| MacCormack v Hudson City School Dist. Bd. of Educ. |
| 2008 NY Slip Op 04032 [51 AD3d 1121] |
| May 1, 2008 |
| Appellate Division, Third Department |
| Karen MacCormack, Individually and as Parent and Guardian ofBryan MacCormack, an Infant, Respondent, v Hudson City School District Board of Education etal., Appellants, and BJ Cantele et al., Individually and as Parents of James Cantele, an Infant,Respondents. |
—[*1] Jade H. Platania, Rhinebeck, for Karen MacCormack, respondent. Pennock, Breedlove & Noll, L.L.P., Clifton Park (John H. Pennock Jr. of counsel), for BJCantele and another, respondents.
Malone Jr., J. Appeal from an order of the Supreme Court (Hummel, J.), entered August 2,2007 in Columbia County which, among other things, denied the motion of defendants HudsonCity School District Board of Education and Hudson City School District for summary judgmentdismissing the complaint against them.[*2]
On May 12, 2004, Bryan MacCormack and JamesCantele were freshmen at Hudson High School in Columbia County. During the precedingweeks, they had a minor altercation in the cafeteria and Cantele allegedly threatenedMacCormack with physical violence. On the date in question, the two had a verbal exchangewhile they were ascending the stairs which culminated in Cantele striking MacCormack in theface and causing him to lose two teeth. Plaintiff, MacCormack's mother, subsequentlycommenced this negligence action against various parties, including defendants Hudson CitySchool District Board of Education and Hudson City School District (hereafter collectivelyreferred to as defendants). Following joinder of issue, Supreme Court, among other things,denied defendants' motion for summary judgment dismissing the complaint against them.Defendants now appeal.
Initially, it is well settled that although schools are not insurers of safety, they "are under aduty to adequately supervise the students in their charge and they will be held liable forforeseeable injuries proximately related to the absence of adequate supervision" (Mirand vCity of New York, 84 NY2d 44, 49 [1994]). In evaluating whether there has been a breach ofthe duty of adequate supervision in the context of injuries caused by the intentional acts of fellowstudents, "it must be established that school authorities had sufficiently specific knowledge ornotice of the dangerous conduct which caused injury; that is, that the third-party acts couldreasonably have been anticipated" (id. [citation omitted]; see Wilson v Vestal Cent. School Dist.,34 AD3d 999, 1000 [2006]; Druba v East Greenbush Cent. School Dist., 289 AD2d767, 768 [2001]). That, however, is not the end of the inquiry, as it must further be demonstratedthat the negligent supervision was the proximate cause of the injuries (see Van Leuvan v Rondout Val. Cent.School Dist., 20 AD3d 645, 646 [2005]; Velez v Freeport Union Free SchoolDist., 292 AD2d 595, 596 [2002]). "The test to be applied is whether under all thecircumstances the chain of events that followed the negligent act or omission was a normal orforeseeable consequence of the situation created by the school's negligence" (Mirand v Cityof New York, 84 NY2d at 50 [citations omitted]).
In support of their motion for summary judgment, defendants submitted the depositiontestimony of school administrators establishing that they were unaware of any serious problemsbetween MacCormack and Cantele and did not experience any significant disciplinary problemswith Cantele prior to the incident in the stairwell. They submitted further proof that MacCormackneither reported Cantele's alleged threats to school officials nor expressed to them a concern forhis safety (compare Wilson v Vestal Cent. School Dist., 34 AD3d at 1000; Druba vEast Greenbush Cent. School Dist., 289 AD2d at 768). Although MacCormack told theschool principal about an incident in the cafeteria a few weeks before, he described it as anargument over a bet while he and Cantele were sitting together at a lunch table during which thetwo exchanged slaps until school officials intervened. Based on the foregoing, we find thatdefendants could not have reasonably anticipated that Cantele's behavior would escalate to thepoint of inflicting physical injury on MacCormack and knocking out his teeth (see Busby vTiconderoga Cent. School Dist., 258 AD2d 762, 764 [1999], lv denied 93 NY2d 814[1999]). Although plaintiff relies upon Cantele's school disciplinary record to establishdefendants' knowledge of his violent propensities, much of it was compiled prior to his entry intohigh school and involved incidents of horseplay and disruptive behavior much different in naturefrom the conduct at issue. Consequently, we do not find that it was sufficient to place defendantson notice of the situation that later erupted (see Velez v Freeport Union Free SchoolDist., 292 AD2d at 596; Malik v Greater Johnstown Enlarged School Dist., 248AD2d 774, 776 [1998]).
In any event, even if we were to find that defendants had the requisite notice, the [*3]element of proximate cause is lacking as Cantele's act of strikingMacCormack was so sudden and spontaneous that no amount of supervision would haveprevented it (see Van Leuvan v Rondout Val. Cent. School Dist., 20 AD3d at 646;Malik v Greater Johnstown Enlarged School Dist., 248 AD2d at 776; Foster v NewBerlin Cent. School Dist., 246 AD2d 880, 881 [1998]). Indeed, the incident occurred after abrief exchange of words while MacCormack and Cantele were walking up the stairs and lastedonly 20 to 30 seconds. MacCormack stated that he had no idea Cantele was going to strike him.Likewise, an adult social worker who witnessed the incident while walking behind the studentsindicated that, just prior to the blow, MacCormack and Cantele appeared to be fooling around.Accordingly, inasmuch as there are no questions of fact concerning the elements necessary toestablish negligent supervision, defendants' motion for summary judgment should have beengranted.
Cardona, P.J., Carpinello, Rose and Stein, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied the motion of defendants HudsonCity School District Board of Education and Hudson City School District; motion granted,summary judgment awarded to said defendants and complaint dismissed against them; and, as somodified, affirmed.