McGarvey v. Eldred Cent. Sch. Dist.

• Docket Number: CV-22-2215
• Decision Date: 02 November 2023
• Citation: 2023 NY Slip Op 05570
• Parties: Graham McGarvey et al., Individually and as Parents and Guardians of G.B. et al., Infants, Appellants, v. Eldred Central School District, Respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 05570

Graham McGarvey et al., Individually and as Parents and Guardians of G.B. et al., Infants, Appellants,
v.
Eldred Central School District, Respondent.

CV-22-2215

Supreme Court of New York, Third Department

November 2, 2023

Calendar Date: September 7, 2023

Rubino Law Firm, Yonkers (JenniElena Rubino of counsel), for appellants.

The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), for respondent.

Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Powers, JJ.

Reynolds Fitzgerald, J.

Appeal from an order of the Supreme Court (Kevin R. Bryant, J.), entered May 10, 2022 in Sullivan County, which granted defendant's motion for summary judgment dismissing the complaint.

Commencing with the 2013-2014 school year and continuing through the 2018-2019 school year, G.B. and E.M. (hereinafter collectively referred to as the children) were students in defendant's school district. Throughout that period, plaintiffs allege that the children were subjected to harassment and bullying by fellow students, including name calling, taunting and physical altercations. Plaintiffs allegedly reported the bullying and harassment to school officials and concede that some remedial action was taken; however, they allege that the school failed to investigate all reports, that the remedial action taken by the school was inadequate, and that the harassment and bullying allegedly continued. Plaintiffs allege that the bullying and harassment had a negative effect on the children, causing their academic performance to suffer, and that the children responded with retaliatory behavior resulting in their suspensions from school. ^[1] Ultimately, after a lengthy out-of-school suspension, G.B. was transferred to the Board of Cooperative Educational Services program.

Plaintiffs, individually and as parents of the children, commenced this action against defendant alleging that the children sustained physical, mental and emotional injuries as a result of defendant's negligent supervision of its students. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion, and this appeal by plaintiffs ensued. We affirm.

"It is well-settled that schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Brandy B. v Eden Cent. School Dist., 15 N.Y.3d 297, 302 [2010] [internal quotation marks and citations omitted]; see Rose v Onteora Cent. School Dist., 52 A.D.3d 1161, 1162 [3d Dept 2008]). "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 [the] injury; that is, that the third-party acts could reasonably have been anticipated" (Motta v Eldred Cent. Sch. Dist., 141 A.D.3d 819, 821 [3d Dept 2016] [internal quotation marks and citations omitted]; see Wilson v Vestal Cent. School Dist., 34 A.D.3d 999, 1000 [3d Dept 2006]). "Furthermore, the injuries sustained by a plaintiff must be proximately caused by the school's breach of its duty to provide adequate supervision" (Motta v Eldred Cent. Sch. Dist., 141 A.D.3d at 821 [citation omitted]; see Wood v Watervliet City School Dist., 30 A.D.3d 663, 664 [3d Dept 2006]). At the same time, "[s]chools are not insurers of safety,... for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another" (Mirand v City of New York, 84 N.Y.2d 44, 49 [1994] [internal quotation marks and citation omitted]; see Conklin v Saugerties Cent. Sch. Dist., 106 A.D.3d 1424, 1425 [3d Dept 2013]; Moffatt v North Colonie Cent. School Dist., 82 A.D.3d 1311, 1311 [3d Dept 2011]).

Initially, plaintiffs' contentions that Supreme Court was heavily influenced by G.B.'s crime of making a terroristic threat and that the children's disciplinary records are hearsay and inadmissible are unpreserved as these contentions were not raised before Supreme Court (see Ross v State of New York, 217 A.D.3d 1225, 1226 [3d Dept 2023]; Harris v Schreibman, 200 A.D.3d 1117, 1129 [3d Dept 2021]).

Turning to plaintiffs'...