| Ambroise v City of New York |
| 2007 NY Slip Op 07806 [44 AD3d 805] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Marie Ambroise et al., Respondents, v City of New York etal., Appellants. |
—[*1] Peters Berger Koshel & Goldberg, P.C., Brooklyn, N.Y. (Marc A. Novick of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Solomon, J.), dated May 10, 2006, which deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
At a hearing pursuant to General Municipal Law § 50-h, the transcript of which thedefendants submitted in support of their motion for summary judgment, the infant plaintiffHassan Ambroise (hereinafter the plaintiff) testified that three days prior to the subjectoccurrence, Shaquan, another student at the junior high school which they both attended, enteredthe plaintiff's classroom, challenged him to a fight, and threw the plaintiff's hat, which wasresting on his desk, to the floor. The teacher proceeded to eject Shaquan from the classroom. Onthe following day, Shaquan came to the plaintiff's homeroom door and again challenged theplaintiff to a fight. The teacher merely instructed the students in the room not to pay attention toShaquan. On the day of the occurrence, while the plaintiff was present in the basementlunchroom during lunch period, Shaquan started staring at the plaintiff aggressively. Fearing thatShaquan was about to strike him, the plaintiff tried to advise the teachers in the lunchroom whatwas happening, but they were busy at that time and told him they could not do anything. Shortlythereafter, Shaquan approached the plaintiff and did, in fact, push him. One of the counselorswho was present in the lunchroom observed the contact, separated [*2]the boys, and directed them to use different stairways to leave thebasement. When the plaintiff returned to the area of the second floor outside of his classroom, hewas approached by Shaquan and three of his friends. The plaintiff swung at Shaquan and missed.Shaquan responded by punching the plaintiff in the mouth, breaking a tooth.
"[L]iability for injuries resulting from a fight between two students cannot be predicated onnegligent supervision if the plaintiff was a voluntary participant in the fight" (McLeod v City of New York, 32 AD3d907, 909 [2006] [internal quotation marks and citations omitted]). The plaintiff's hearingtestimony raised a triable issue of fact as to whether he was a voluntary participant in the fightwith his assailant, or was acting in self-defense (id.). Since the defendants failed to makea prima facie showing of entitlement to judgment as a matter of law, their motion for summaryjudgment was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Miller, J.P., Goldstein, Skelos and Balkin, JJ., concur.