James by James v. Gloversville Enlarged School Dist.
| Decision Date | 16 November 1989 |
| Citation | 548 N.Y.S.2d 87,155 A.D.2d 811 |
| Parties | , 57 Ed. Law Rep. 533 Victor L. JAMES, Jr., II, an Infant, by Beverly H. JAMES, His Mother and Natural Guardian, et al., Respondents, v. GLOVERSVILLE ENLARGED SCHOOL DISTRICT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Roemer & Featherstonhaugh (Melissa J. Smallacombe, of counsel), Albany, for appellant.
David Blatt, Gloversville, for respondents.
Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and HARVEY, JJ., concur.
Appeal from an order of the Supreme Court (White, J.), entered September 16, 1988 in Fulton County, which denied defendant's motion for summary judgment dismissing the complaint.
This is an action to recover damages for personal injuries sustained by an infant in the schoolyard of defendant's Park Terrace Elementary School in the City of Gloversville, Fulton County, during a postlunch recess period. The complaint alleges that plaintiff Victor L. James, Jr., II (hereinafter plaintiff) was "set upon, hit, kicked, pushed, struck, beaten, and thrown to the ground" by a fourth grade classmate (hereinafter the student) and predicates liability upon defendant's failure to properly supervise, control, regulate and safeguard pupils within the recess area of its school. Following discovery, Supreme Court denied defendant's motion for summary judgment dismissing the complaint, giving rise to this appeal.
Defendant has contended in both its motion before Supreme Court and its brief before this court that it made a prima facie showing of entitlement to summary judgment as a matter of law through the tender of evidence sufficient to eliminate from the case any triable issues of fact. Defendant contends that it proved through sworn deposition testimony that it fulfilled its duty to adequately supervise the area by providing four or five supervisory personnel who were on duty in the playground during the recess. Further, defendant claims that the intervening culpable act of the student was the proximate cause of plaintiff's injuries, obviating any issue of foreseeability. Defendant argues that plaintiffs failed to sustain their burden of proving the existence of material triable issues of fact and that Supreme Court erred in denying its motion for summary judgment. We disagree and affirm.
While ordinarily an attorney's affidavit not based on personal knowledge is insufficient to defeat a summary judgment motion (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718), here plaintiff's attorney specifically based his affidavit upon sworn testimony from the hearing conducted pursuant to General Municipal Law § 50-h and the examinations before trial of the school principal and plaintiff's teacher. In addition, examination before trial testimony of plaintiff and his mother was submitted together with an opposing affidavit from plaintiff. Plaintiff averred that he told his teacher that the student had tripped him shortly before the attack in question and that she did nothing about it. He further contended that the lunchroom aides were sitting on a bench talking to each other with their backs to the scene of the incident, contrary to specific written rules and guidelines for personnel assigned to oversee the recess, and that no aide supervisor was present. Plaintiff and his mother also testified that they had reported previous occasions when the student had picked on plaintiff to plaintiff's teacher.
Although a board of education is not an insurer of the safety of its students (Lawes v. Board of Educ. of City of N.Y., 16 N.Y.2d 302, 266 N.Y.S.2d 364, 213 N.E.2d 667), there is an obligation to adequately supervise the activities of students within its charge (Cavello v. Sherburne-Earlville Cent. School Dist., 110 A.D.2d 253, 255, 494 N.Y.S.2d 466, appeal dismissed 67 N.Y.2d 601, 499 N.Y.S.2d 1027, 490 N.E.2d 555), and it will be held liable for a foreseeable injury proximately related to the absence of supervision (Lauricella v....
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...authority and persuasiveness of the Levandoski case. ¶ 46. As persuasive as Levandoski is, so too is James v. Gloversville Enlarged Sch. Dist., 155 A.D.2d 811, 548 N.Y.S.2d 87, 88-89 (1989), where it was found that a material issue of fact existed as to whether previous complaints about a s......
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