         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
383
CA 10-02185
PRESENT: CENTRA, J.P., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


ANTHONY COMMISSO AND VIKKI COMMISSO,
INDIVIDUALLY AND AS PARENTS AND NATURAL
GUARDIANS OF ZACHARY COMMISSO, AN INFANT
UNDER THE AGE OF FOURTEEN YEARS,
PLAINTIFFS-RESPONDENTS,                          MEMORANDUM AND ORDER

                    V

LYNDA GREENLEAF AND GERALD GREENLEAF,
DEFENDANTS-APPELLANTS.


HISCOCK & BARCLAY, LLP, SYRACUSE (MATTHEW J. SKIFF OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

PETER M. HOBAICA LLC, UTICA (GEORGE E. CURTIS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Anthony
F. Shaheen, J.), entered March 15, 2010 in a personal injury action.
The order denied the motion of defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs, individually and on behalf of their son,
commenced this action to recover damages for injuries he sustained
when he fell from his bicycle while he was under the supervision of
defendants, at daycare. According to plaintiffs, defendants failed to
provide adequate supervision for their son, who was then seven years
old and was being badgered by another child who also was on a bicycle.
We conclude that Supreme Court properly denied defendants’ motion for
summary judgment dismissing the complaint. “A person to whom the
custody and care of a child is entrusted by a parent ‘is obliged to
provide adequate supervision and may be held liable for foreseeable
injuries proximately resulting from the negligent failure to do so’ ”
(Brennan v Sinski, 31 AD3d 1108, 1109; see Singh v Persaud, 269 AD2d
381; see generally Mirand v City of New York, 84 NY2d 44, 50-51).
Here, defendants failed to meet their initial burden on the motion
inasmuch as their own submissions in support thereof raise issues of
fact whether the accident was foreseeable and whether they provided
adequate supervision (see Oliverio v Lawrence Pub. Schools, 23 AD3d
633, 634-635; Douglas v John Hus Moravian Church of Brooklyn, Inc., 8
AD3d 327, 328). Defendants’ failure to meet their initial burden
“requires denial of the motion, regardless of the sufficiency of the
                                 -2-                           383
                                                         CA 10-02185

opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,
853).




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
