Opinion
No. 31265/09.
2012-06-13
Arkadivsz PRYSAK, an Infant by his Mother and Natural Guardian, Danuta PRYSAK and Danuta Prysak, Individually, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and the City of New York, Defendant.
Michael A. Cardozo, Corporation Counsel, by Magdalena Perlman, Esq., Assistant Corporation Counsel, Jamaica, Attorney for Defendant. Bader, Yakaitis, Nonnenmacher, LLP, Robert E. Burke, Esq., New York, Attorney for Plaintiff.
Michael A. Cardozo, Corporation Counsel, by Magdalena Perlman, Esq., Assistant Corporation Counsel, Jamaica, Attorney for Defendant. Bader, Yakaitis, Nonnenmacher, LLP, Robert E. Burke, Esq., New York, Attorney for Plaintiff.
PHYLLIS ORLIKOFF FLUG, J.
The following papers numbered 1 to 4 read on this motion
Notice of Motion 1–2
Affirmation in Opposition 3
Reply Affirmation 4
Defendants, the City of New York (hereinafter “City”) and the New York City Department of Education (hereinafter DOE) move for summary judgment, dismissing plaintiff's complaint as asserted against them.
This is an action to recover damages for personal injuries allegedly sustained by infant plaintiff Arkadivsz Prysak on March 27, 2009 as a result of being punched by another student in the gymnasium of J.H.S. 210, located at 93–11 101st Avenue, in the County of Queens, City and State of New York.
On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case” (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 [1985] ). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ).
With respect to the City, it is well established that the City and the DOE are separate legal entities and the City cannot be held liable for the torts committed by the DOE and its employees ( See Allende v. City of New York, 69 AD3d 931, 932 [2d Dept.2010]; Perez v. City of New York, 41 AD3d 378, 379 [1st Dept.2007] ). Accordingly, that portion of the motion seeking summary judgment for the City is granted, without opposition, and the Complaint is dismissed as asserted against the City.
“The provision of security against physical attacks by third parties is a governmental function and no liability arises from the performance of such a function absent a special duty of protection” (Jerideau v. Huntington Union Free Sch. Dist., 21 AD3d 992, 992–93 [2d Dept.2005] [internal citations omitted] ). As plaintiff admits that there was no special duty of protection, any claims alleging inadequate security must be dismissed ( See P.T. v. Children's Vill., 16 AD3d 645, 646 [2d Dept.2005] )
However, plaintiffs are not required to plead or allege a special duty for their claims of negligent supervision ( See, e.g., Miccio v. Bay Shore Union Free Sch. Dist., 289 A.D.2d 542, 543 [2d Dept.2001] ). It is well settled that “[s]chools have a duty to provide supervision to ensure the safety of students in their charge, and they will be held liable for the foreseeable injuries proximately caused by the absence of adequate supervision” (McLeod v. City of New York, 32 AD3d 907, 908 [2d Dept.2010]; see also Oldham v. Eastport Union Free School Dist., 26 AD3d 480 [2d Dept.2006] ).
As an initial matter, the DOE has likewise failed to establish its entitlement to judgment on the ground that plaintiff was the initial aggressor in the altercation or a voluntary participant in the fight. The witness statements purporting to demonstrate that plaintiff was the initial aggressor are unsworn ( see Moore v. 3 Phase Equestrian Ctr., Inc., 83 AD3d 677, 679 [2d Dept.2011] ) and Mr. Innocente testified at his deposition that plaintiff did not strike his alleged assailant. In addition, plaintiff's testimony that he was wrestling for the basketball before being hit does not establish that he was a voluntary participant in the fight. There is a difference between “horseplay” and “fighting” and it is for the jury to determine whether plaintiff's actions fall into the former or latter category ( See Benedek v. Richland Manor Assoc., LLC, 21 Misc.3d 1135A [Sup.Ct. Kings County 2008]; see also Matter of Luis L., 58 AD3d 543, 544 [1st Dept.2009] ).
The DOE also contends that the act of a third party hitting the plaintiff was too sudden and spontaneous to give rise to liability. In support of this contention, the DOE offers the testimony of Frank Innocente, the instructor supervising the students at the time of the occurrence, that the altercation lasted “seconds.” However, it is unclear whether that estimate includes the time the boys were “wrestling” for the basketball, prior to the plaintiff being hit and Mr. Innocente also testified that he couldn't remember the specifics of the occurrence. Under the circumstances, and resolving all inferences in favor of the nonmoving party, defendant's submissions are insufficient to establish their entitlement to judgement on this ground ( See, e.g., Martinez v. Khaimov, 74 AD3d 1031, 1033–34 [2d Dept.2010] ).
Moreover, even an unanticipated act by a fellow student may give rise to liability if the school had notice of prior similar conduct ( See Janukajtis v. Fallon, 284 A.D.2d 428, 429–30 [2d Dept.2001] ).
The DOE established prima facie that it did not have notice of plaintiff's assailant prior conduct by submitting its response to plaintiff's discovery requests that no disciplinary records could be located for the assailant and that the assailant was never suspended or cited for violent behavior prior to the incident ( See Buchholz v. Patchogue–Medford School Dist., 88 AD3d 843, 844 [2d Dept.2011] ). In opposition, plaintiff has raised a triable issue of fact by submitting his deposition testimony that his assailant had previously thrown a basketball at his face and that the occurrence was witnessed by Mr. Innocente, the same instructor supervising the students at the time of the incident ( See Mcleod, supra, at 908).
Finally with respect to the DOE's claim that it was not negligent in its supervision of plaintiff, it should be noted that the question of whether the school's level of supervision was reasonable generally presents questions of fact to be resolved by a jury ( See Vonungern v. Morris Cent. Sch., 240 A.D.2d 926 [3d Dept.1997] ). Here, given Mr. Innocente's testimony that he was trying to monitor five different games at the time of the incident, there are questions of fact regarding whether it was reasonable for the school to provide one supervisor for the entire class ( See Gomez v. Floral Park–Bellrose Union Free School Dist., 83 AD3d 778, 779 [2d Dept.2011] ). In addition, there are triable issues of fact regarding whether Mr. Innocente should have taken steps to intervene prior to plaintiff being hit ( See Luciano v. Our Lady of Sorrows School, 79 AD3d 705 [2d Dept.2010]; Mcleod, supra, at 908).
Accordingly, defendant's motion for summary judgment is denied, in its entirety.