidence that the school district and the teachers supervising the physical education class failed to exercise such care for the students as a parent of ordinary prudence would observe in comparable circumstances. The plaintiffs have failed to submit any credible evidence that each of the precautions undertaken during the activity in question was unreasonable or to establish that the defendant's supervision of the infant plaintiff was inadequate. (David v. County of Suffolk, 1 NY3d 525, 526 [2003].) For all of the foregoing reasons, it is ordered that the defendant's motion for summary judgment is granted and the plaintiffs' complaint is dismissed.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Notice of Motion.........................1-2

Affirmation-Moran...................1-21

Exhibits............................A-G

2.Affirmation in Opposition-Burke..........1-9

Exhibits............................A-D

3.Reply Affirmation-Moran..................1-16

Exhibits............................H-K

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

July 18, 2008

ENTER

[*3]

HON. JAMES D. PAGONES, A.J.S.C.

071808 decision & order