The opinion
Moise v City of New York
2024 NY Slip Op 30568(U)
February 22, 2024
Supreme Court, New York County
Docket Number: Index No. 160384/2019
Judge: Hasa A. Kingo
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 02/22/2024 12:48 PM INDEX NO. 160384/2019
NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 02/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
---------------------------------------------------------------------------------X INDEX NO. 160384/2019
CHANELLE A MOISE,
MOTION DATE 02/17/2023
Plaintiff,
MOTION SEQ. NO. 003
-v-
THE CITY OF NEW YORK, THE CHAPIN SCHOOL, DECISION + ORDER ON
MOTION
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 114, 115, 116, 117,
118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138,
139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159,
160, 161, 162, 163, 164, 167, 168, 169, 170
were read on this motion for JUDGMENT - SUMMARY .
With the present motion defendant THE CHAPIN SCHOOL (hereinafter referred to as
“Chapin”) moves, pursuant to CPLR § 3212, for an order granting summary judgment and
dismissal of plaintiff CHANELLE A. MOISE’s (hereinafter referred to as “plaintiff”) complaint
and all associated cross-claims in its favor. Chapin grounds its motion is on the assertion that there
exists no factual basis upon which Chapin can be deemed liable in the instant case. Indeed, Chapin
contends that plaintiff's claims against it fail as a matter of law due to the plaintiff's inability to
demonstrate inadequate supervision or any negligence on Chapin's part. Plaintiff opposes the
motion, and cross-moves for summary judgment as to liability in her favor. Defendant CITY OF
NEW YORK also opposes the respective motions, and the dismissal of all associated cross-claims
against Chapin.
BACKROUND AND ARGUMENTS
Plaintiff’s lawsuit arises out of injuries that plaintiff sustained following an incident that
transpired on March 11, 2019, at 2:00 p.m. on the playground of Carl Schurz Park, situated at East
84th Street and East End Avenue, New York, New York, specifically at the monkey bars. In support
of the instant motion, Chapin argues that the evidence presented establishes that there is
insufficient support for a claim of negligent supervision against Chapin. Indeed, Chapin argues
that plaintiff, who was eighteen years old at the time of the alleged incident, voluntarily signed
herself out of school to visit Carl Schurz Park, located across the street from Chapin, with full
awareness that no Chapin personnel would be present. Chapin further submits that there was no
direction or supervision from Chapin regarding photography activities that transpired at the park
that day. Indeed, Chapin submits that plaintiff's injury resulted from the utilization of playground
equipment that underwent inspection and maintenance by defendant CITY OF NEW YORK.
160384/2019 MOISE, CHANELLE A vs. CITY OF NEW YORK Page 1 of 6
Motion No. 003
1 of 6
[* 1]
FILED: NEW YORK COUNTY CLERK 02/22/2024 12:48 PM INDEX NO. 160384/2019
NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 02/22/2024
Chapin further submits that it was not responsible for the upkeep, maintenance, or inspection of
the playground equipment at Carl Schurz Park.
In Chapin’s view, plaintiff, along with eleven classmates, chose to take a photo on the
monkey bars, placing six girls on top and six girls on the bottom, some holding the bars from
above, thus exceeding the weight capacity designed for small children. Chapin contends that the
structure subsequently collapsed due to overcrowding that Chapin had no control over.
Consequently, Chapin requests that this court to dismiss the action as against it.
In opposition, defendant CITY OF NEW YORK argues that Chapin can be held liable for
“foreseeable injuries proximately related to the absence of adequate supervision” (see Mirand v.
City of New York, 84 NY2d 44 [1994]). Defendant CITY OF NEW YORK takes issue with
Chapin’s contention that plaintiff was completely beyond the scope of Chapin's authority due to
her age and the location of the incident, which occurred outside the physical boundaries of the
Chapin School, across the street in a public park. However, defendant CITY OF NEW YORK
contends that Chapin neglects to recognize the numerous ways in which the school played a role
in plaintiff's presence at the playground where the alleged incident occurred. In defendant CITY
OF NEW YORK’s view, Chapin’s involvement establishes that plaintiff was unquestionably
within Chapin's sphere of influence and control.
Defendant CITY OF NEW YORK further takes issue with Chapin’s focus of plaintiff’s age
and subsequent enrollment in college as a basis to suggest that Chapin may not have had a duty
towards plaintiff at the time of the alleged incident. While age is indeed a relevant factor in
determining the level of supervision owed to a student, it does not negate the existence of such a
duty (see Garcia v. City of New York, 222 AD2d 192 [1st Dept 1996]). Indeed, while Garcia
supports the understanding that the level of supervision differs between a five-year-old and a high
school student, defendant CITY OF NEW YORK underscores that Chapin fails to provide legal
support for its conclusory statements that plaintiff's age and university attendance following the
incident release the school from its duty and responsibility over plaintiff on the date of the incident
when she was still a student at Chapin.
In contrast to Chapin's unsupported assertions, defendant CITY OF NEW YORK contends
that plaintiff was, in fact, under the control of Chapin at the time of the incident. To be sure,
defendant CITY OF NEW YORK highlights that plaintiff attested that the reason she and her
classmates were at the monkey bars was to take a photograph for the school yearbook, as revealed
in plaintiff’s June 7, 2021, Examination Before Trial (“EBT”) transcript (10:23-11:1). Indeed,
plaintiff testified that she belonged to a group of students at Chapin known as the “sole survivors,”
who had attended the school from kindergarten through twelfth grade (id. at 11:2-6). The
photograph was taken by the student yearbook staff for inclusion in the yearbook.
Although plaintiff affirmed that no teacher was physically present during the photograph,
defendant CITY OF NEW YORK underscores that the teacher responsible for the yearbook was
aware of the students’ visit to the park specifically for the purpose of capturing the sole survivor
photograph (id. at 11:25-12:17).
160384/2019 MOISE, CHANELLE A vs. CITY OF NEW YORK Page 2 of 6
Motion No. 003
2 of 6
[* 2]
FILED: NEW YORK COUNTY CLERK 02/22/2024 12:48 PM INDEX NO. 160384/2019
NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 02/22/2024
Moreover, defendant CITY OF NEW YORK highlights that the act of students taking a photograph
on the monkey bars in question for the yearbook was an established annual tradition for the
graduating group of “sole survivors” at the Chapin School. Plaintiff testified that it is customary
for the senior class to have the sole survivor photograph published in the Chapin yearbook. This
tradition not only involves the annual publication of the sole survivor photograph but also
encompasses prior groups taking the photograph on the same set of monkey bars that allegedly
caused plaintiff's injury (id. at 12:14-13:12, 13:7-12).
Defendant CITY OF NEW YORK submits that the Chapin School's participation in the
sole survivor's photograph and plaintiff's presence at the monkey bars in Carl Schurz Park during
the incident are further corroborated by plaintiff’s testimony. Indeed, plaintiff stated that the
students involved in the photograph borrowed uniforms from the school specifically for use in the
photograph. The “sole survivors” group wore uniforms from Chapin’s lower school, garments they
had worn in their earlier years. Plaintiff also noted that adults from Chapin were actively involved
in organizing the photos, including assisting in obtaining the lower school uniforms worn by the
students in the photograph (id. at 12:4-15). Additionally, plaintiff clarified that she would not
categorize the event where students went to the park to take photographs as being solely run by
students (id. 13:3-7).
Defendant CITY OF NEW YORK debunks Chapin’s emphasis on a series of emails
produced during discovery. To be sure, Chapin references a series of emails exchanged among
Chapin staff members after the incident, along with the affidavit from Cathleen Parker (“Parker”),
Chapin’s Director of Health Services. Chapin presents the emails to suggest that the school was
not involved in the photography session preceding plaintiff’s injury. However, defendant CITY
OF NEW YORK underscores that the emails indicate not only information gathering as the school
probed the incident, but confirm that yearbook staff members were present at the park during the
official yearbook photograph session on the date of the incident.
Chapin also relies on Parker’s affidavit in support of its motion. However, defendant CITY
OF NEW YORK argues that the affidavit should be treated as speculative and self-serving as
Chapin fails to specify the source of Parker’s knowledge regarding student safety procedures,
uniform distribution, and school yearbook traditions. Additionally, Parker's affidavit lacks an
explanation of her duties and responsibilities at Chapin, failing to establish her qualifications to
assert the matters stated therein in an admissible form. Even if considered, defendant CITY OF
NEW YORK submits that Parker’s statements merely reference the aforementioned emails and
provide no additional grounds to argue that the school had no involvement in the annual tradition
of the sole survivor yearbook photograph.
Defendant CITY OF NEWK and plaintiff further take issue with Chapin’s assertions,
without legal support, that the photographs were taken solely for Instagram, a claim backed only
by emails sent as Chapin staff sought to investigate the incident post-occurrence. Moreover,
defendant CITY OF NEW YORK and plaintiff challenge Chapin’s contention that plaintiff signing
herself out of the school building before going to the park absolves Chapin of any duty owed to
plaintiff. Contrary to that contention, defendant CITY OF NEW YORK and plaintiff argue that
this assertion is unsupported by any applicable law and contradicted by plaintiff’s own
understanding of the significance of signing out, which she explained was primarily for record-
160384/2019 MOISE, CHANELLE A vs. CITY OF NEW YORK Page 3 of 6
Motion No. 003
3 of 6
[* 3]
FILED: NEW YORK COUNTY CLERK 02/22/2024 12:48 PM INDEX NO. 160384/2019
NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 02/22/2024
keeping purposes in case of emergencies. Furthermore, plaintiff testified that the ability to sign out
was not contingent on being eighteen years old but rather permitted for students starting in ninth
or tenth grade, thus challenging Chapin’s argument.
Contrary to Chapin's selective reliance on self-serving documents to support its claim of
non-involvement in the students’ presence at the playground, defendant CITY OF NEW YORK
submits that plaintiff's testimony directly undermines and contradicts Chapin’s argument. In its
view, plaintiff’s sworn testimony, disputed only by emails whose admissibility remains
unestablished, attests to Chapin's active participation during the event leading to plaintiff's alleged
injury.
Defendant CITY OF NEW YORK further argues that the evidence presented reveals
connections between plaintiff and Chapin, demonstrating that the incident transpired within the
school’s sphere. Specifically, the incident occurred during school hours, and plaintiff reported it to
Chapin. Following the report, Chapin dispatched representatives to investigate. Post-incident,
plaintiff sought medical care from the school nurse, Parker, where another Chapin school
administration member gathered information about the incident. Additionally, Parker, the school
nurse, completed an incident report using Chapin’s resources, emphasizing the school's
contemporaneous authority and control. Collectively, defendant CITY OF NEW YORK contends
that these factors establish Chapin’s direct involvement, responsibility, and control concerning the
subject incident.
Considering these factors holistically, defendant CITY OF NEW YORK submits that
becomes evident that at the time of the incident, the Chapin School held a duty to provide adequate
supervision to plaintiff, who was within its authority, charge, and orbit. Consequently, defendant
CITY OF NEW YORK submits that Chapin’s motion for summary judgment must be denied as
questions of fact persist.
In opposition, and in support of its own cross-motion for judgment in its favor, plaintiff
reiterates many of the arguments levied by defendant CITY OF NEW YORK, and underscores the
fact that plaintiff’s age at the time of the incident is irrelevant, as plaintiff was not on the monkey
bars at the time of the accident, and was using the equipment as she had been told to use it her
entire tenure at Chapin, and continued to do so during this Chapin school event for which Chapin
was responsible for not only ensuring the equipment was safe for Chapin’s special use during
recess and school hours, but also that it investigated the safety and warned students regarding the
safety of the equipment, and limitations of its uses if any. As Chapin utterly failed in its duty,
plaintiff submits that Chapin’s motion must be denied, and its separate motion granted.
DISCUSSION
The proponent of a motion for summary judgment must tender sufficient evidence to show
the absence of any material issue of fact and the right to entitlement to judgment as a matter of law
(Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York University Medical
Center, 64 NY2d 851 [1985]). Summary judgment is a drastic remedy that deprives a litigant of
his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled
to all favorable inferences that can be drawn from the evidence submitted and the papers will be
160384/2019 MOISE, CHANELLE A vs. CITY OF NEW YORK Page 4 of 6
Motion No. 003
4 of 6
[* 4]
FILED: NEW YORK COUNTY CLERK 02/22/2024 12:48 PM INDEX NO. 160384/2019
NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 02/22/2024
scrutinized carefully in a light most favorable to non-moving party (Assaf v. Ropog Cab Corp.,
153 AD2d 520 [1st Dept 1989]). Summary judgment will only be granted if there are no material,
triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Once
movant has met his initial burden on a motion for summary judgment, the burden shifts to the
opponent who must then produce sufficient evidence to establish the existence of a triable issue of
fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). It is well settled that issue finding, not
issue determination, is the key to summary judgment (Rose v. Da Ecib USA, 259 AD2d 258 [1st
Dept 1999]). When the existence of an issue of fact is even fairly debatable, summary judgment
should be denied (Stone v. Goodson, 8 NY2d 8, 12 [1960]). However, to defeat a motion for
summary judgment, the non-moving party must establish the existence of triable issues of fact that
are, “real, not feigned since a sham or frivolous issue will not preclude summary relief” (Kornfeld
v. NRX Technologies, Inc. 93 AD2d 772 [1st Dept 1983]).
It is well established that schools, having assumed physical custody and control over their
students, are under a duty to adequately supervise the students in their charge, as would a parent
of ordinary prudence in comparable circumstances (Ohman v. Board of Education of the City of
New York, 300 NY 306, 309 [1949]). Schools will be held liable for foreseeable injuries
proximately related to the absence of adequate supervision. However, schools are not insurers of
safety, for they cannot reasonably be expected to continuously supervise and control all movements
and activities of students. Consequently, schools are not to be held liable, “for every thoughtless
or careless act by which one pupil may injure another” (Mirand v City of New York, 84 NY2d 44,
49 [1994]).
As relevant here, plaintiff alleges that Chapin negligently supervised plaintiff. “Schools are
under a duty to adequately supervise the students in their charge and they will be held liable for
foreseeable injuries proximately related to the absence of adequate supervision” (Mirand, 84 NY2d
44, supra; Powers v. Greenville Cent. Sch. Dist., 169 AD3d 1324, 1324–1325 [3d Dept. 2019];
accord Wilson v. Vestal Cent. School Dist., 34 AD3d 999, 1000 [3d Dept. 2006]; see also Lewis-
Moore v. Cloverleaf Tower Housing Development Fund Corp., 26 AD3d 292 [1st Dept 2006]; see
Candela v. New York City School Const. Auth., 97 AD3d 507, 511 [1st Dept 2012]). Furthermore,
a school that is aware of a student's particular activities that make him or her more susceptible to
injury is required to exercise care commensurate with such activities (see Lewis v. Board of Educ.
of Lansingburgh Cent. Sch. Dist., 137 AD3d 1521, 1522 [3d Dept 2016]). Whether a school
breached its duty of care or whether such breach proximately caused the alleged injuries generally
presents a factual question for resolution by the trier of fact (see Powers, 169 AD3d at 1325, supra;
LaValley v. Northeastern Clinton Cent. Sch. Dist., 130 AD3d 1276, 1277 [3d Dept 2015]; Valenti
v. Young Men's Christian Assn. of Capital Dist., 70 AD3d 1089, 1089 [3d Dept 2010]).
Here, based on the record evidence, Chapin has failed to set forth a prima facie showing.
Among other things, the court finds that the affidavit submitted by Chapin is insufficient as a
matter of law, and does not categorically rule out Chapin’s supervisory responsibilities to plaintiff.
Parker’s affidavit selectively attests to emails suggesting that plaintiff and other students learned
only of the sole survivors’ photo through Facebook without challenging numerous assertions
within the record, including those by plaintiff herself, suggesting that the sole survivors’ photo was
a school tradition. Factual discrepancies such as this are not appropriately resolved on summary
judgment. Rather, such factual discrepancies are best left to the province of a jury. Notably, even
160384/2019 MOISE, CHANELLE A vs. CITY OF NEW YORK Page 5 of 6
Motion No. 003
5 of 6
[* 5]
FILED: NEW YORK COUNTY CLERK 02/22/2024 12:48 PM INDEX NO. 160384/2019
NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 02/22/2024
if Chapin had made a prima facie showing, there are ample issues of fact here warranting the denial
of its motion. To be sure, Chapin used the park, including the monkey bar equipment, for all its
students daily and brought plaintiff herself, multiple times per week, to the park to use the
equipment during recess. Based upon this, plaintiff relied on Chapin’s representation that the
equipment was safe for her and other students to use. Yet Chapin never inquired into the safety of
the equipment or ever inspected the equipment it expected all its students to use during recess
daily. Thus, Chapin failed in its duty to provide equipment that was fit and safe to use during its
school recess or outings such as the yearbook outing sponsored by Chapin. Moreover, Chapin
cannot credibly argue that the yearbook event was not sponsored by Chapin as Chapin’s own Head
of School, Michael Mallory, acknowledged that the sole survivor event at Carl Schurz Park was
an annual school event where the seniors would wear Chapin’s lower school uniforms to
commemorate being at the school since infancy. The court also credits the aforementioned
arguments proffered by defendant CITY OF NEW YORK as evidence that requisite issues of fact
exist to warrant the denial of Chapin’s motion.
Similarly, granting judgment in favor of plaintiff is unjustified, as plaintiff herself has not
successfully established a prima facie case regarding the matter of liability. The complexities
presented by the current motion are most appropriately addressed and deliberated upon at trial,
where a jury can thoroughly examine and adjudicate the pertinent issues.
Accordingly, it is hereby
ORDERED that Chapin’s motion for summary judgment is denied in its entirety; and it is
further
ORDERED that plaintiff’s cross-motion for partial summary judgment is denied in its
entirety.
This constitutes the decision and order of the court.
2/22/2024
DATE HASA A. KINGO, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
160384/2019 MOISE, CHANELLE A vs. CITY OF NEW YORK Page 6 of 6
Motion No. 003
6 of 6
[* 6]