

Cruz v Brentwood Union Free Sch. Dist. (2015 NY Slip Op 01604)





Cruz v Brentwood Union Free Sch. Dist.


2015 NY Slip Op 01604


Decided on February 25, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 25, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
RUTH C. BALKIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2014-09547
 (Index No. 6717/08)

[*1]Jennifer Cruz, etc., appellant, 
vBrentwood Union Free School District, respondent.


Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Michael T. Reagan of counsel), for appellant.
Collado, Collado & Fiore, PLLC, Brentwood, N.Y. (Andrew J. Fiore of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Asher, J.), dated July 15, 2014, as denied that branch of its motion which was for summary judgment dismissing the causes of action alleging negligent supervision.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On April 23, 2007, the plaintiff, who was then a seventh-grade student at West Middle School, in the defendant Brentwood Union Free School District (hereinafter the District), allegedly sustained personal injuries when she was assaulted by two fellow students. The plaintiff, by her mother, commenced this action against the District alleging, inter alia, negligent supervision. The District moved for summary judgment dismissing the complaint. The Supreme Court, among other things, denied that branch of the District's motion which was for summary judgment dismissing the causes of action alleging negligent supervision.
"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 NY2d 44, 49; Khosrova v Hampton Bays Union Free Sch. Dist., 99 AD3d 669). 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, the third-party acts could reasonably have been anticipated (see Brandy B. v Eden Cent. Sch. Dist., 15 NY3d 297, 302; Mirand v City of New York, 84 NY2d at 49; Jake F. v Plainview-Old Bethpage Cent. Sch. Dist., 94 AD3d 804; Buchholz v Patchogue-Medford Sch. Dist., 88 AD3d 843, 844).
Here, in support of that branch of its motion which was for summary judgment dismissing the causes of action alleging negligent supervision, the District failed to establish, prima facie, that the alleged assault was an unforeseeable act or that it had no actual or constructive notice of prior conduct similar to the subject incident (see Khosrova v Hampton Bays Union Free Sch. [*2]Dist., 99 AD3d at 671; Luciano v Our Lady of Sorrows School, 79 AD3d 705; Smith v Poughkeepsie City Sch. Dist., 41 AD3d 579, 580-581). Since the District failed to meet its prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
Accordingly, the Supreme Court properly denied that branch of the District's motion which was for summary judgment dismissing the causes of action alleging negligent supervision.
SKELOS, J.P., BALKIN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court




