| Paca v City of New York |
| 2008 NY Slip Op 04848 [51 AD3d 991] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Taylan Paca et al., Appellants, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and RonaldE. Sternberg of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Hurkin-Torres, J.), dated April 13, 2007, which deniedtheir motion, inter alia, to strike the defendants' answer and granted the defendants' cross motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On March 22, 2005 the plaintiff Taylan Paca (hereinafter the injured plaintiff) was injuredduring a gym class soccer match when another student playing the game kicked him in the ankle.The injured plaintiff, and his father suing derivatively, brought this action against the City ofNew York and the Board of Education of the City of New York to recover damages for injuriesallegedly caused as a result of negligent supervision. At his examination before trial, the injuredplaintiff testified that the kick was an "accident." During the deposition of the gym teacher whowas supervising the class, the defendant's attorney refused to allow him to answer questionsabout any prior complaints regarding the other player's behavior toward students other than theinjured plaintiff. Counsel asserted that such information was confidential under federal law andthat its disclosure could be obtained only with the consent of the student's parents or throughother proper procedure. The plaintiffs' attorney said that he would seek a ruling on the proprietyof the questions, but there is no indication in the record that he ever did. Nor is there anyindication that plaintiffs' counsel sought disclosure of that student's disciplinary records throughproper procedure.[*2]
Instead, the plaintiffs filed a note of issue, andsubsequently moved, inter alia, to strike the defendants' answer based on defense counsel'srefusal to allow the gym teacher to answer the questions about the other student. The defendantscross-moved for summary judgment dismissing the complaint. The Supreme Court denied theplaintiffs' motion and granted the defendants' cross motion. We affirm.
Schools have a duty to adequately supervise students in their charge and will be held liablefor foreseeable injuries proximately related to the absence of adequate supervision (seeMirand v City of New York, 84 NY2d 44, 49 [1994]; Ronan v School Dist. of City ofNew Rochelle, 35 AD3d 429, 430 [2006]). Nevertheless, schools are not insurers of theirstudents' safety "for they cannot reasonably be expected to continuously supervise and control allmovements and activities of students" (Mirand v City of New York, 84 NY2d at 49;see De Los Santos v New York City Dept. of Educ., 42 AD3d 422 [2007]). In the contextof injuries caused by fellow students, because a school cannot be held liable for "everythoughtless or careless act by which one pupil may injure another" (Lawes v Board of Educ.of City of N.Y., 16 NY2d 302, 306 [1965]), a plaintiff must establish that school authoritieshad "sufficiently specific knowledge or notice of the dangerous conduct which caused injury; thatis, that the third-party acts could reasonably have been anticipated" (Mirand v City of NewYork, 84 NY2d at 49; see Hernandez v Christopher Robin Academy, 276 AD2d 592[2000]). Thus, a school's actual or constructive knowledge that the offending student hadengaged in prior similar conduct is generally required (see Mirand v City of New York,84 NY2d at 49).
Here, the defendants established their prima facie entitlement to judgment as a matter of lawby demonstrating, through the injured plaintiff's own deposition testimony, that his injuries werecaused by the other student's accidental conduct in the course of the soccer game and, given theattendant circumstances, that the incident occurred in such a short span of time that it could nothave been prevented by the most intense supervision (see Ronan v School Dist. of City ofNew Rochelle, 35 AD3d at 430; Walker v Commack School Dist., 31 AD3d 752,753 [2006]; Mayer v Mahopac Cent. School Dist., 29 AD3d 653, 654 [2006];Hernandez v Board of Educ. of City of N.Y., 302 AD2d 493, 494 [2003]; Convey vCity of Rye School Dist., 271 AD2d 154, 160 [2000]). In opposition, the plaintiffs failed toraise a triable issue of fact.
The plaintiffs' contention that the Supreme Court improperly denied their motion, inter alia,to strike the defendants' answer is without merit (see CPLR 3126). Striking a defendant'sanswer is a drastic remedy that is "inappropriate absent a clear showing that the failure to complywith discovery demands was willful and contumacious" (Brandes v North Shore Univ. Hosp.,22 AD3d 778 [2005], quoting Jenkins v City of New York, 13 AD3d 342 [2004]).Here, there is no evidence that the defendants' refusal to answer questions about the otherstudent's alleged disciplinary record or prior behavior was willful or contumacious. Additionally,given the injured plaintiff's repeated characterization of the incident as an accident, the otherstudent's disciplinary records were of little or no relevance to the plaintiffs' claim of negligentsupervision.
The plaintiffs' remaining contentions are without merit. Fisher, J.P., Santucci, Balkin andBelen, JJ., concur.