         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1269
CA 12-00626
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


LISA A. JOHNSON, INDIVIDUALLY AND AS PARENT
AND NATURAL GUARDIAN OF VALERION JOHNSON,
AN INFANT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROCHESTER CITY SCHOOL DISTRICT,
DEFENDANT-APPELLANT.


CHARLES G. JOHNSON, ROCHESTER (CARA M. BRIGGS OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CHRISTOPHER S. CIACCIO, ROCHESTER, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Harold
L. Galloway, J.), entered December 5, 2011. The order denied the
motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries sustained by her son when a fellow student assaulted him at a
city transit bus stop across the street from their school building
after school’s dismissal. Defendant moved for summary judgment
dismissing the complaint on the grounds that it had no duty to
supervise students off school premises after dismissal from school;
that the assault could not have been foreseen or prevented; and that
the level of supervision that it provided was not a proximate cause of
the injuries to plaintiff’s son. We agree with defendant that Supreme
Court erred in denying its motion.

     The duty of a school district to its students “is strictly
limited by time and space,” i.e., it “exists only so long as a student
is in its care and custody during school hours, and terminates when
the child has departed from the school’s custody” (Norton v
Canandaigua City School Dist., 208 AD2d 282, 285, lv denied 85 NY2d
812, rearg denied 86 NY2d 839; see Harker v Rochester City School
Dist., 241 AD2d 937, 938, lv denied 90 NY2d 811, rearg denied 91 NY2d
957). Here, defendant established its entitlement to judgment as a
matter of law with respect to the element of duty by demonstrating
that plaintiff’s son was safely dismissed from school grounds before
the assault, which occurred beyond the boundaries of school property
                                 -2-                          1269
                                                         CA 12-00626

(see Bowers v City of New York, 294 AD2d 526, 527, lv denied 98 NY2d
613). The evidence that plaintiff submitted in opposition to summary
judgment was insufficient as a matter of law to raise a triable issue
of fact on that element, i.e., whether plaintiff’s son was within
defendant’s custody and control at the time of the assault such that
it owed him a duty of adequate supervision. Plaintiff’s assertion
that defendant knew or should have known of the assailant’s alleged
violent propensities before or on the day of the assault is therefore
insufficient to raise the triable issue of fact necessary to defeat
the motion (see Harker, 241 AD2d at 938).




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
