| Mathis v Board of Educ. of City of N.Y. |
| 2015 NY Slip Op 02459 [126 AD3d 951] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| Darryl Lareek Mathis, an Infant, by His Mother andNatural Guardian, Robin Kearse, et al., Appellants, v Board of Education of Cityof New York et al., Respondents. |
The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and Meir Katz ofcounsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Fay Ng of counsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffsappeal from an order of the Supreme Court, Kings County (Ash, J.), entered September25, 2013, which granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against the defendant Board of Education ofthe City of New York, and substituting therefor a provision denying that branch of thedefendants' motion; as so modified, the order is affirmed, with costs to the plaintiffs.
On March 8, 2000, the infant plaintiff Darryl Lareek Mathis (hereinafter the infantplaintiff) allegedly sustained injuries in a classroom located in P.S. 284 in Brooklyn,when a fellow student allegedly placed him in front of a fourth floor window, opened thewindow, and held him partially out of the window. The infant plaintiff, and his mothersuing derivatively, commenced this action against the defendants, Board of Education ofthe City of New York (hereinafter the Board of Education) and the City of New York,alleging, among other things, negligent supervision, negligent hiring, and negligentmaintenance of the school property. The defendants moved for summary judgmentdismissing the complaint, arguing that the Board of Education did not have notice ofprior similar conduct by the offending student and that the City was not a proper party.The Supreme Court granted the motion.
"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]). "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 Whitfield v [*2]Board of Educ. of City of Mount Vernon, 14 AD3d552, 553 [2005]). Actual or constructive notice to the school of prior similar conductgenerally is required, and "an injury caused by the impulsive, unanticipated act of afellow student ordinarily will not give rise to a finding of negligence" (Mirand v Cityof New York, 84 NY2d at 49; see Whitfield v Board of Educ. of City of MountVernon, 14 AD3d at 553). A plaintiff also must establish that the alleged breach ofthe duty to provide adequate supervision was a proximate cause of the injuries sustained(see Mirand v City of New York, 84 NY2d at 50; Whitfield v Board of Educ.of City of Mount Vernon, 14 AD3d at 553).
Here, in support of their motion for summary judgment, the defendants failed toestablish, prima facie, that the Board of Education lacked sufficiently specific knowledgeor notice of the dangerous conduct that caused the injury (see Smith v Poughkeepsie CitySchool Dist., 41 AD3d 579, 581 [2007]; Hernandez v City of New York, 24 AD3d 723 [2005]). Thedefendants' motion papers reflect the existence of triable issues of fact as to whether theBoard of Education had knowledge of the offending student's dangerous propensitiesarising from his involvement in other altercations with classmates in the recent past(see Smith v Poughkeepsie City School Dist., 41 AD3d at 581; Wood v Watervliet City SchoolDist., 30 AD3d 663 [2006]; Speight v City of New York, 309 AD2d 501[2003]). Thus, the defendants failed to demonstrate their prima facie entitlement tojudgment as a matter of law dismissing the cause of action sounding in negligentsupervision insofar as asserted against the Board of Education. Furthermore, thedefendants failed to demonstrate their prima facie entitlement to judgment as a matter oflaw dismissing the remaining causes of action insofar as asserted against the Board ofEducation. Accordingly, the Supreme Court should have denied that branch of thedefendants' motion which was for summary judgment dismissing the complaint insofar asasserted against the Board of Education, regardless of the sufficiency of the plaintiffs'papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851 [1985]).
However, the defendants established, prima facie, that the City is entitled tojudgment as a matter of law dismissing the complaint insofar as asserted against it bysubmitting evidence that this action involved an incident that occurred on public schoolpremises, and that the City does not operate, maintain, or control the school (see Cohen v City of New York,119 AD3d 725 [2014]; Miner v City of New York, 78 AD3d 669, 670 [2010]),which falls under "the exclusive care, custody, and control of the . . . Boardof Education, an entity separate and distinct from the City" (Cohen v City of NewYork, 119 AD3d at 725 [internal quotation marks omitted]; see McClain v City of NewYork, 65 AD3d 1020 [2009]; Bleiberg v City of New York, 43 AD3d 969, 971 [2007];Education Law § 2590-b [1] [a]). In opposition, the plaintiffs failed to raisea triable issue of fact as to the City's liability. Accordingly, the Supreme Court properlygranted that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against the City. Balkin, J.P., Hall, Millerand Duffy, JJ., concur.