Koulajian v. Smith

[499] Contrary to plaintiffs contention, there is no evidence in the record to support her theory that either of defendants was pulling the suitcase that plaintiff tripped over. Although defendants assert that the child was in control of the suitcase, plaintiff insists that the child was not. Accordingly, she could not prove a claim for negligent supervision, as such a cause of action is dependent on an allegation that a child improvidently used or operated a dangerous instrument (see Rios v Smith, 95 NY2d 647, 652-653 [2001]). In light of this, the dissent’s argument concerning whether the suitcase was a dangerous instrument is wholly academic. We have considered plaintiffs remaining contentions and find them unavailing. Concur — Mazzarelli, Catterson and BeGrasse, JJ.