Palopoli v. Sewanhaka Cent. High Sch. Dist.

• Decision Date: 07 November 2018
• Docket Number: 2016–04486,Index No. 14468/13
• Citation: Palopoli v. Sewanhaka Cent. High Sch. Dist., 166 A.D.3d 639, 87 N.Y.S.3d 207 (N.Y. App. Div. 2018)
• Parties: Steven P. PALOPOLI, etc., et al., Appellants, v. SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT, et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 639

87 N.Y.S.3d 207

Steven P. PALOPOLI, etc., et al., Appellants,

v.SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT, et al., Respondents, et al., Defendant.

2016–04486

Index No. 14468/13

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

Argued—May 29, 2018

November 7, 2018

Law Office of Mary Ann Candelario LLC, Westbury, NY, for appellants Steven P. Palopoli and Steven M. Palopoli.

Philip J. Rizzuto, P.C., Uniondale, N.Y. (Kristen N. Reed of counsel), for appellants Samantha DiMatteo and Kimberly DiMatteo.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), for respondents.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, etc., the plaintiffs Steven P. Palopoli and Steven M. Palopoli appeal, and the plaintiffs Samantha DiMatteo and Kimberly DiMatteo separately appeal, from an order of the Supreme Court, Nassau County (John M. Galasso, J.), entered February 25, 2016. The order, insofar as appealed from by the plaintiffs Steven P. Palopoli and Steven M. Palopoli, granted that branch of the motion of the defendants Sewanhaka Central High School District, H. Frank Carey High School, and We Transport Incorporated which was for summary judgment dismissing the complaint of those plaintiffs insofar as asserted against them. The order, insofar as appealed from by the plaintiffs Samantha DiMatteo and Kimberly DiMatteo, granted that branch of the motion of the defendants Sewanhaka Central High School District, H. Frank Carey High School, and We Transport Incorporated which was for summary judgment dismissing the amended complaint of those plaintiffs insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the motion of the defendants Sewanhaka Central High School District, H. Frank Carey High School, and We Transport Incorporated for summary judgment dismissing the complaint of the plaintiffs Steven P. Palopoli and Steven M. Palopoli and the amended complaint of the plaintiffs Samantha DiMatteo and Kimberly DiMatteo insofar as asserted against them is denied.

The infant plaintiff Steven P. Palopoli testified at a deposition that he boarded a school bus parked outside of H. Frank Carey High School and attempted to sit in the only available seat, which was next to the defendant Jonathan Torres. When Palopoli asked Torres whether he could sit next to him, Torres stood up, pushed past Palopoli, and started to exit the bus. Palopoli yelled to Torres not to push him, and Torres ran toward Palopoli, stating, "It's on now." Torres proceeded to punch Palopoli four or five times in the face, and then started slamming Palopoli's head against the interior of the bus. Palopoli fell on top of the infant plaintiff Samantha DiMatteo during the scuffle, and Torres, who continued to hit Palopoli, also made contact with DiMatteo's head with several blows. Torres continued punching Palopoli, who started bleeding, as Palopoli fell to the floor of the bus. After Palopoli lost consciousness, Torres stopped throwing punches.

When the fight initially began, the bus driver exited the bus. A security aide entered the bus during the fight, but, according to DiMatteo, the security aide did not intervene to stop the fight. According to the bus driver, the security aide told the students to stop fighting and then radioed for assistance, and three additional security aides entered the bus thereafter, but the bus driver did not see whether any of the security aides intervened to stop the fight.

Palopoli, by his father, and his father individually (hereinafter together the Palopoli plaintiffs), and DiMatteo, by her mother, and her mother individually (hereinafter together the DiMatteo plaintiffs), commenced separate actions, which were subsequently consolidated, alleging, inter alia, negligent supervision by the defendants Sewanhaka Central High School District, H. Frank Carey High School, and We Transport Incorporated (hereinafter collectively the school defendants). The school defendants moved for summary judgment dismissing the Palopoli plaintiffs' complaint and the DiMatteo plaintiffs' amended complaint insofar as asserted against them. The plaintiffs opposed the motion. The DiMatteo plaintiffs also cross-moved, inter alia, to compel the disclosure of any disciplinary records relating to Torres. The Supreme Court granted the school defendants' motion and denied the DiMatteo plaintiffs' cross motion. The Palopoli plaintiffs and the DiMatteo plaintiffs separately appeal.

The Supreme Court should have denied the school defendants' motion for summary judgment dismissing the complaint and the amended complaint insofar as asserted against them. Schools have a duty to adequately supervise the students in their care and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision (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 ; Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ). The standard for determining whether a school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information (see David v. County of Suffolk, 1 N.Y.3d...