Iwelda Perez, Individually and as Mother and Natural Guardian of Kidanny Colon, an Infant, Appellant, v. Board of Education of the City of New York, Respondent, et al., Defendant

Iwelda Perez, Individually and as Mother and Natural Guardian of Kidanny Colon, an Infant, Appellant, v Board of Education of the City of New York, Respondent, et al., Defendant. [737 NYS2d 599] [MAJORITY] —Order,. Supreme Court, Bronx County (Stanley Green, J.), entered September 27, 2001, which, insofar as appealed from, granted defendant-respondent’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. The infant plaintiff, a second grader, was standing near the cubbies in his classroom where students stored their personal belongings and supplies when he was accidentally poked in the eye with a sharpened pencil by another student as she attempted to detach a removable eraser from the pencil. The action was properly dismissed for plaintiff’s failure to rebut defendant school board’s prima facie showing that no accidents like this had ever happened before (see, Ohman v Board of Educ., 300 NY 306, 310). To hold defendant responsible for this accident would be to require it to continuously supervise virtually all of the movements and activities of its students, making it, in effect, an insurer of its students’ safety (id. at 309; see, Mirand v City of New York, 84 NY2d 44, 49; cf., e.g., Malik v Greater Johnstown Enlarged School Dist., 248 AD2d 774; Ascher v Scarsdale School Dist., 267 AD2d 339). Concur— Nardelli, J.P., Tom, Andrias, Rubin and Buckley, JJ.