Francis v. Mount Vernon Bd. of Educ., 2016–07803

• Citation: 83 N.Y.S.3d 637,164 A.D.3d 873
• Decision Date: 29 August 2018
• Docket Number: Index No. 63868/14,2016–07803
• Parties: Marlene FRANCIS, etc., appellant, v. MOUNT VERNON BOARD OF EDUCATION, respondent.
• Court: New York Supreme Court Appellate Division

164 A.D.3d 873
83 N.Y.S.3d 637

Marlene FRANCIS, etc., appellant,
v.
MOUNT VERNON BOARD OF EDUCATION, respondent.

2016–07803
Index No. 63868/14

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

Argued April 3, 2018
August 29, 2018

83 N.Y.S.3d 638

Cohn & Spector, White Plains, N.Y. (Julius W. Cohn of counsel), for appellant.

O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains, N.Y. (Montgomery L. Effinger of counsel), for respondent.

MARK C. DILLON, J.P., SANDRA L. SGROI, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Terry Jane Ruderman, J.), dated July 5, 2016. The order granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiffs' cross motion, inter alia, to strike the defendant's answer on the ground of spoliation of evidence.

ORDERED that the order is affirmed, with costs.

The complaint alleges that L.F., an infant, sustained injuries when he was picked up and dropped on his head by a fellow student at Mount Vernon High School. The plaintiff, suing individually and as the parent and natural guardian of L.F., commenced this action against the defendant, Mount Vernon Board of Education, to recover damages for personal injuries, alleging that it failed to provide adequate supervision. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion, inter alia, to strike the defendant's answer on the ground of spoliation of evidence. The plaintiff appeals, and we affirm.

We agree with the Supreme Court's determination denying that branch of the plaintiff's cross motion which was to strike the defendant's answer on the ground of spoliation (see Peters v. Hernandez, 142 A.D.3d 980, 981, 37 N.Y.S.3d 443 ; Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d 717, 718–719, 872 N.Y.S.2d 166 ). " ‘When a party negligently loses or intentionally destroys key evidence, thereby depriving the nonresponsible party from being able to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading’ " ( Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d at 718, 872 N.Y.S.2d 166, quoting Denoyelles v. Gallagher, 40 A.D.3d 1027, 1027, 834 N.Y.S.2d 868 ). " ‘[S]triking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct,’ " and thus, a court must " ‘consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary

83 N.Y.S.3d 639

as a matter of fundamental fairness’ " ( Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d at 718, 872 N.Y.S.2d 166, quoting Iannucci v. Rose, 8 A.D.3d 437, 438, 778 N.Y.S.2d 525 ; see Peters v. Hernandez, 142 A.D.3d at 981, 37 N.Y.S.3d 443 ). "When the moving party is still able to establish or defend a case, a less severe sanction is appropriate" ( Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d at 718, 872 N.Y.S.2d 166 ; see Peters v. Hernandez, 142 A.D.3d at 981, 37 N.Y.S.3d 443 ). The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence and this Court will substitute its judgment only where the Supreme Court improvidently exercised such discretion (see Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d 843, 846, 27 N.Y.S.3d 164 ). Here, a video recording which captured the incident from a distance could not be located after it had been viewed by the plaintiff, the police, and school administrators. According to the Principal of Mount Vernon High School, he did not know when the video disappeared but he asserted that its disappearance was accidental and a search had been conducted to locate it. Under these circumstances, where the defendant lost the video recording after having provided it for viewing to the plaintiff and others, the plaintiff would still be able to establish her case at trial despite the absence of the video. As such, the Supreme Court did not improvidently exercise its broad discretion in concluding that the drastic sanction of striking the defendant's answer was unwarranted.

We also agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint. "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 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; see Brandy B. v. Eden Cent. School Dist., 15 N.Y.3d 297, 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 ; Nash v. Port Wash. Union Free School Dist., 83 A.D.3d 136, 146, 922 N.Y.S.2d 408 ). "However, unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school's liability in negligence absent actual or constructive notice of prior similar conduct" ( Brandy B. v. Eden Cent. School Dist., 15 N.Y.3d at 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 ; see Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ). "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" ( Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; see Brandy B. v. Eden Cent. School Dist., 15 N.Y.3d at 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 ; Nash v. Port Wash. Union Free School Dist., 83 A.D.3d at 150, 922 N.Y.S.2d 408 ).

Here, the defendant established its prima facie entitlement to judgment as a matter of law. The defendant submitted evidence that L.F. and the other student had no previous interaction and that the other student's prior disciplinary record did not include any violent act, thereby establishing that the defendant had no specific knowledge or notice of any prior conduct such that L.F.'s alleged assault could reasonably have...