Opinion
29739/08.
Decided on January 21, 2011.
Plaintiffs were represented by Thomas J. Solomon, Esq. of Lazarowitz Manganillo, L.L.P.
Defendants were represented by Alice Spitz, Esq. of Molod Spitz DeSantis, P.C.
On January 11, 2006, the infant plaintiff, Jacov K., then ten years old and a student at defendant Lubavitcher School Chabad, allegedly sustained serious injuries as a result of a fall down a stairway at the School. Plaintiffs' Verified Complaint sounds primarily in negligent supervision, although there are allegations, repeated in the Plaintiff's [ sic] Verified Bill of Particulars, that can be read as alleging that the stairway was unreasonably dangerous. With this motion, Defendants seek summary dismissal pursuant to CPLR 3212, attempting to address both the negligent supervision and premises liability claims.
In support, Defendants submit documents that are, at best, suspect as admissible evidence, namely: an Affirmation of Rabbi Moshe Reinetz, the teacher who had direct charge of the infant plaintiff at the time of his fall, but who is not shown to be among the persons who are permitted to submit affirmations pursuant to CPLR 2106; a transcript of an examination before trial of the infant plaintiff, taken when he was 13 years old, which is not signed by him or shown to have been submitted to him for review pursuant to CPLR 3116, and which does not reveal a determination of "swearability" ( see Carrasquillo v City of New York, 22 Misc 3d 71 [Sup Ct, Kings County 2008]; a transcript of an examination before trial of Moise Reinetz, which is not signed by him or shown to have been submitted to him for review pursuant to CPLR 3116, and which indicates he affirmed the truth of his testimony but did not swear to it; an Affidavit of Jeffrey J. Schwalje, P.E., which was executed and notarized out-of-state and is not shown to be admissible ( see CPLR 2309 [c]); and a letter and page from a hospital record that are not shown to be admissible as evidence on any basis.
Plaintiffs' opposition objects to Defendants' reliance on inadmissible material, but is specific only as to the Affirmation of Rabbi Moshe Reinetz, the letter, and the medical record. (Affirmation in Opposition, unnumbered pages.)
As to Plaintiffs' cause of action for negligent supervision, Defendants rely primarily on the Affirmation and unsworn deposition testimony of Rabbi Moshe Reinetz. Although the Court is aware that in some circumstances a person not described in CPLR 2106 may be permitted to affirm testimony and not swear to its truth, and the Court might speculate that such circumstances are present here, there is nothing in the Affirmation or transcript to support it.
"[A]ny person who, for religious or other reasons, wishes to use an affirmation as an alternative to a sworn statement may do so. However, to be effective such an affirmation must be made before a notary public or other authorized official. (CPLR 2309.) Otherwise, the affirmation would be or [ sic] no probative value because the affirmant would not be answerable for the crime of perjury should he make a false statement." ( Slavenberg Corp. v Opus Apparel, 53 NY2d 799, 800 n [1981]; see also United Talmudical Academy of Kiryas Joel v Khai Bais Halevi Religious Corp., 232 AD2d 547, 547-48 [2d Dept 1996].)
CPLR 2309, among other things, designates persons authorized to administer oaths and affirmations ( see CPLR 2309 [a]), and provides further, "An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs" (CPLR 2309 [b].) "There is no specific form of oath required in this State, other than that it be calculated to awaken the conscience and impress the mind of the person taking it in accordance with his or her religious or ethical beliefs." ( Furtow v Jestrow Enters., Inc. , 75 AD3d 494 , 494 [2d Dept 2010] [quoting Feinman v Mennan Oil Co., 248 AD2d 503, 504 (2d Dept 1998)].)
The Affirmation of Rabbi Reinetz was not made before a person authorized to administer oaths and affirmations, and for that reason alone would not be admissible. The assertions of the Affirmation were made "under penalties of perjury," but there is nothing in the Affirmation that shows that it was otherwise "calculated to awaken the conscience and impress the mind" of Rabbi Reinetz "in accordance with his . . . religious or ethical beliefs" ( see CPLR 2309 [b].)
The affirmed testimony at Rabbi Reinetz's deposition was taken before a person authorized to administer oaths and affirmations, but does not include an acceptance of the penalties of perjury for false statements. That testimony too is not accompanied by anything that otherwise shows an awakening of the conscience in accordance with Rabbi Reinetz's religious or ethical beliefs ( see CPLR 2309 [b].)
As a court sitting in Brooklyn, this Court is certainly aware of the sizeable Lubavitch communities and their relationships to the Chasidic movement within Orthodox Judaism. ( See generally Merkos L'Inyonei Church, Inc. v Sharf, 11 Misc 3d 1062[A], 2006 NY Slip Op 50365 [U], * 2-* 4 [Sup Ct, Kings County 2006].) The names chosen by Defendants, "United Lubavich, Inc." and "Lubavitcher School Chabad," suggest that they situate themselves among those communities. One might assume, moreover, that as a teacher at a Lubavitch school, Rabbi Reinetz shares religious and ethical beliefs shared by the Lubavitch communities. But the scope of judicial notice is at best limited in matters of religion. ( See Baxter v McDonnell, 155 NY 83, 93 [1898]; Matter of Ingham v Town of Dickinson, 192 AD2d 813, 814 [3d Dept 1993]; Baird v Grace Church of Millbrook, 197 AD 272, 274 [2d Dept 1921] ["The canons and customs of a religious denomination must be proved as matters of fact."].) Even more suspect would be the ascribing of particular religious or ethical beliefs to an individual because of association with a religious community or organization.
Where, as here, there is no basis in testimony, written or oral, that an affirmation of truth is made under the circumstances that satisfy the requirements of law, and admission of the testimony is objected to because it is not sworn, the testimony cannot be taken as evidence. Even where not specifically objected to, this Court would be hard-pressed to consider the deficiencies identified here to be "mere defect[s] in form" to be "disregarded" ( see Matter of MBNA Am. Bank NA v Stehly, 19 Misc 3d 12, 13-14 [App Term, 2d Dept 2008]; see also PRA III, LLC v Gonzalez , 54 AD3d 917 918 [2d Dept 2008].) At the least, the affirmation must be taken by a person authorized to administer oaths and affirmations, and be made "under the penalties of perjury." ( See CPLR 2106; Offman v Singh , 27 AD3d 284 , 284-85 [1st Dept 2006]; Tattegrain v New York City Tr. Auth., 2002 NY Slip Op 40296 [U], * 2 [App Term, 2d Dept 2002].)
In any event, even ignoring the evidentiary deficiencies, Defendants fail to carry their prima facie burden on this motion because, despite Defendants' assertion that "Plaintiff's deposition testimony was consistent with that given by his teacher" (Affirmation in Support at 7), there is not agreement on all material facts.
The accounts of Jacov and Rabbi Reinetz agree that Jacov was not with his class when he fell on the stairway, and that he was not under the supervision of any teacher or other personnel of the School. They agree that Rabbi Reinetz's permission was required for Jacov to leave the class, but there is no clear agreement that permission was not given. Rabbi Reinetz asserts that Jacov "snuck away from class without permission" (Affirmation at 2.) Jacov testified that on previous occasions he had received permission from Rabbi Reinetz to leave the class, but didn't "really know" whether he had obtained permission to leave the class before he fell.
The accounts also agree that Jacov's younger brother Leor, aged 8 and also a student at the School, was with Jacov when he fell. But whereas Jacov testified that two of his classmates were also with him when he fell, Rabbi Reinetz testified that, except for Leor, Jacov was alone. There is no evidence explaining Leor's presence at the stairway.
Given the factual disputes revealed by Defendants' submission, Defendants can succeed on this motion only if they can establish prima facie their entitlement to judgment on Plaintiffs' account of the injury-producing incident. In any event, since there is no dispute that Jacov's younger brother Leor was involved in, what Defendants characterize as, the "horse-play" that caused Jacov's injury (Affirmation in Support at 9, 16), Defendants cannot succeed on this motion without showing prima facie that there was no negligence in the supervision of Leor. Defendants do not even attempt such a showing.
The parties appear to agree on the general legal principles governing Plaintiffs' claim of negligent supervision. "While not insurers of the safety of students, 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'." ( Doe v Department of Educ. of City of New York , 54 AD3d 352, 353 [2d Dept 2008] [quoting Mirand v City of New York, 84 NY2d 44, 49 (1994)].) "In general, a school's duty is to supervise its students with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances." ( Id.) "Where an incident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the School defendants is warranted." ( Convey v City of Rye School Dist., 271 AD2d 154, 160 [2d Dept 2000]; see also Lowe v Meacham Child Care Learning Ctr. ,74 AD3d 1029, 1029 [2d Dept 2010].)
Defendants make no showing that supervision of the students in the hallways and on stairways during class times was adequate, or unnecessary, in light of reasonably foreseeable risk of injury. ( See Smith Poughkeepsie City School Dist., 41 AD3d 579, 580 [2d Dept 2007]; Shoemaker v Whitney Point Cent. School Dist., 299 AD2d 719, 720 [3d Dept 2002].) Although Defendants make much of the fact, assuming it was so, that Jacov had left class without Rabbi Reinetz's permission, they make no showing that adequacy of supervision of the hallways and stairways is affected in any substantial way by whether a student leaves class with or without permission. Indeed, there is no showing that Rabbi Reinetz would not have given Jacov permission had he asked, nor do Defendants point to any evidence to dispute Jacov's testimony that in the past he had received permission to leave class from Rabbi Reinetz. There is no evidence that Leor left class without permission, and no showing that, had Jacov and Leor been at the stairway with permission, anything would have been different.
There is no "horseplay" exemption from a school's duty to provide adequate supervision, as shown by authority cited by Defendants. ( See Janukajtis v Fallon, 284 AD2d 428 [2d Dept 2001]; Convey v City of Rye School Dist., 271 AD2d 154; Walsh v City School Dist. of Albany, 237 AD2d 811 [3d Dept 1997].) On the contrary, the absence of supervision encourages "horseplay." ( See Doe v Fulton School Dist. , 35 AD3d 1194 , 1194-95 [4th Dept 2006] ["reckless and aggressive horseplay" "consequence of the . . . failure to provide adequate supervision"]; Malik v Greater Johnstown Enlarged School Dist., 248 AD2d 774, 776 [3d Dept 1998] ["roughhousing or even fighting . . . are reasonably foreseeable and can be relatively easily controlled through adult supervision"]; Alferoff v Casagrande, 122 AD2d 183, 184 [2d Dept 1986] ["rowdy and disruptive behavior . . . could have been prevented had the teacher been present"].) Moreover, notice of "horseplay" may itself "warrant closer supervision." ( See Berdecia v City of New York, 289 AD2d 354, 354-55 [2d Dept 2001].)
As to causation, Defendants do not make a prima facie showing that "even the most intense supervision could not have prevented" Jacov's fall ( see Convey of Rye School Dist., 271 AD2d at 160.) At his deposition, Jacov could not say how much time passed from the time he left the class until the time of the accident, and Rabbi Reinetz's Affirmation speaks only of "[s]everal minutes" (Affirmation at 2.) This is an insufficient record for a conclusion that as a matter of law Defendants' inadequate supervision, if it be proved, was not a substantial factor in Jacov's fall.
To the extent, moreover, if at all, Jacov's own conduct contributed to his fall in that he left class without permission, if proved, or was running on the stairway, as he testified at his deposition, or both, it can hardly be said on this record as a matter of law that his conduct was the sole proximate cause of the fall. ( See Benedek v Richland Manor Assoc., LLC , 21 Misc 3d 1135 [A], 2008 NY Slip Op 52350 [U], * 5-* 6 [Sup Ct, Kings County 2008].)
As to Plaintiffs' premises liability claim, given the evidentiary deficiencies described above, there is insufficient foundation for the opinions offered in the Affidavit of Jeffrey J. Schwalje, P.E. It seems clear from a review of the materials submitted, however, and from Plaintiffs' failure to even address the claim in their opposition papers, that the premises liability claim will not be significant as this action proceeds.
Since Defendants have failed to carry their burden of showing prima facie that they are entitled to judgment as a matter of law, it is unnecessary to consider the sufficiency of Plaintiffs' opposition papers. ( See Kim L. v Port Jervis City School Dist. , 77 AD3d 627 , 630 [2d Dept 2010].)
Defendants' motion is denied.