Diaz v. Brentwood Union Free Sch. Dist.

• Decision Date: 13 July 2016
• Citation: Diaz v. Brentwood Union Free Sch. Dist., 2016 NY Slip Op 5485, 141 A.D.3d 556, 36 N.Y.S.3d 161 (N.Y. App. Div. 2016)
• Parties: Jenny Wilson DIAZ, et al., appellants, v. BRENTWOOD UNION FREE SCHOOL DISTRICT, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 556

36 N.Y.S.3d 161

2016 N.Y. Slip Op. 05485

Jenny Wilson DIAZ, et al., appellants,

v.BRENTWOOD UNION FREE SCHOOL DISTRICT, respondent, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

July 13, 2016.

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser of counsel), for respondent.

RANDALL T. ENG, P.J., CHERYL E. CHAMBERS, SHERI S. ROMAN, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated May 12, 2014, which granted the motion of the defendant Brentwood Union Free School District for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On July 14, 2009, at approximately 11:00 a.m., the plaintiff Shaquille Wilson (hereinafter the plaintiff), then 16 years old, allegedly sustained injuries when he was assaulted by members of a gang after being dismissed from summer school at Brentwood High School. The plaintiff, and his mother suing derivatively, commenced this action, inter alia, to recover damages for personal injuries against the defendant Brentwood Union Free School District (hereinafter the defendant), among others.

The defendant moved for summary judgment dismissing the complaint submitting, among other things, the plaintiff's testimony from both the hearing held pursuant to General Municipal Law § 50–h and his deposition. The plaintiff testified at his deposition that, prior to the assault, he was leaving the school at dismissal time along with “[h]undreds” of kids, and that the school security guards were directing the students to leave the property. The plaintiff intended to walk to a restaurant with his friends to get something to eat. Prior to leaving the school grounds, the plaintiff noticed a group of six young men, whom the plaintiff thought were gang members, walking down the street toward the school, yelling “[w]here's the Bloods around here?” At the General Municipal Law § 50–h hearing, the plaintiff testified that he “didn't feel threatened” when he saw the group because he was not a member of a gang, “so [he] didn't think they would mess with [him].” The plaintiff further testified that, while his friends stopped to converse with other students, he continued walking and was assaulted by the six young men after he left the school grounds. At his deposition, the plaintiff testified that, prior to the assault, he had attempted to return to the school campus, but the security guards prevented him from doing so. In the order appealed from, the Supreme Court granted the defendant's motion.

“A school is not an insurer of the safety of its students, and the duty owed to its students ‘is co-extensive with the school's physical custody and control over them’ ” ( Maldonado v. Tuckahoe Union Free School Dist., 30 A.D.3d 567, 568, 817 N.Y.S.2d 376, quoting Morning v. Riverhead Cent. School Dist., 27 A.D.3d 435, 436, 811 N.Y.S.2d 747 ; see Tarnaras v. Farmingdale School Dist., 264 A.D.2d 391, 392, 694 N.Y.S.2d 413 ). “A school's custodial duty ceases once the student has passed out of its orbit of authority and the parent is perfectly free to reassume control over the child's protection” (Vernali v. Harrison Cent. School Dist., 51 A.D.3d 782, 783, 857 N.Y.S.2d 699 ; see Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 ). Thus, a school generally cannot be held liable for injuries that occur off school property and beyond the orbit of its authority (see Vernali v. Harrison Cent. School Dist., 51 A.D.3d at 783, 857 N.Y.S.2d 699 ; Stagg v. City of New York, 39 A.D.3d 533, 534, 833 N.Y.S.2d 188 ; Bertrand v. Board of Educ. of City of N.Y., 272 A.D.2d 355, 707 N.Y.S.2d 218 ; Tarnaras v. Farmingdale School Dist., 264 A.D.2d at 392, 694 N.Y.S.2d 413 ; cf. Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664, 672, 695 N.Y.S.2d 531, 717 N.E.2d 690 ).

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the assault occurred at a time when the plaintiff was not on school property and no longer in the defendant's custody or under its control and was, thus, outside of the orbit of its authority (see Pistolese v. William Floyd Union Free Dist., 69 A.D.3d 825, 827, 895 N.Y.S.2d 125 ; Vernali v. Harrison Cent. School Dist., 51 A.D.3d at 783, 857 N.Y.S.2d 699 ; Stagg v. City of New York, 39 A.D.3d at 534, 833 N.Y.S.2d 188 ). The defendant also demonstrated, prima facie, that the plaintiff was not released into a foreseeably hazardous setting that the defendant had a hand in creating (cf. Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d at 672, 695 N.Y.S.2d 531, 717 N.E.2d 690 ).

We disagree with our dissenting colleague's position that the defendant failed to establish that it provided adequate supervision, and that it was necessary for the defendant to submit affidavits from the school security guards in order to satisfy its initial burden. The plaintiff's own testimony from the General Municipal Law § 50–h hearing, which the defendant submitted in support of its motion, reflects that the plaintiff did not feel threatened by the gang members and that he decided to leave school grounds. Schools “cannot reasonably be expected to continuously supervise and control all movements and activities of students” (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; see Goldschmidt v. City of New York, 123 A.D.3d 1087, 1087, 1 N.Y.S.3d 204 ; Nash v. Port Wash. Union Free School Dist., 83 A.D.3d 136, 146, 922 N.Y.S.2d 408 ). The defendant demonstrated that the plaintiff departed safely from school premises prior to the assault. Once the plaintiff left school premises, the defendant had no duty to supervise him off school premises after dismissal from school (see Johnson v. Rochester City Sch. Dist., 101 A.D.3d 1641, 1642, 956 N.Y.S.2d 370 ; Chalen v. Glen Cove School Dist., 29 A.D.3d 508, 509, 814 N.Y.S.2d 254 ). Furthermore, the defendant established that it assumed no affirmative duty to protect the plaintiff outside of school premises (see Maldonado v. Tuckahoe Union Free School Dist., 30 A.D.3d at 568, 817 N.Y.S.2d 376 ).

In opposition to the defendant's prima facie showing, the plaintiffs failed to raise a triable issue of fact. The plaintiff's affidavit submitted in opposition to the motion merely raised what clearly appear to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony and his General Municipal Law § 50–h hearing testimony, and thus, was insufficient to defeat the defendant's motion (see Bluth v. Bias Yaakov Academy for Girls, 123 A.D.3d 866, 866, 999 N.Y.S.2d 840 ; Cuebas v. City of Yonkers, 97 A.D.3d 779, 780, 948 N.Y.S.2d 688 ).

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

BARROS, J., dissents, and votes to reverse the order, on the law, and deny the motion of the defendant Brentwood Union Free School District for summary judgment dismissing the complaint, with the following memorandum:

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” (Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171 ; Braver v. Village of Cedarhurst, 94 A.D.3d 933, 934, 942 N.Y.S.2d 178 ). In their complaint and verified bill of particulars, the plaintiffs allege that despite the notice that the defendant Brentwood Union Free School District (hereinafter the defendant) had of the presence of gang members directly outside of the high school of the plaintiff Shaquille Wilson (hereinafter the infant plaintiff), the defendant negligently supervised him by “directing [him] to proceed down a street where a dangerous gang was present and into the hands of said gang members.” The gang members stabbed the infant plaintiff in the shoulder, and struck him multiple times in the head with an object, causing him to sustain severe injuries to his brain, left shoulder, and right arm.

In support of its motion for summary judgment dismissing the complaint, the defendant submitted, among other things, the infant plaintiff's deposition testimony, as well as his General Municipal Law § 50–h hearing testimony in which he testified that, as he was leaving the school premises, he told the school's...