Murawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542;
2004 NY Slip Op 51045U
[***1] Nina Murawski, individually and as parent and Natural Guardian
of Adam Murawski, an Infant, Plaintiffs, v. Camp Nageela, Camp Shevtai
Yisroel, Jewish Education Program (JEP) of Long Island, rabbi shenker,
rabbi glustein, jeffrey y. Arshravan and Eric Arshravan, an infant, Defendants.
01-2959
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004
NY Slip Op 51045U
June 10, 2004, Decided
NOTICE: [**1] THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN
THE PRINTED OFFICIAL REPORTS.
DISPOSITION: Defendants motion for summary judgment granted; complaint dismissed.
CORE TERMS: infant, supervision, summary judgment, camper, bunkhouse, altercation, personnel,
notice, finger, nurse, summer camp, anticipated, fellow, failure to provide, medical care, medical
report, counselor, residual, dropped, sworn, mitt
HEADNOTES
[*1025A] Negligence--Duty.
COUNSEL: MALLILO & GROSSMAN, ESQS., Attorneys for Plaintiffs, Flushing, NY.
MOLOD, SPITZ & DeSANTIS, PC, Attorneys for Defendants Camp Nageela, JEP, Rabbi Shenker
and Rabbi Glustein, New York, NY.
JUDGES: Denise F. Molia, J.
OPINION BY: Denise F. Molia
OPINION
Denise F. Molia, J.
ORDERED that this motion by defendants Camp Nageela, Jewish Education Program of Long Island,
Rabbi Shenker and Rabbi Glustein for summary judgment dismissing the complaint against them is
granted.
This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff,
Adam Murawski, then ten years old, when on August 11, 2000, he was assaulted by a fellow camper,
defendant Eric Arshravan, in the bunkhouse they shared at defendant Camp Nageela, [**2] a sleep
away summer camp operated by defendant Jewish Education Program of Long Island [JEP]. Defendant Rabbi Shenker is the director of JEP and defendant Rabbi Glustein is another employee of
JEP. A derivative cause of action is asserted on behalf of infant plaintiff's mother, plaintiff Nina
Murawski.
Plaintiffs seek recovery from the camp defendants on two grounds - improper supervision and a
failure to provide proper medical care after the assault. The camp defendants now move for summary
judgment dismissing the complaint on the basis that the infant plaintiff's injuries were the result of a
spontaneous altercation that could not have been anticipated by camp officials. Defendants also
contend that there was no adverse affect upon the infant plaintiff as a result of any delay in obtaining
medical treatment for him. In support, defendants submit, inter alia, copies of the pleadings, a copy of
the transcript of the testimony given by the infant plaintiff at his examination before trial, the personal
affidavit of defendant Rabbi Shenker, and the sworn medical report of defendants' examining physician, Dr. Leon Sultan.
At his examination before trial the infant plaintiff Adam [**3] Murawski testified to the effect that
he shared a bunkhouse with four or five other boys at the camp, including the infant defendant Eric
Arshravan, and a counselor. Adam also testified that Eric was somewhat smaller than him and that the
two generally did not "get along well". Adam stated that he and Eric had once had a previous argument during a kick ball game but that the disagreement did not go beyond Eric's yelling at him. Adam
testified that he that he could not remember whether he had complained about Eric to any of the camp
counselors during the two week period prior to the subject incident and that the boys had not engaged
in any physical altercations during that time period. Adam further testified that the incident occurred
when the two boys were alone in the bunkhouse, that he had gone into the bunkhouse in order to get
his baseball mitt and that Eric came in after him. While Adam was looking for his mitt he dropped
something and then picked up something of Eric's because he thought the item he dropped might be
underneath or near it. Eric then told Adam to "put it down" and he did so. Adam further testified that
the two boys had agreed to share a table and that he thought [**4] Eric became angry because he
believed that Adam [***2] had moved one of Eric's belongings. Shortly thereafter, Eric hit Adam
with a hockey stick.
By his personal affidavit, defendant Rabbi Shenker states that at no time prior to the subject incident
were the camp personnel advised that Adam had complained of any problems with the infant defendant and that the camp had no written reports of any incidents involving the boys from Adam's
bunkhouse other than the nurse's report of the subject incident. As for the plaintiffs' claim that the
camp failed to provide proper medical attention for the infant plaintiff, Rabbi Shenker states that
Adam was seen by the camp nurse after the incident and she determined that the Adam's finger should
be placed in a splint and that he should be followed, that the camp nurse twice followed up with Adam
the next day and was told by Adam that his finger was feeling better. Rabbi Shenker further states that
plaintiff Nina Murawski came to the camp two days after the incident to visit Adam and she took him
off the camp grounds for several hours. When she brought Adam back to camp, she asked the camp
personnel to arrange for an x-ray of Adam's finger which was later [**5] taken at the emergency
room at the local hospital.
The standard of care for persons having children entrusted to their care in a summer camp setting is
that of a reasonably prudent parent. In such a setting, constant supervision is neither feasible nor
desirable because one of the benefits of such an institution is to inculcate self-reliance in the campers
which an overly protective supervision would destroy (Gustin v Association of Camps Farthest Out,
Inc., 267 A.D.2d 1001, 700 N.Y.S.2d 327 [1999]). Camps, like schools are not insurers of safety for
they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers (Lesser v Camp Wildwood, 282 F. Supp. 2d 139 [2003]). In order to establish a
breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had
sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that
the third-party acts could have reasonably been anticipated (see, Mirand v City of New York, 84
N.Y.2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994].
Here, viewing the record in a light [**6] most favorable to the plaintiffs (see, J. Rosen Furs, Inc. v
Sigma Plumbing & Heating Corp., 249 A.D.2d 276, 670 N.Y.S.2d 596 [1998]), there is no factual
basis to conclude either that the camp's agents had knowledge constituting notice of a particular
danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff's
injuries was anything other than a sudden, unanticipated independent act by a fellow camper (see,
Mirand v City of New York, supra; Foster v New Berlin Central School Dist., 246 A.D.2d 880, 667
N.Y.S.2d 994 [1998]; Schlecker v Connetquot Central School Dist. of Islip, supra). There is also no
evidence that the camp's agents had any actual or constructive notice that the infant defendant was
engaged in a prohibited activity or that they had a reasonable opportunity to prevent its continuance
prior to the subject altercation (see, Mirand v City of New York, supra; Totan v Bd. of Educ., 133
A.D.2d 366, 519 N.Y.S.2d 374 [1978] app den 70 N.Y.2d 614, 524 N.Y.S.2d 432, 519 N.E.2d 343).
The infant plaintiff, [**7] by his own admission, concedes that he notified none of the camp's
personnel concerning his fears of an impeding confrontation with the infant [***3] defendant.
Therefore, even assuming, arguendo, that an issue of fact exists regarding the adequacy of the supervision, the need for additional supervision of the infant defendant prior to the incident could not
have been apprehended (see, Nocilla v Middle Country School District, 302 A.D.2d 573, 757
N.Y.S.2d 300 [2003]; Foster v New Berlin Central School Dist., supra; McGregor v City of New
York, 197 A.D.2d 609, 602 N.Y.S.2d 669 [1993] app den 84 N.Y.2d 802, 617 N.Y.S.2d 136, 641
N.E.2d 157; Schlecker v Connetquot Central School Dist. of Islip, supra).
In opposition, plaintiffs rely upon counsel's affidavit and the purported affidavit of another camper.
Counsel's affidavit is without probative value as counsel professes no first hand knowledge of the fact
and circumstances relating to plaintiffs' claims (see, Siagkris v K & E Mechanical, Inc., 248 A.D.2d
458, 669 N.Y.S.2d 375 [1998]). The affidavit by the non party infant witness [**8] is also inadmissible as it has not been signed by him. 1 Plaintiff has thus failed to meet the burden of producing
proof in admissible form sufficient to require a trial of material questions of fact (Papadopoulos
Gardner's Village, 198 A.D.2d 216, 604 N.Y.S.2d 570 [1984]). The moving defendants are therefore
granted summary judgment dismissing plaintiffs' improper supervision claims.
1 Nor has the Court has considered the affidavit of another non party infant witness attached to
the defendants' Reply papers as that affidavit is not signed by the affiant.
The moving defendants are also entitled to summary judgment with respect to plaintiffs' remaining
claim the gravamen of which is that defendants' failure to provide the infant plaintiff with prompt
medical care for his injuries has resulted in residual injuries. Dr. Leon Sultan, by his sworn medical
report, affirms that he is a board-certified orthopedic surgeon who examined Adam Murawski for the
defendants. Dr. Sultan opines [**9] that Adam's left hand is unremarkable in that he is orthopedically stable and neurologically intact, and that the 5th metacarpal fracture is healed without any residual functional impairment. Plaintiffs having come forward with no medical proof to sustain their
enhanced injury claim, defendants are entitled to summary judgment.
Accordingly, the motion by defendants Camp Nageela, Jewish Education Program of Long Island,
Rabbi Shenker and Rabbi Glustein for summary judgment is granted and the complaint is dismissed
as to these defendants. The Court's computerized records reflect that the action was previously discontinued as to defendants Arshravan by stipulation filed with the County Clerk on August 28, 2001.
In addition, plaintiffs' failure to move for a default within one year after service of the complaint
warrants a dismissal of the complaint as against the sole remaining defendant, Camp Shevtai Yisroel
(CPLR 3215[c]). The complaint is therefore dismissed in its entirety.
[***4] X FINAL DISPOSITION NON-FINAL DISPOSITION