| Jake F. v Plainview-Old Bethpage Cent. School Dist. |
| 2012 NY Slip Op 02627 [94 AD3d 804] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Jake F. et al., Respondents, v Plainview-Old BethpageCentral School District, Appellant, et al., Defendant. |
—[*1] Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the defendant Plainview-OldBethpage Central School District appeals from an order of the Supreme Court, Nassau County(Brown, J.), entered February 1, 2011, which denied its motion for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the appellant's motion forsummary judgment dismissing the complaint insofar as asserted against it is granted.
On October 15, 2008, the infant plaintiff, a high school student, was dismissed after eighthperiod and was on school grounds during ninth period when a fellow student allegedly assaultedhim, causing serious injuries. The infant plaintiff, by his father, and his father, suing individually,commenced this action alleging, inter alia, that the defendant Plainview-Old Bethpage CentralSchool District (hereinafter the defendant) breached a duty to provide adequate supervision,proximately causing the infant plaintiff's injuries. The defendant moved for summary judgmentdismissing the complaint insofar as asserted against it contending, inter alia, that it did not breacha duty to provide adequate supervision because the acts of the fellow student could notreasonably have been anticipated. In the order appealed from, the Supreme Court denied themotion. We reverse.
"Schools are under a duty to adequately supervise the students in their charge and they willbe held liable for foreseeable injuries proximately related to the absence of adequate supervision"(Mirand v City of New York, 84 NY2d 44, 49 [1994]). "In determining whether the dutyto provide adequate supervision has been breached in the context of injuries caused by the acts offellow students, it must be established that school authorities had sufficiently specific knowledgeor notice of the dangerous conduct which caused injury; that is, that the third-party acts couldreasonably have been anticipated" (id. at 49; see Buchholz v Patchogue-MedfordSchool Dist., 88 [*2]AD3d 843, 844 [2011]).
Here, the defendant established, prima facie, that the assault was an unforeseeable act that,without sufficiently specific knowledge or notice, could not reasonably have been anticipated bythe defendant (see Brandy B. v EdenCent. School Dist., 15 NY3d 297, 302 [2010]). The defendant submitted evidence thatthe infant plaintiff and the assailant had no previous interaction, and that the assailant'sdisciplinary record contained several instances of nonviolent, disruptive behavior and a single,remote incident of fighting two years and nine months prior to the instant assault. With thisevidence, the defendant sustained its burden of establishing that it had no actual or constructivenotice of prior conduct similar to the instant assault (see Buchholz v Patchogue-MedfordSchool Dist., 88 AD3d at 844-845; Morman v Ossining Union Free School Dist.,297 AD2d 788, 789 [2002]; Velez v Freeport Union Free School Dist., 292 AD2d 595,596 [2002]; Janukajtis v Fallon, 284 AD2d 428, 430 [2001]). In opposition, the plaintiffsfailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Accordingly, the Supreme Court should have granted the defendant's motion forsummary judgment dismissing the complaint insofar as asserted against it. Rivera, J.P., Dillon,Angiolillo and Leventhal, JJ., concur.