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During a midday recess, “AM” – described as an “infant” -- was running in a playground area when another kindergartner suddenly jumped off a pole that was part of some “playground apparatus” and landed on top of AM.

When a suit was later filed to recover damages for the injuries AM sustained, the New York City Department of Education (DOE) sought to have the case thrown out and, after that request was denied by the New York County Supreme Court, an appeal to the Appellate Division, First Department, followed.

On its review of the record, the AD1 was of the view there were unresolved “issues of fact” which precluded the grant of relief in DOE’s favor. Among other things, DOE failed to show that the “school provided adequate supervision of the students, or that a lack of adequate supervision was not a proximate cause of [AM’s] injuries.”

While a paraprofessional was present, the record was muddy as to whether she was attending to a special education student or all the children that were present in the fenced-in area. In addition, the appellate court noted that the paraprofessional’s recitation of what transpired conflicted with the account provided by the injured child. Since it was thus unclear whether there had been “adequate supervision” of the youngsters, the denial of DOE’s dismissal request was left to stand.

"That will bring us back to DOE, oh, oh, oh ...."

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A.M. v New York City Dept. of Educ.