| Braunstein v Half Hollow Hills Cent. Sch. Dist. |
| 2013 NY Slip Op 02039 [104 AD3d 893] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Kalli S. Braunstein et al., Respondents, v HalfHollow Hills Central School District, Appellant, et al.,Defendants. |
—[*1] Feldman, Kramer & Monaco, P.C., Hauppauge, N.Y. (Thomas Torto and JasonLevine of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Half HollowHills Central School District appeals, as limited by its brief, from so much of an order ofthe Supreme Court, Suffolk County (LaSalle, J.), dated March 26, 2012, as denied itsmotion for summary judgment dismissing the complaint insofar as asserted against it andgranted that branch of the plaintiffs' cross motion which was for summary judgment onthe issue of its liability.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the plaintiffs' cross motion which was for summary judgment onthe issue of the liability of the defendant Half Hollow Hills Central School District, andsubstituting therefor a provision denying that branch of the cross motion; as so modified,the order is affirmed insofar as appealed from, without costs or disbursements.
On December 9, 2008, the infant plaintiff allegedly sustained injuries when she wasassaulted in a school auditorium by a fellow high school student, the defendant LatifahJordan. The infant plaintiff, and her father suing derivatively, commenced this actionagainst Half Hollow Hills Central School District (hereinafter the School District), andJordan and her mother, alleging, among other things, negligent supervision by the SchoolDistrict.
The School District moved for summary judgment dismissing the complaint insofaras asserted against it, arguing, inter alia, that it had no actual or constructive notice thatJordan would assault the infant plaintiff, and that it did not owe a special duty to protecther. Subsequently, the plaintiffs cross-moved, among other things, for summaryjudgment on the issue of the School District's liability. The Supreme Court granted thatbranch of the plaintiffs' cross motion and denied the School District's motion.
Initially, the Supreme Court properly considered that branch of the plaintiffs' crossmotion which was for summary judgment on the issue of the School District's liability.While it is undisputed that the cross motion was untimely (see Brill v City of New York,2 NY3d 648 [2004]), an [*2]untimely cross motionfor summary judgment may be considered by the court where, as here, a timely motionfor summary judgment was made on nearly identical grounds (see Alexander v Gordon, 95AD3d 1245, 1247 [2012]; McCallister v 200 Park, L.P., 92 AD3d 927, 928 [2012];Lennard v Khan, 69 AD3d812, 814 [2010]). Nevertheless, the subject branch of the plaintiffs' cross motionshould have been denied.
"Schools are under a duty to adequately supervise the students in their charge andthey will be held liable for foreseeable injuries proximately related to the absence ofadequate supervision" (Mirand v City of New York, 84 NY2d 44, 49 [1994]; see Stephenson v City of NewYork, 19 NY3d 1031, 1033 [2012]; Khosrova v Hampton Bays Union Free Sch. Dist., 99 AD3d669, 670 [2012]; Jake F. vPlainview-Old Bethpage Cent. School Dist., 94 AD3d 804, 805 [2012]). "Indetermining whether the duty to provide adequate supervision has been breached in thecontext of injuries caused by the acts of fellow students, it must be established thatschool authorities had sufficiently specific knowledge or notice of the dangerous conductwhich caused injury; that is, that the third-party acts could reasonably have beenanticipated" (Mirand v City of New York, 84 NY2d at 49; see Jake F. vPlainview-Old Bethpage Cent. School Dist., 94 AD3d at 805; Buchholz v Patchogue-MedfordSchool Dist., 88 AD3d 843, 844 [2011]).
There are triable issues of fact as to whether the School District acted reasonably inresponse to a threat allegedly made by Jordan against the infant plaintiff. "The adequacyof a school's supervision of its students is generally a question left to the trier of fact toresolve, as is the question of whether inadequate supervision was the proximate cause ofthe plaintiff's injury" (Wilson vVestal Cent. School Dist., 34 AD3d 999, 1000 [2006]). Further, the submissionsrevealed a triable issue of fact as to whether the infant plaintiff voluntarily participated inthe physical altercation so as to warrant the denial of that branch of the plaintiffs' crossmotion which was for summary judgment on the issue of the School District's liability(see Ambroise v City of NewYork, 44 AD3d 805, 806 [2007]; McLeod v City of New York, 32 AD3d 907, 909 [2006]).
The School District's remaining contentions are without merit.
Accordingly, the School District's motion for summary judgment dismissing thecomplaint insofar as asserted against it was properly denied. However, that branch of theplaintiffs' cross motion which was for summary judgment on the issue of the SchoolDistrict's liability also should have been denied. Skelos, J.P., Leventhal, Austin andSgroi, JJ., concur.