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PLAINTIFF WAS INJURED DURING A WATER POLO GAME IN GYM CLASS; HIS NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined a student’s negligent supervision cause of action against the school district stemming from injuries during a water polo game in gym class properly survived summary judgment. Plaintiff alleged his head hit the bottom of the pool:

… [D]efendants failed to meet their initial burden inasmuch as their own submissions on the motion raise triable issues of fact whether they engaged in negligent supervision and whether that negligence was a proximate cause of plaintiff’s injuries. While defendants’ submissions established that the physical education teacher who supervised water polo had modified the typical rules thereof to prevent contact, defendants’ papers raise issues of fact whether those rules were enforced, the water polo game as modified was safe and age-appropriate, and the supervision of the game was reasonable under the circumstances. Among other things, defendants submitted the deposition of the physical education teacher, wherein he provided conflicting testimony as to whether he actually allowed contact during the water polo game and whether he allowed students to take the ball from each other. His testimony therefore created an issue of fact whether defendants had notice of students engaging in dangerous conduct similar to the conduct that caused plaintiff’s injuries and, thus, whether such conduct was preventable … . Zalewski v East Rochester Bd. of Educ., 2021 NY Slip Op 02700, Fourth Dept 4-30-21

 

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THE HOSPITAL DEFENDANT WAS PROPERLY PRECLUDED FROM PRESENTING THE CPLR ARTICLE 16 DEFENSE AFTER THE OTHER POTENTIALLY LIABLE DEFENDANTS HAD BEEN SEVERED FROM THE ACTION AT THE HOSPITAL DEFENDANT’S REQUEST, AND AFTER THE HOSPITAL DEFENDANT HAD REPRESENTED TO THE COURT THE OTHER POTENTIALLY LIABLE DEFENDANTS WOULD NOT BE PART OF THE TRIAL, TWO JUSTICE DISSENT, THE HOSPITAL DEFENDANT’S REQUEST FOR THE ERROR IN JUDGMENT JURY INSTRUCTION WAS PROPERLY DENIED (FOURTH DEPT).
SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).
THE DETERIORATION OF THE RELATIONSHIP BETWEEN FATHER AND MOTHER WAS A SUFFICIENT CHANGE IN CIRCUMSTANCES TO WARRANT AN INQUIRY RE: FATHER’S PETITION FOR A MODIFICATION OF CUSTODY; AFTER CONSIDERING THE MERITS, THE APPELLATE COURT AWARDED SOLE CUSTODY TO FATHER (FOURTH DEPT).
INVESTIGATING A MALFUNCTION CONSTITUTES COVERED REPAIR UNDER LABOR LAW 240(1).
Evidence Seized in Search Suppressed, Police Officer Did Not Have a Founded Suspicion of Criminal Activity When He Questioned Defendant
DEFENDANT’S SENTENCE REDUCED FROM 12 TO FIVE YEARS BASED UPON THE PLEA OFFERS, THE LACK OF PRIOR FELONY CONVICTIONS, DEFENDANT’S MENTAL HEALTH ISSUES, AND THE VICTIMS’ OPPOSITION TO INCARCERATION (FOURTH DEPT). ​
EVIDENCE DID NOT SUPPORT FINDING THAT RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD, NEGLECT DETERMINATION CANNOT STAND (FOURTH DEPT).

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