| Doe v Department of Educ. of City of N.Y. |
| 2008 NY Slip Op 06586 [54 AD3d 352] |
| August 12, 2008 |
| Appellate Division, Second Department |
| Jane Doe et al., Appellants, v Department of Education ofCity of New York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein andSharyn Rootenberg of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Queens County (Hart, J.), entered January 10, 2007, which,upon the granting of the defendants' motion pursuant to CPLR 4401 for judgment as a matter oflaw, made at the close of the plaintiffs' case, is in favor of the defendants and against them,dismissing the complaint.
Ordered that the judgment is reversed, on the law, the motion pursuant to CPLR 4401 isdenied, the complaint is reinstated, and the matter is remitted to the Supreme Court, QueensCounty, for a new trial before a different Justice, with costs to abide the event.
The plaintiff Jane Doe, along with her father, suing derivatively, commenced this actionagainst the defendants Department of Education of the City of New York (hereinafter DOE) andthe City of New York seeking to recover damages for injuries she allegedly sustained onDecember 2, 2002, when she was sexually assaulted by a fellow student in a stairwell of BaysideHigh School (hereinafter the school).
While not insurers of the safety of students, schools are "under a duty to adequately supervisethe students in their charge and they will be held liable for foreseeable injuries proximatelyrelated to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d44, 49 [1994]). In [*2]general, a school's duty is to supervise itsstudents with the same degree of care as a parent of ordinary prudence would exercise incomparable circumstances (see Mirand v City of New York, 84 NY2d at 49; Lawes vBoard of Educ. of City of N.Y., 16 NY2d 302, 305 [1965]; Smith v Poughkeepsie City School Dist.,41 AD3d 579, 580 [2007]; Shante D. v City of New York, 190 AD2d 356, 361[1993], affd 83 NY2d 948 [1994]; Logan v City of New York, 148 AD2d 167,168 [1989]). To establish a breach of the duty to provide adequate supervision in a case involvinginjuries caused by the acts of fellow students, a plaintiff must show that school authorities "hadsufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is,that the third-party acts could reasonably have been anticipated" (Mirand v City of New York,84 NY2d 44, 49 [1994]; McLeod vCity of New York, 32 AD3d 907, 908 [2006]; Wood v Watervliet City School Dist., 30 AD3d 663 [2006];Brown v Board of Educ. of Glen Cove Pub. Schools, 267 AD2d 267, 268 [1999]).
The Supreme Court improvidently exercised its discretion in precluding evidence that wasrelevant to the plaintiffs' negligent supervision cause of action. Generally, evidence is relevantand admissible "if it has any tendency in reason to prove the existence of any material fact, i.e., itmakes determination of the action more probable or less probable than it would be without theevidence" (Ochoa v Jacobsen Div. ofTextron, Inc., 16 AD3d 393, 394 [2005], quoting American Motorists Ins. Co. vSchindler El. Corp., 291 AD2d 467, 468-469 [2002]). Here, certain evidence sought to beadmitted by the plaintiffs, which consisted of the alleged student attacker's prior school records,as well as records of prior assaults by students at the school, including a rape that was initiated ina stairwell, was probative with respect to the issue of whether the alleged attack on the plaintiffwas foreseeable. Moreover, evidence, inter alia, that a DOE school aide assigned to patrol thethird-floor hallway and an abutting stairwell where the attack allegedly took place never patrolledthat stairwell, and that a School Safety Agent who was absent on the day in question was notreplaced, was probative with respect to whether the defendants breached their duty to provideadequate supervision.
The Supreme Court also erred in precluding the testimony of the plaintiffs' expert witnesses,since the proffered testimony went to matters beyond the ken of the ordinary juror and wouldhave aided the jury in determining whether the attack on the plaintiff was foreseeable andwhether the defendants breached their duty to provide adequate supervision.
"To be entitled to judgment as a matter of law pursuant to CPLR 4401, the defendant has theburden of showing that, upon viewing the evidence in the light most favorable to the plaintiff, theplaintiff has not made out a prima facie case" (Nichols v Stamer, 49 AD3d 832, 833 [2008]; Godlewska v Niznikiewicz, 8 AD3d430, 431 [2004]; Farrukh v Board of Educ. of City of N.Y., 227 AD2d 440, 441[1996]). The defendants here failed to meet their burden. Taking into account the evidenceimproperly precluded by the Supreme Court, the plaintiffs' evidence was sufficient to make out aprima facie case of negligent supervision. Accordingly, the Supreme Court erred in granting thedefendants' motion pursuant to CPLR 4401 for judgment as a matter of law.
The Supreme Court improvidently exercised its discretion in, among other things,unnecessarily and repeatedly questioning the plaintiffs' witnesses in a manner designed to elicitresponses commensurate with the Supreme Court's apparent evaluation of the plaintiffs' case asdeficient (see O'Brien v Barretta, 1AD3d 330, 331 [2003]; Mantuano v Mehale, 258 AD2d 566, 567 [1999];Gerichten v Ruiz, 80 AD2d 578 [1981]). In view of the bias in favor of the defendantsexhibited by the Supreme Court, a new trial before a different Justice is required.[*3]
In light of our determination, we do not reach theplaintiffs' remaining contentions. Mastro, J.P., Spolzino, Balkin and Leventhal, JJ., concur.