Millett v. Brookhaven-Comsewogue Union Free Sch. Dist.
| Decision Date | 03 September 2021 |
| Docket Number | 609221/2018,Mot. Seq. 004 MG,Cal No. 202000858OT |
| Citation | 2021 NY Slip Op 33520 (U) |
| Parties | COLLEEN MILLETT, Plaintiff, v. BROOKHAVEN-COMSEWOGUE UNION FREE SCHOOL DISTRICT, JOSEPH RELLA, as Superintenden,, JOSEPH CONIGLION,, as Principal, and DANA BUNDY Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 1/26/21
ADJ. DATE 7/29/21
MITEV LAW FIRM, P.C. Attorney for Plaintiff
DEVITT SPELLMAN BARRETT, LLP Attorney for Defendanss Brookhaven-Comsewogue UFSD, Coniglione, and Rella
RICHARD J. KAUFMAN, P.C. Attorney for Defendant Bundy
Upon the following papers read on this motion for summary judgment filed electronically and in hard-copy format: Notice of Motioni Order to Show Cause and supporting papers filed by defendants Brookhaven-Comsewogue Union Free District. Rella and Coniglione. on January 25.2021; filed by defendants Brookhaven-Comsewogue Union Free District. Rella. and Coniglione. on January 27, 2021; Notice of Cross Motion and supporting papers __; Answering Affidavits and supporting papers filed by plaintiff, on June 10,2021; Replying Affidavits and supporting papers filed by defendants Brookhaven-Comsewogue Union Free District, Rella, and Coniglione, on July 12,2021; Other 1 - 68; 69 - 97; 98 - 104 it is
ORDERED that the motion by defendants Brookhaven-Comsewogue Union Free District, Joseph Rella, and Joseph Coniglione for summary judgment dismissing the complaint against them is granted.
Plaintiff Colleen Millet commenced this action to recover damages for personal injuries allegedly arising from, inter alia, the negligence and negligent supervision by defendants Brookhaven-Comsewogue Union Free District, Joseph Rella, as superintendent,, and Joseph Coniglione, as principal (collectively, the Comsewogue defendants). Plaintiff allegedly was a senior at Comsewogue High School (hereinafter, the high school), which is located within defendant Brookhaven-Comsewogue Union Free District (the District), and had an Individual Education Program, at the relevant time. Plaintiff claims that she was assaulted by a fellow student, defendant Dana Bundy, on March 10, 2017, in the high school's cafeteria. By the verified complain,, as amplified by the verified bill of particulars, plaintiff alleges, among other things, that the Comsewogue defendants were negligent in, among other things, failing to supervise plaintiff knowing the propensity of fellow students, including defendant Bundy, to bully her, and that they violated, inter alia, the Individual with Disabilities Act (IDEA) and Education Law S 3214. Plaintiff allegedly graduated from the high school on time.
By order dated November 13,2018, this Court, in relevant part, granted the motion by the Comsewogue defendants to dismiss plaintiffs causes of action under the Dignity for All Students Act, for intentional infliction of emotion distress, and for punitive damages against them. Pursuant to the order dated August 19,202,, this Court also granted the motion by defendant Bundy to vacate her default in failing to appear for a compliance conference on September 29,202..
The Comsewogue defendants now move for summary judgment dismissing the complaint against them. They argue in part, that they lacked specific knowledge or notice of plaintiff s alleged assault by defendant Bundy, and that subject altercation occurred so quickly that even the most intense supervision could not have prevented it. The Comsewogue defendants also contend that plaintiff cannot seek money damages based on their alleged violations of the IDEA and Education Law S 3214. In support of their motion, the Comsewogue defendants submit, among other things, the transcripts of plaintiff s testimony from her hearing conducted pursuant to General Municipal Law S 50-h and deposition, the transcript of defendant Coniglioness deposition testimony, and his affidavit. In opposition, plaintiff argues, among other things, that the Comsewogue defendants' motion is largely supported by evidence not in inadmissible form, and that the injury-producing conduct was foreseeable. In support of her opposition, plaintiff submits, among other things, the affirmation of her attorney.
At plaintiffs statutory hearing and deposition, she recounted several incidents involving fellow students occurring on and off school grounds during the 2016-2077 school year. Plaintiff testified that she poured a bottle of water on a fellow student named "Gina" in the high schools senior lounge, in the middle of October 2016, after she found out that "Gina" was dating her ex-boyfriend. Plaintiff allegedly considered "Gina" to be a close friend previously. Plaintiff testified that she was temporally suspended from school following the incident allegedly involving "Gina." She also testified that another student wrote a comment purportedly referring to her on a wall of the high school's senior lounge, at the end of October 2016. Plaintiff allegedly informed defendant Coniglione of the comment,, which he allegedly removed from the wall thereafter. Plaintiff recalled that she was sent a "candygram"" which appeared to be from her ex-boyfriend, in December 2016. Plaintiff allegedly reported the"candygram" incident to defendant Coniglione.
Plaintiff further testified that she was hit in the head by defendant Bundy, who she considered to be a close friend until shortly before the incident, in the high school's cafeteria, in March 2017, at approximately 7:00 a.m. According to plaintiffs statutory and deposition testimony, the subject physical altercation lasted at most 30 seconds. She elaborated that the two spoke for approximately one minute before she was hit in the head by defendant Bundy. When plaintiff was further questioned regarding defendant Bundy's physical conduct during their altercation, she responded that she thought that defendant Bundy may have pulled her hair, and "that was about it." Plaintiff allegedly was "throwing punches" before a teacher pulled her away from defendant Bundy. Plaintiff explained that the alleged assault followed from exchanges on Twitter occurring one or two nights before the subject physical altercation. She clarified that "[i]t wasn't really Dana and [her] talking to each other on Twitter," and that "another kid [] was involved, who was kind of hyping it up." Defendant Bundy allegedly had "blocked" plaintiff on Twitter before the subject physical altercation. Plaintiff admitted that she never shared the tweets allegedly leading up to the physical altercation, which she acknowledged involved no threat of physical harm, with her parents or school personnel,, before the physical altercation. She also testified that she never previously reported any concern regarding defendant Bundy to school personnel..
According to plaintiffs statutory and deposition testimony, she was "cyberbullied" by "Gina" on Twitter nearly everyday of her senior school year. While plaintiff admitted the tweets posted by "Gina" did not refer to her by name, she stated that she assumed that they were about her. Plaintiff allegedly shared screens hots of the tweets posted by "Gina" with defendant Coniglione and the high school's assistant principal. Plaintiff contended that she spoke with defendant Coniglione "[c]ountless times" regarding her concerns of bullying during her senior year.
Jeanne Millet, who allegedly is plaintiffs mother, appeared for a statutory hearing. Mrs. Millet testified that she contacted school personnel on several occasions regarding bullying incidents involving plaintiff. She further testified that she reported certain tweets and instances of a car driving past her home and beeping its horn to school personnel..
According to defendant Coniglioness deposition testimony and affidavit, he was the high school's principal at the relevant time. Defendant Coniglione attests to his familiarity with an incident when plaintiff "shoulder-checked" "Gina" in a hallway of the high school at "one point in the year," and with an incident when plaintiff threw water at "Gina" in October 2016. He also attests to his familiarity with an incident involving a slur purportedly written about plaintiff on a wall of the high school's senior lounge. While an investigation regarding the comment written on the wall allegedly was performed, person who wrote the comment allegedly never was identified. Defendant Coniglione also attests to his familiarity with a "Twitter war" purportedly arising after Gina began dating plaintiffs ex-boyfriend. Defendant Coniglione allegedly recalled exchanges on Twitter regarding "another boy." He testified that he communicated with plaintiff regarding her concerns regarding "cyberbullying," and that he also communicated with her mother regarding her use of social media.
Schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately caused by the absence of adequate supervision (see Mirand v City of New York, 84 N.Y.2d 44,614 N.Y.S.2d 372 [1994]; see Genova v Town of Clarkstown, 195 A.D.3d 598, 144 N.Y.S.3d 633 [2d Dept 2021]; Chen v City of New York, 194 A.D.3d 904, 149 N.Y.S.3d 190 [2d Dept 2021]). However, schools are not the insurers of the safety of their students, and cannot cannot reasonably be expected to continuously supervise and control all of their students' movements and activities (see Wienclaw v East Islip Union Free Sch. Dist, 192 A.D.3d 945, 144 N.Y.S.3d 106 [2d Dept 2021]; J.F. v Brentwood Union Free Sch. Dist, 184 A.D.3d 806,124 N.Y.S.3d 564 [2d Dept 2020]; B.T. v Bethpage Union Free Sch. Dist., 173 A.D.3d 806, 103 N.Y.S.3d 99 [2d Dept 2019]). Moreover, "unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a...
To continue reading
Request your trial