| Pistolese v William Floyd Union Free Dist. |
| 2010 NY Slip Op 00493 [69 AD3d 825] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Anthony Pistolese et al., Respondents, v William FloydUnion Free District, Appellant. |
—[*1] Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (MichaelVilleck of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Suffolk County (Tanenbaum, J.), dated July 27, 2009, which denied,without prejudice to renewal upon completion of discovery, its pre-answer motion, denominatedas one pursuant to CPLR 3211 (a) (7) and (c), for summary judgment dismissing the complaint,but which was treated by the Supreme Court as one solely pursuant to CPLR 3211 (a) (7).
Ordered that the order is reversed, on the law, with costs, the defendant's motion is treated asone for summary judgment dismissing the complaint pursuant to CPLR 3211 (c), and the motionis granted.
In late June 2008, on the last day of the school year, the infant plaintiff allegedly wasassaulted by other youths, as he walked home from school with friends rather than ride a schoolbus. The incident allegedly occurred along Montauk Highway, some 30 minutes after the infantplaintiff left the school grounds. Although this was a pre-answer motion, under the facts of thiscase, the Supreme Court should have treated it as one for summary judgment pursuant to CPLR3211 (c) since the defendant not only requested such treatment, but both the defendant and theplaintiffs deliberately charted a summary judgment course (see Mihlovan v Grozavu, 72NY2d 506, 508 [1988]; see generallyMcNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545 [2006]).
While schools are under a duty to adequately supervise the students in their charge, they arenot insurers of the safety of their students (see Vernali v Harrison Cent. School Dist., 51 AD3d 782, 783[2008]; Maldonado v Tuckahoe UnionFree School Dist., 30 AD3d 567, 568 [2006]; Chalen v Glen Cove School Dist., 29 AD3d 508, 509 [2006]). "[A]school's duty is coextensive with, and concomitant with, its physical custody and control over achild" (Stagg v City of New York,39 AD3d 533, 534 [2007]) and its "custodial duty ceases once the student has passed out ofits orbit of authority and the parent is perfectly free to reassume control over the child'sprotection" (Vernali v Harrison Cent. School Dist., 51 AD3d at 783; see Pratt vRobinson, 39 NY2d 554, 560 [1976]).[*2]
Here, the incident occurred at a time when the injuredplaintiff was no longer in the defendant's custody or under its control and was, thus, outside ofthe orbit of its authority. Accordingly, the defendant demonstrated its prima facie entitlement tojudgment as a matter of law (seeFotiadis v City of New York, 49 AD3d 499 [2008]; Stagg v City of New York, 39 AD3d 533, 534 [2007]; Morning v Riverhead Cent. SchoolDist., 27 AD3d 435, 436 [2006]; Ramo v Serrano, 301 AD2d 640, 641 [2003]).
In opposition, the plaintiffs failed to raise a triable issue of fact. They also failed to articulateany nonspeculative basis to believe that discovery might yield evidence warranting a differentresult (see Stagg v City of New York, 39 AD3d at 534). Dillon, J.P., Florio, Hall andSgroi, JJ., concur.