                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 7, 2016                      522416
________________________________

ANTHONY MOTTA JR., an Infant,
   by ANTHONY MOTTA
   SR. et al., His Parents,
   et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

ELDRED CENTRAL SCHOOL
   DISTRICT,
                    Respondent.
________________________________


Calendar Date:   May 23, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


      The Rubino Law Firm, Yonkers (Jennielena Rubino of
counsel), for appellants.

      Hogan, Sarzynski, Lynch, Dewind & Gregory, LLP, Johnson
City (Cameron B. Daniels of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from an order of the Supreme Court (McGuire, J.),
entered March 26, 2015 in Sullivan County, which granted
defendant's motion for summary judgment dismissing the complaint.

      During the 2011-2012 and 2012-2013 school year, plaintiff
Anthony Motta Jr., a student at Eldred Junior-Senior High School,
was subjected to harassment and bullying by several classmates,
who called him disparaging epithets, urinated on him, damaged or
otherwise snatched his belongings and engaged in physical
altercations with him. On several occasions, the school
                              -2-                522416

principal, a guidance counselor and a school security guard were
notified of the bullying and some remedial action was taken; the
bullying allegedly continued. The harassment and bullying
allegedly had a negative effect on, among other things, Motta's
academic performance, requiring him to repeat ninth grade, as
well as his behavior in that he engaged in physical altercations
with his classmates that resulted in his suspensions from school.
Ultimately, defendant transferred Motta to the Boards of
Cooperative Educational Services program.

      Plaintiffs commenced this action against defendant alleging
that Motta sustained physical, mental and emotional injuries as a
result of defendant's negligent supervision of its students and
its violation of the Dignity for All Students Act (Education Law
§ 10 et seq. [hereinafter DASA]). Following joinder of issue,
defendant moved for summary judgment dismissing the complaint.
Supreme Court, finding that DASA does not create a private right
of action and that defendant was not deliberately indifferent to
the incidences between Motta and his classmates, granted the
motion. This appeal by plaintiffs ensued.

      Initially, we find no reason to disturb Supreme Court's
finding that DASA does not provide for a private right of action.
There is no explicit private right of action in the statutory
scheme nor can one be implied from the statutory language and the
legislative history (see Executive Law § 10 et seq.; Carrier v
Salvation Army, 88 NY2d 298, 302 [1996]; Ovitz v Bloomberg L.P.,
77 AD3d 515, 516 [2010], affd 18 NY3d 753 [2012]; Gandler v City
of New York, 57 AD3d 324, 325 [2008]). DASA is intended to
create and implement school board policies in order to "afford
all students in public schools an environment free of
discrimination and harassment" caused by incidents of "bullying,
taunting or intimidation" (Education Law § 10) "through the
appropriate training of personnel, mandatory instruction for
students on civility and tolerance, and reporting requirements"
(People v Marquan M., 24 NY3d 1, 4 [2014]; see Education Law
§ 13). To imply a private right of action would not further the
legislative purpose or comport with the statutory scheme.

      Turning to the negligent supervision cause of action, we
find that the allegations in the complaint are more appropriately
                              -3-                522416

analyzed under the standard set forth in Mirand v City of New
York (84 NY2d 44, 49 [1994]), rather than the "deliberate
indifference" standard – utilized by Supreme Court – which is
applicable to claims arising out of violations of federal law.
"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" (id. [citations omitted]; see Rose v Onteora Cent.
School Dist., 52 AD3d 1161, 1162 [2008]). "In that regard, a
school district is held to the same degree of care as would a
reasonably prudent parent placed in comparable circumstances"
(Hofmann v Coxsackie-Athens Cent. School Dist., 70 AD3d 1116,
1117 [2010] [internal quotation marks and citation omitted]).
"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" (Mathis
v Board of Educ. of City of N.Y., 126 AD3d 951, 952 [2015]
[internal quotation marks and citation omitted]; see Hofmann v
Coxsackie-Athens Cent. School Dist., 70 AD3d at 1117; Rose v
Onteora Cent. School Dist., 52 AD3d at 1162). Furthermore, the
injuries sustained by a plaintiff must be proximately caused by
the school's breach of its duty to provide adequate supervision
(see Wilson v Vestal Cent. School Dist., 34 AD3d 999, 1000
[2006]). Such issues regarding adequate supervision and
proximate cause are generally questions left to the trier of fact
to resolve (see Wood v Watervliet City School Dist., 30 AD3d 663,
664 [2006]; Oakes v Massena Cent. School Dist., 19 AD3d 981, 982
[2005]).

      There is no dispute that, beginning in 2011, defendant had
actual knowledge of the numerous conflicts between Motta and his
classmates. In support of its summary judgment motion, defendant
submitted the affidavits of the school principal and a guidance
counselor, as well as their deposition testimony, indicating that
they investigated, reported and addressed all incidents of which
they were made aware and resolved those conflicts through
discipline of the identified student, mediation, directives to
Motta's teachers and a change in class schedules to keep Motta
                              -4-                  522416

and the identified classmates separated when possible. This
evidence, and the deposition testimony of the school security
officer, further indicated that not all incidents were reported
by Motta to school officials despite being advised to do so, and
that many of the investigations into Motta's complaints concluded
that Motta also engaged in harassing and violent conduct with the
other students. In response, plaintiffs submitted affidavits
from Motta and plaintiff Christine Horne, Motta's mother, as well
as other evidence setting forth specific incidents of harassment
and bullying reported to school administrators that continued
even after remedial measures were taken by defendant.   These
affidavits noted specific occasions where defendant's response to
Motta's complaints of bullying appeared inadequate and, at times,
met with inappropriate responses and the blame was placed on
Motta. Plaintiffs also alleged the detrimental impact that
defendant's failure to adequately address the bullying had on
Motta. We find that the conflicting evidence establishes triable
issues of fact with regard to whether defendant adequately
supervised the students and, if not, whether such negligent
supervision was the proximate cause of Motta's injuries. As
such, defendant's motion for summary judgment should have been
denied (see Hofmann v Coxsackie-Athens Cent. School Dist., 70
AD3d at 1117-1118; Wilson v Vestal Cent. School Dist., 34 AD3d at
1000; Wood v Watervliet City School Dist., 30 AD3d at 664).

     Garry, J.P., Egan Jr., Lynch and Devine, JJ., concur.



      ORDERED that the order is reversed, on the law, with costs,
and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
