Opinion
2013-03-27
Kalli S. BRAUNSTEIN, etc., et al., respondents, v. HALF HOLLOW HILLS CENTRAL SCHOOL DISTRICT, appellant, et al., defendants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant. Feldman, Kramer & Monaco, P.C., Hauppauge, N.Y. (Thomas Torto and Jason Levine of counsel), for respondents.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant. Feldman, Kramer & Monaco, P.C., Hauppauge, N.Y. (Thomas Torto and Jason Levine of counsel), for respondents.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, etc., the defendant Half Hollow Hills Central School District appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (LaSalle, J.), dated March 26, 2012, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it and granted that branch of the plaintiffs' cross motion which was for summary judgment on the issue of its liability.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiffs' cross motion which was for summary judgment on the issue of the liability of the defendant Half Hollow Hills Central School District, and substituting 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 was assaulted in a school auditorium by a fellow high school student, the defendant Latifah Jordan. The infant plaintiff, and her father suing derivatively, commenced this action against Half Hollow Hills Central School District (hereinafter the School District), and Jordan and her mother, alleging, among other things, negligent supervision by the School District.
The School District moved for summary judgment dismissing the complaint insofar as asserted against it, arguing, inter alia, that it had no actual or constructive notice that Jordan would assault the infant plaintiff, and that it did not owe a special duty to protect her. Subsequently, the plaintiffs cross-moved, among other things, for summary judgment on the issue of the School District's liability. The Supreme Court granted that branch of the plaintiffs' cross motion and denied the School District's motion.
Initially, the Supreme Court properly considered that branch of the plaintiffs' cross motion 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 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431), an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds ( see Alexander v. Gordon, 95 A.D.3d 1245, 1247, 945 N.Y.S.2d 397;McCallister v. 200 Park, L.P., 92 A.D.3d 927, 928, 939 N.Y.S.2d 538;Lennard v. Khan, 69 A.D.3d 812, 814, 893 N.Y.S.2d 572). Nevertheless, the subject branch of the plaintiffs' cross motion should have been denied.
“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” ( Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;see Stephenson v. City of New York, 19 N.Y.3d 1031, 1033, 954 N.Y.S.2d 782, 978 N.E.2d 1251;Khosrova v. Hampton Bays Union Free Sch. Dist., 99 A.D.3d 669, 670, 951 N.Y.S.2d 235;Jake F. v. Plainview–Old Bethpage Cent. School Dist., 94 A.D.3d 804, 805, 944 N.Y.S.2d 152). “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” ( Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;see Jake F. v. Plainview–Old Bethpage Cent. School Dist., 94 A.D.3d at 805, 944 N.Y.S.2d 152;Buchholz v. Patchogue–Medford School Dist., 88 A.D.3d 843, 844, 931 N.Y.S.2d 113).
There are triable issues of fact as to whether the School District acted reasonably in response to a threat allegedly made by Jordan against the infant plaintiff. “The adequacy of a school's supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff's injury” ( Wilson v. Vestal Cent. School Dist., 34 A.D.3d 999, 1000, 825 N.Y.S.2d 159). Further, the submissions revealed a triable issue of fact as to whether the infant plaintiff voluntarily participated in the physical altercation so as to warrant the denial of that branch of the plaintiffs' cross motion which was for summary judgment on the issue of the School District's liability ( see Ambroise v. City of New York, 44 A.D.3d 805, 806, 843 N.Y.S.2d 685;McLeod v. City of New York, 32 A.D.3d 907, 909, 822 N.Y.S.2d 562).
The School District's remaining contentions are without merit.
Accordingly, the School District's motion for summary judgmentdismissing the complaint insofar as asserted against it was properly denied. However, that branch of the plaintiffs' cross motion which was for summary judgment on the issue of the School District's liability also should have been denied.