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Matthew Kessler Obtains Summary Judgment on Behalf of Day Care Center

January 4, 2019

Matthew Kessler represented a day care center at which a four year old student pushed another student down a slide, resulting in the minor plaintiff sustaining a fractured arm and requiring internal fixation surgery.  Plaintiff alleged the daycare center was negligent by allowing a bullying situation to develop and remain, ultimately resulting in the injuries to their client.  Over the course of the year and a half discovery period, Kessler was able to establish his client acted appropriately with regard to procedure, protocol and care for their students at all times relevant.  The defense’s childcare expert examined all the evidence in the case and found the daycare center to have acted appropriately.  The plaintiff’s expert agreed with the defense expert, opining that proper care was observed at all times.

At the eleventh hour, plaintiff attempted to steer the case in a different direction, arguing, after the conclusion of discovery, the cause of the plaintiff’s injuries was not improper care and supervision leading to bullying, rather it was that the playground surface area was defective.  Plaintiff made these allegations without an engineer expert.  On the papers, Mr. Kessler's team presented the argument that plaintiff was outside the time frame for amending the complaint.  At oral argument, Kessler cited case law establishing appropriate scenarios for allowing an amendment to a Complaint, arguing that in this matter, in which hundreds of days of discovery had passed, experts had been retained and provided their opinions and discovery had concluded to allow a late amendment would be prejudicial to the defense.  Judge Ciccone agreed the Complaint could not be amended and, as the evidence established the defendant did not violate any standard of care as pled in the Complaint, she dismissed the case with prejudice.

 


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