| Buchholz v Patchogue-Medford School Dist. |
| 2011 NY Slip Op 07392 [88 AD3d 843] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Robert Christopher Buchholz,Appellant, v Patchogue-Medford School District, Respondent, et al.,Defendants. |
—[*1] Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Diane K. Farrell, David S. Pallai, andNicholas M. Bruno of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Mayer, J.), dated August 24, 2010, which granted themotion of the defendant Patchogue-Medford School District for summary judgment dismissingthe complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendant Patchogue-Medford School District which was forsummary judgment dismissing so much of the complaint as alleged negligent supervision bysecurity personnel and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed, without costs or disbursements.
On June 15, 2005, the last day of the school year, the plaintiff student allegedly sustainedinjuries when he was assaulted in a school hallway by two fellow students, the defendants DavidHo and Joel Correra. The plaintiff thereafter commenced this action against the defendantsPatchogue-Medford School District (hereinafter the School District), Ho, and Correra, alleging,among other things, negligent supervision by the School District.
Following joinder of issue and discovery, the School District moved for summary judgmentdismissing the complaint insofar as asserted against it, alleging that it had no actual orconstructive notice that Ho and Correra would assault the plaintiff, and that the assault occurredin so short a span of time that any alleged negligence on its part could not have been theproximate cause of the plaintiff's alleged injuries.
Schools have a duty to provide supervision to ensure the safety of those students in theircharge and are liable for foreseeable injuries proximately caused by the absence of adequatesupervision (see Brandy B. v Eden Cent.School Dist., 15 NY3d 297, 302 [2010]; Mirand v City of New York, 84 NY2d44, 49 [1994]; Hernandez v Christopher Robin Academy, 276 AD2d 592 [2000];Brown v Board [*2]of Educ. of Glen Cove Pub. Schools,267 AD2d 267 [1999]). "In determining whether the duty to provide adequate supervision hasbeen breached in the context of injuries caused by the acts of fellow students, it must beestablished that school authorities had sufficiently specific knowledge or notice of the dangerousconduct which caused injury; that is, that the third-party acts could reasonably have beenanticipated" (Mirand v City of New York, 84 NY2d at 49; see Velez v Freeport UnionFree School Dist., 292 AD2d 595 [2002]; O'Neal v Archdioceses of N. Y., 286AD2d 757 [2001]; Hernandez v Christopher Robin Academy, 276 AD2d 592 [2000]).Injuries caused by the impulsive, unanticipated act of a fellow student ordinarily will not giverise to negligence on the part of the School District absent proof of prior conduct that would haveput a reasonable person on notice to protect against the injury-causing act (see Mirand v Cityof New York, 84 NY2d at 49; Velez v Freeport Union Free School Dist., 292 AD2d595 [2002]; Janukajtis v Fallon, 284 AD2d 428, 429-430 [2001]).
Here, the School District submitted evidence showing that the plaintiff and the twoassailants, Ho and Correra, had never previously been involved in a violent altercation with eachother, and that none of the disciplinary infractions previously committed by Ho and Correrainvolved violent behavior. Such evidence established, prima facie, that the School District had noactual or constructive knowledge of dangerous conduct by Ho and Correra, and that it could nothave reasonably foreseen the attack on the plaintiff (see Morman v Ossining Union FreeSchool Dist., 297 AD2d 788 [2002]; Velez v Freeport Union Free School Dist., 292AD2d 595 [2002]; Janukajtis v Fallon, 284 AD2d at 430; Brown v Board of Educ. ofGlen Cove Pub. Schools, 267 AD2d 267 [1999]; Kennedy v Seaford Union Free SchoolDist. No. 6, 250 AD2d 574 [1998]). In opposition, the plaintiff failed to raise a triable issueof fact on the issue of actual or constructive notice. Accordingly, the Supreme Court properlygranted that branch of the School District's motion which was for summary judgment dismissingso much of the complaint as alleged negligence based upon notice of Ho and Correra's allegedprior violent behavior.
The School District, however, failed to establish its entitlement to judgment as a matter oflaw on so much of the complaint as alleged negligent supervision by security personnel. Insupport of the motion, the School District submitted, inter alia, transcripts of the depositiontestimony of the plaintiff and a security guard employed by the School District who witnessed theassault. Notably, at his deposition, the plaintiff testified that the assault happened over the courseof "a few minutes," and during that entire time, a security guard watched from only a few feetaway, but did not intervene until the assault had ended. At his deposition, the security guardagreed with the plaintiff that he was standing only a few feet away when the assault occurred, butin contrast, testified that the assault occurred over the course of mere seconds, while the hallwaywas crowded with high school students, and that he intervened "immediately." Viewing theevidence in a light most favorable to the nonmoving plaintiff, the deposition testimony of theplaintiff did not eliminate all triable issues of fact as to whether the security guard who witnessedthe assault was presented with a potentially dangerous situation and failed to take "energeticsteps to intervene" in time to prevent some of the injuries allegedly sustained by the plaintiff(Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 305 [1965]; see Johnson v Ken-Ton Union Free SchoolDist., 48 AD3d 1276, 1278 [2008]; McLeod v City of New York, 32 AD3d 907, 908 [2006]; Siller v Mahopac Cent. School Dist.,18 AD3d 532, 533 [2005]; Shoemaker v Whitney Point Cent. School Dist., 299AD2d 719, 720 [2002]; cf. O'Neal v Archdioceses of N. Y., 286 AD2d 757 [2001];Janukajtis v Fallon, 284 AD2d at 430). Since the School District failed to meet its primafacie burden, we need not consider the sufficiency of the papers submitted by the plaintiff inopposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court should have denied that branch of the School District'smotion which was for summary judgment dismissing so much of the complaint as allegednegligent supervision by security personnel.
The plaintiff's remaining contention is without merit. Dillon, J.P., Belen, Roman and Miller,JJ., concur.