                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 16, 2015                      520231
________________________________

MELISSA B. LaVALLEY, as Parent
   and Guardian of NICHOLAS J.
   LaVALLEY, an Infant,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

NORTHEASTERN CLINTON CENTRAL
   SCHOOL DISTRICT et al.,
                    Appellants.
________________________________


Calendar Date:    June 3, 2015

Before:    Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

                              __________


      Kelly & Leonard, LLP, Ballston Spa (Michael Regan of
Congdon, Flaherty, O'Callaghan, Reid, Donlan, Travis &
Fishlinger, Uniondale, of counsel), for appellants.

      Law Office of Stephen A. Johnston, Plattsburgh (Stephen A.
Johnston of counsel), for respondent.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Muller, J.),
entered September 3, 2014 in Clinton County, which denied
defendants' motion for summary judgment dismissing the complaint.

      Plaintiff commenced this action seeking to recover for
injuries sustained by her son, Nicholas J. LaValley, when he was
assaulted by Timothy Breyette, a fellow ninth grade student at
the high school in defendant Northeastern Clinton Central School
District. After joinder of issue and discovery, defendants moved
for summary judgment dismissing the complaint. Supreme Court
                              -2-                520231

denied the motion and defendants appeal.

      "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
[1994] [citations omitted]). Where a fellow student
intentionally injures another, the duty is breached if the school
had actual or constructive notice of the conduct that caused the
injury such that the acts of the fellow student could have been
reasonably anticipated (see Hofmann v Coxsackie-Athens Cent.
School Dist., 70 AD3d 1116, 1117 [2010]; Wilson v Vestal Cent.
School Dist., 34 AD3d 999, 1000 [2006]; Druba v East Greenbush
Cent. School Dist., 289 AD2d 767, 768 [2001]). The adequacy of
supervision and proximate cause are generally issues of fact for
the jury (see Conklin v Saugerties Cent. Sch. Dist., 106 AD3d
1424, 1426 [2013]; Wood v Watervliet City School Dist., 30 AD3d
663, 664 [2006]).

      Viewing the evidence in the light most favorable to
plaintiff as the nonmovant (see Renwick v Oneonta High School, 77
AD3d 1123, 1124 [2010]; Wood v Watervliet City School Dist., 30
AD3d at 664), we note that Breyette had a history of assaultive
behavior, including a previous assault against LaValley in middle
school that resulted in Breyette's out-of-school suspension.
There is also evidence that, within the month prior to the
assault, Breyette specifically threatened violence against
LaValley, and plaintiff testified that she immediately informed
the high school principal about this threat. Plaintiff also
testified that she brought up the conflict between LaValley and
Breyette during a meeting with the principal and her son's
teachers. Although the principal acknowledged that plaintiff had
informed him about the conflict and he testified that he spoke to
Breyette about it, Breyette denied that the principal had spoken
to him prior to the attack. The attack itself occurred in the
school cafeteria, in close proximity to a teacher who had not
been notified of the threat or the conflict between the two
students. According to Breyette, he calmly approached LaValley,
called his name to get his attention and proceeded to punch him
in the head 37 times without any adult intervention. He did not
stop until another student intervened. In light of this
                              -3-                  520231

evidence, we agree with Supreme Court that factual issues exist
with respect to the adequacy of defendants' supervision and
whether the lack of adequate supervision was a proximate cause of
LaValley's injuries (see Hofmann v Coxsackie-Athens Cent. School
Dist., 70 AD3d at 1118; Wilson v Vestal Cent. School Dist., 34
AD3d at 1001; Druba v East Greenbush Cent. School Dist., 289 AD2d
at 768).

     Peters, P.J., McCarthy and Egan Jr., JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
