Opinion
07-17061.
Decided June 16, 2011.
WALTER L. BECK, ESQ., Attorney for Plaintiff, Patchogue, New York.
CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS FISHLINGER, Attorney for Defendant William Floyd, Uniondale, New York.
LOCCISANO LARKIN, ESQ., Attorney for Defendants Feudi., Hauppauge, New York.
Upon the following papers numbered 1 to 25 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers ( 001 1-17; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 18-19; 20-21; Replying Affidavits and supporting papers 22-23; 24-25; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that motion (001) by the defendant William Floyd Union Free School District for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff's complaint and all cross claims asserted against it is denied.
This is an action for damages personally and derivatively arising out of an incident which occurred on March 30, 2006 at the William Floyd High School located at 240 Mastic Beach Road, Mastic Beach, New York, when the plaintiff, Robert J. Logan, claims he was verbally and physically assaulted and battered by another student, defendant Andrew J. Feudi. It is claimed, inter alia, that the defendant William Floyd Union Free School District was negligent in hiring, training and supervising its staff and employees and failed to provide the plaintiff with a reasonably safe environment.
The defendant William Floyd Union Free School District (William Floyd) seeks summary judgment dismissing the complaint and all cross claims asserted against it on the bases that it had no notice of any prior acts or violent propensity of the defendant, that it received no complaints about the defendant, that there was no history of animosity or fighting between the plaintiff and the co-defendant Andrew J. Feudi. William Floyd denies the allegations that it failed to properly supervise its students, that there was no lack of supervision by its staff, and that the incident was a rapidly escalating, sudden and spontaneous altercation between the parties.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented ( Sillman v Twentieth Century-Fox Film Corporation , 3 NY2d 395, 165 NYS2d 498). The movant has the initial burden of proving entitlement to summary judgment ( Winegrad v N.Y.U. Medical Center , 64 NY2d 851, 487 NYS2d 316). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v N.Y.U. Medical Center , supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form . . . and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595). The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form ( Joseph P. Day Realty Corp. v Aeroxon Prods. , 148 AD2d 499, 538 NYS2d 843 [2nd Dept 1979]) and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( Castro v Liberty Bus Co. , 79 AD2d 1014, 435 NYS2d 340 [2nd Dept 1981]). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law ( Friends of Animals v Associated Fur Mfrs. , 46 NY2d 1065, 416 NYS2d 790).
In support of the instant application, the moving defendant has submitted, inter alia, an attorney's affirmation; copies of the summons and complaint, defendants' answers, and plaintiffs' bill of particulars; various photographs and unauthenticated notes and school records; signed transcripts of the 50-h hearings of Robert J. Logan, Jacklyn Logan and Robert R. Logan, all dated December 14, 2006; the signed transcript of the examination before trial of Viveca Nargi on behalf of defendant William Floyd dated January 26, 2009; and the unsigned transcripts of the depositions of Robert J. Logan dated January 26, 2009, Robert R. Logan and Jacklyn Logan dated November 20, 2006, John DeBenedetto on behalf of defendant William Floyd dated January 26, 2010, Andrew J. Feudi dated February 9, 2009, and Rosemarie Feudi and Nicholas Feudi dated February 9, 2009.
It is noted that the unsigned copies of the aforementioned deposition transcripts are not in admissible form as required by CPLR 3212 ( see, Martinez v 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901, 850 NYS2d 201 [2nd Dept 2008]; McDonald v Maus , 38 AD3d 727, 832 NYS2d 291 [2nd Dept 2007]; Pina v Flik Intl. Corp. , 25 AD3d 772, 808 NYS2d 752 [2nd Dept 2006]), nor are they accompanied by an affidavit pursuant to CPLR 3116, and, therefore, are not considered on this motion.
Viveca Nargi testified to the effect that she was employed by the William Floyd School District as an English teacher on March 30, 2006 and was assigned to third period cafeteria duty for 11th grade students. The third period cafeteria commenced just after 9:00 a.m., ended at approximately 9:48 a.m., and was located on the ground floor. Ms. Nargi's cafeteria duties, which were provided to her in writing, included supervising the students and ensuring that they do what they were supposed to do, that is, either be seated or stand on a lunch line. She had a master list of the students permitted to be in the cafeteria, but that varied day to day and she was not required to take attendance or to stand by the door as students entered. She stated that she did not know either Robert Logan or Andrew Feudi by name and did not recall having seen either of them prior to the March 30, 2006 incident.
Ms. Nargi recalled that on the day of the incident, Robert Logan was seated at a table when the other student, Andrew Feudi, walked over to him and hit him about the face or head more than once. She stated she did not see or hear the prelude to the altercation, and, thus, did not know what precipitated it. After the incident, she went over to them and told Feudi not to hit Logan again. She estimated that there were about thirty students in the room, and she did not know if she was the only staff member in the cafeteria at the time. She stated that although there is generally security present either inside or outside the cafeteria, she did recall if any security personnel were in the cafeteria at the time of the incident. After the altercation, she went to the office of the assistant principal, John DeBenedetto, where she was instructed to submit a written report. She thereafter submitted a report indicating that Andrew Feudi, without provocation, struck Robert Logan, and adding the time, date and location of the incident. She learned after the fact that Andrew Feudi and Robert Logan were not supposed to be in the cafeteria.
The plaintiff student's father, Robert R. Logan testified at the 50-h hearing to the effect that he learned of the incident in a telephone call from the school nurse advising him that his son was in her office and that he had been hit in the face. He also spoke to Mr. Ezelius, an assistant principal, who advised him about his son. He stated that prior to this incident, he never made any complaints to anyone in the school district with respect to violence at William Floyd High School and that his son had never been assaulted at the high school. He testified that there were complaints made to the school concerning other incidents, but he did not know who made the complaints, to whom the complaints were made, or whom those incidents involved.
Jacklyn Logan, the student plaintiff's mother testified at the 50-h hearing to the effect that she learned of the incident involving her son from a message on her answering machine. She was advised by the school nurse to come to the school as soon as possible; however, she was upset because Mr. Ezelius permitted her son to drive himself home. She testified that when she saw her son, he was disoriented, his face was all swollen, black and blue, and he could not speak. She testified that several weeks after the incident she spoke with Joseph DeLuca, a security guard at the school, who advised that Andrew got physical with people at times, that he had been brought into the office on occasions for fighting and that he had been banned from the cafeteria for that reason.
Robert J. Logan testified at his 50-h hearing to the effect that he was involved in an incident on March 30, 2006 at the William Floyd High School where he was in 12th grade. When he went to attend his third period Calculus class, there was a substitute teacher so he left to go to the 11th grade cafeteria. He stated that because he had a full schedule of classes, he was unable to schedule a lunch period, and thus, was not assigned to a cafeteria. When he arrived at the cafeteria, Ms. Nargi, a teacher, was present, as were about fifty or sixty students. He went to his friend Chris' table, took a chair from an empty table, and sat down. He stated that after he had been sitting and talking with his friends for about ten minutes, he heard a voice from behind saying "You took my fucking chair." He did not recognize the person he later learned to be Andrew Feudi standing about ten feet away. He heard him say, "Bring back my fucking chair." He responded by saying, "There are plenty of other chairs. If you need the chair, I'll bring it back." He stated that Ms. Nargi looked up but remained seated.
Plaintiff Logan continued that Feudi then walked away and sat down, talked to his friends, but got up and walked over to him a second time, stood by his left shoulder and said loudly, "You're being very disrespectful right now and you better go bring back this fucking chair." Logan testified that he told Feudi again calmly that if he really "needed the chair that bad, I'd bring it back, but there are plenty of other chairs around." Feudi responded, "Put the fucking chair back . . ." Logan stated that he responded, "I'm not going to fight you over a chair." They were both standing at that time. Feudi then walked away. Logan turned towards his friends, and sat down to talk with them. About five seconds later, Feudi came up behind him and sucker-punched him in rapid succession three times, striking the right side of his face, the left temple area, and then the orbital area on the third punch.
The infant plaintiff testified that he and his two friends, Chris and Wade, stood up. Chris stood between him and Feudi and separated them. From the time Chris separated them, about ten seconds passed until a security guard came over, grabbed Feudi, and pulled him away. Another security guard came over and escorted Logan to the nurse's office. He did not see these security officers in the cafeteria when he walked in, and saw no other teachers, administrators or staff other than Ms. Nagi prior to the occurrence. He stated that at no time did Ms. Nagi come over to them. Prior to this incident, he learned that when Feudi was a freshman or sophomore, he beat another kid, was involved in other fights, beat someone with a weapon off of school property, and was banned from the cafeteria for verbally abusing one of the teachers in the school. He stated that he thought there were rules about who was permitted into the various cafeterias, but those rules were not strictly enforced and seniors would float into the junior cafeteria and the juniors would float into the senior cafeteria. He did not believe the rules were in writing, nor were there any signs designating the cafeteria as an 11th grade cafeteria. Prior to this incident, he stated that neither he, nor anyone he knew, complained to the school district about Andrew Feudi or about the supervision in the high school.
The school's standard of duty to a student is what a reasonable prudent parent would have done under the same circumstances (NY PJI 2:227). "The standard for determining whether a school was negligent in executing its supervisory responsibility is, [w]hether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision" ( Mirand v City of New York , 190 AD2d 282, 598 NYS2d 464, aff'd 84 NY2d 44, 614 NYS2d 372; see, In the Matter of the Claim of Jane Doe v Board of Education of Penfield School District, et al , 2006 NY Slip Op 51615U, 12 Misc 3d 1197A, 824 NYS2d 768 [Sup. Ct. of New York, Monroe County 2006]). In the action herein, William Floyd School District has failed to establish the number of students and the number of staff assigned and present in the cafeteria when the incident occurred, the required ratio of student to teacher/staff, and whether or not that requirement was met. Movant school district has not submitted school rules or state requirements to establish compliance therewith. Neither has movant school district established that it was not negligent in executing its supervisory responsibility at the time of the incident.
"Where injuries are caused by the intentional acts of fellow students, imposition of liability upon the school under a theory of negligent supervision is justified when a plaintiff can show, usually by virtue of the school's prior knowledge of notice of the dangerous conduct which caused the injury, that the acts of the fellow student could reasonably have been anticipated . . . On the other hand, school personnel cannot reasonably be expected to guard against . . . an injury caused by the impulsive, unanticipated act of a fellow student'" ( Shrader v Board of Education of the Taconic Hills Central School District , 249 AD2d 741, 671 NYS2d 785 [3rd Dept 1998], quoting Mirand v City of New York ). In the instant action, William Floyd School District has not established prima facie that it did not negligently supervise the cafeteria area or the students, that it had no knowledge of Feudi's dangerous conduct, or that they should have guarded against his impulsive acts. While it appears at first blush, based upon the testimony of Ms. Nagi, that this incident was a spontaneous act ( see, Ceglia v Portledge School , 187 AD2d 550, 590 NYS2d 228 [2nd Dept 1992]; Bird v Port Byron Central School District , 286 AD2d 938, 731 NYS2d 417 [4th Dept 2001]), it appears from the testimony of student Logan that the incident was preceded by shouting from Feudi and that Feudi walked over to Logan and confronted him several times before the alleged assault occurred. Thus, the movant school district has not demonstrated that this was a sudden and spontaneous act which could not have been stopped during its escalation. Neither has the school district established by admissible evidence that it was not aware of Andrew Feudi having a history or pattern of dangerous conduct or violence, or if it were aware of such a history of violent conduct, that it did not fail to take appropriate action to safeguard others and prevent the occurrence.
Moreover, the unrefuted testimony establishes that the plaintiff did not have permission to be in the cafeteria and that Feudi was barred from the cafeteria at the time the incident occurred. The school's submissions establish that no one from the school precluded either Logan or Feudi from entering into or remaining in the cafeteria prior to the occurrence. While the testimony of the student plaintiff established that Fuedi, who was shouting, approached him several times prior to the physical attack, no testimony was proffered to demonstrate what action was taken by Ms. Nargi to prevent the attack as the events continued to escalate. Ms. Nargi's testimony differs on this score with that of Robert J. Logan who stated that Ms. Nargi never approached him prior to the physical attack, although she did look up when there was shouting. Additionally, Ms. Nargi testified that she did not approach Feudi until after the physical attack and was unaware of the claimed shouting prior to the incident. Further, the school district did not establish the procedure or policy to be followed by the staff assigned to the cafeteria in determining which student were to be granted entry into the cafeteria.
In view of the foregoing, the defendant school district has not established its entitlement to summary judgment dismissing the complaint by submitting proof in admissible form sufficient to establish the lack of material issues of fact. The motion (001) is, therefore, denied.