D. O. v Economic Opportunity Council of Suffolk, Inc.
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Attorneys and Parties
Brief Summary
Child care/day care personal injury liability involving alleged premises defects and negligent supervision after a child fell from a slide at a day care center.
The Supreme Court, Suffolk County, granted summary judgment dismissing the entire complaint and denied the plaintiff's post-note-of-issue cross-motion to amend the bill of particulars under CPLR 3025 [governs amendment of pleadings and bills of particulars].
The Appellate Division reversed only the dismissal of the negligent supervision cause of action and otherwise affirmed, including the dismissal of the premises liability claim and the denial of leave to amend the bill of particulars.
The defendants established prima facie that the slide and playset were not defective, but they failed to establish prima facie that supervision was adequate or that any lack of supervision was not a proximate cause of the injury. Their own proof showed the care provider turned her back to tie another child's shoe and did not see the plaintiff until she was already on the ground.
Background
The plaintiff, an infant, alleged that in July 2019 she was injured when she fell from a slide at a day care center owned and operated by the defendants. The complaint and bills of particulars alleged both a dangerous or defective condition involving the slide and negligent supervision of the play area. After the plaintiff filed a note of issue and certificate of readiness in October 2022, the defendants moved for summary judgment dismissing the complaint. The plaintiff opposed and cross-moved for leave to amend the bill of particulars to add a new theory.
Lower Court Decision
The lower court granted the defendants' motion for summary judgment dismissing the complaint in its entirety and denied the plaintiff's cross-motion to amend. It effectively rejected both the premises liability and negligent supervision theories and refused the late amendment because it came after discovery and certification for trial.
Appellate Division Reversal
The Appellate Division modified the order by denying summary judgment on the negligent supervision claim. It held that the defendants did not eliminate triable issues of fact because the care provider testified she was trained to keep children in sight in the gym, yet admitted she had her back turned while tying another child's shoe and did not observe the plaintiff's fall. The court otherwise affirmed because the defendants' experts showed the slide and playset were defect free, the plaintiff failed to raise a triable issue on premises liability, and the proposed amendment to the bill of particulars asserted a new theory too late and was prejudicial.
Legal Significance
This decision highlights two recurring New York civil practice principles. First, after discovery is complete and a case has been certified for trial, amendment of a bill of particulars under CPLR 3025 [governs amendment of pleadings and bills of particulars] requires a strong showing, especially where the amendment introduces a new theory of liability in response to summary judgment. Second, in child supervision cases, defendants seeking summary judgment must affirmatively establish adequate supervision or lack of causal connection; if their own evidence suggests the supervising adult was not watching the child, summary judgment is improper.
A day care defendant may defeat a premises defect claim with competent expert proof that equipment was not defective, but it cannot win summary judgment on negligent supervision where its own evidence shows the caregiver was distracted and not watching the child at the time of the accident.