Hinz v. Wantagh Union Free Sch. Dist.Hinz v. Wantagh Union Free Sch. Dist.
Published by New York State Law Reporting Bureau pursuant to
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 24, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SANDRA L. SGROI, HECTOR D. LASALLE, JJ.
Kelly Hinz, etc., et al., appellants, v Wantagh Union Free School District, respondent.
Joseph C. Andruzzi, Bethpage, NY, for appellants.
Congdon, Flaherty, O‘Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Christine Gasser of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), entered December 28, 2016, and (2) a judgment of the same court entered January 31, 2017. The order granted the defendant‘s motion for summary judgment dismissing the complaint and denied the plaintiffs’ cross motion for summary judgment on the issue of liability and dismissing the defendant‘s first affirmative defense in its answer. The judgment, upon the order, is in favor of the defendant and against the plaintiffs dismissing the complaint.
ORDERED that the appeal from
ORDERED that the judgment is affirmed; and it further,
ORDERED that one bill of costs is awarded to the defendant.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see
On October 8, 2014, the infant plaintiff, who at the time was a fourth grade student at Wantagh Elementary School in the defendant, Wantagh Union Free School District (hereinafter the District), caught the tip of her left index finger in the hinge-side of a bathroom door as she was exiting the girls’ bathroom, resulting in a crush amputation. At the time of the accident, the infant plaintiff, who was a Type I diabetic, had a one-on-one aide, but went unaccompanied to the girls’ bathroom, with the permission of her classroom teacher. The infant plaintiff, by her mother, and her mother suing derivatively, commenced this action against the District to recover damages for personal injuries, alleging negligent maintenance of the door at issue and negligent supervision of the infant plaintiff. After joinder of issue, the District moved for summary judgment dismissing the complaint on the ground, inter alia, that the lack of an aide accompaniment to the bathroom at the time of the accident was not a proximate cause of the infant plaintiff‘s injuries. The plaintiffs opposed the District‘s motion and cross-moved for summary judgment on the issue of liability and dismissing the District‘s first affirmative defense in its answer. The Supreme Court granted the District‘s motion and denied the plaintiffs’ cross motion. A judgment was subsequently entered, upon the order, which is in favor of the District and against the plaintiffs dismissing the complaint. The plaintiffs appeal from both the order and judgment.
We agree with the Supreme Court‘s determination to grant that branch of the District‘s motion which was for summary judgment dismissing the plaintiffs’ cause of action to recover damages for negligent supervision. While a school district is not an insurer of the safety of its students, since it cannot reasonably
The plaintiffs’ remaining contentions either are without merit or need not be reached in light of our determination.
SCHEINKMAN, P.J., BALKIN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court