Picone v. Mineola Union Free Sch. Dist.

• Decision Date: 14 July 2014
• Docket Number: No. 010091/12.,010091/12.
• Citation: Picone v. Mineola Union Free Sch. Dist., 997 N.Y.S.2d 669 (N.Y. Sup. Ct. 2014)
• Parties: Luke PICONE, an infant by his Mother and Natural Guardian, Romina PICONE, Plaintiff, v. MINEOLA UNION FREE SCHOOL DISTRICT, Defendant.
• Court: New York Supreme Court

997 N.Y.S.2d 669 (Table)

Luke PICONE, an infant by his Mother and Natural Guardian, Romina PICONE, Plaintiff

v.MINEOLA UNION FREE SCHOOL DISTRICT, Defendant.

No. 010091/12.

Supreme Court, Nassau County, New York.

July 14, 2014.

Salzman & Weiner, LLP, New York, Attorneys for the Plaintiff.

Ahmuty, Demers & McManus, Esqs., Albertson, Attorneys for the Defendant.

Opinion

RANDY SUE MARBER, J.

Papers submitted:
Notice of Motion (Mot.Seq.01)	x
Affirmation in Opposition	x
Notice of Cross–Motion (Mot.Seq.02)	x
Affirmation in Opposition	x
Reply Affirmation	x

Upon the foregoing papers, the motion (Mot.Seq.01) by the Defendant, MINEOLA UNION FREE SCHOOL DISTRICT, seeking an Order pursuant to CPLR § 3212 granting it summary judgment dismissal of the Plaintiff's complaint and the cross-motion (Mot.Seq.02) by the Plaintiff seeking an Order pursuant to CPLR § 3212 granting him summary judgment as to liability and/or striking the Defendant's answer pursuant to CPLR § 3124 and/or 3126, are determined as hereinafter provided.

This is an action seeking damages for personal injuries allegedly sustained by the Plaintiff, LUKE PICONE, as a result of an incident that allegedly occurred on December 12, 2011 at approximately 3:30 p .m. The Plaintiffs commenced this action by filing a summons and complaint in the Office of the Nassau County Clerk on August 8, 2012. The Defendants served an answer on October 25, 2012.

In his Verified Bill of Particulars, the Plaintiff alleged that he suffered a serious and permanent injury as a result of an incident on a bus when another student, named Lucas, threw his backpack back and forth to the Plaintiff for a prolonged period of time in which the backpack hit the Plaintiff and caused his head to strike the window. (See Verified Bill of Particulars annexed to the Notice of Motion as Exhibit “C”) The Plaintiff alleged that Lucas had a history of throwing objects on the bus prior to this alleged incident. (Id. ) The Plaintiff alleged that the resulting injuries were a direct result of the Defendant's negligence and carelessness. (Id. ) The Plaintiff alleged that Bill Miceli, the aide, and Maria Coleman, the bus driver, were negligent in their operation, management, and supervision of the kindergarten students entrusted to them. (Id. )

On March 21, 2012, the Plaintiff and his mother, Romina Durso Picone (hereinafter “Mrs. Picone”), testified at a 50(h) hearing. The Plaintiff, Luke Picone, testified that on the date of the incident he was sitting towards the back of the bus. (See Transcript of the Plaintiff's 50(h) hearing annexed to the Notice of Motion as Exhibit “D” at p. 10, l. 9–12) He testified that another student named Lucas was throwing his backpack and it hit him on his belly. (Id. at p. 11, l. 5–16) At the time he was hit, the Plaintiff testified that he was sitting on his knees facing the back of the bus and he had his seat belt on. (Id. at p. 11, l. 17–25, p. 12, l. 2–10) The Plaintiff testified that Lucas threw the backpack five times before he was hit. (Id. at p. 12, l. 15–17) When the backpack hit the Plaintiff, he fell and his head hit the window. (Id. at p. 13, l. 2–12) The Plaintiff testified that Bill was in the front of the bus at the time of the incident. (Id . at p. 14, l. 8–10) The Plaintiff testified that he'd never seen Lucas throw his backpack or anything else before that day. (Id. at p. 14, l. 14–20) The Plaintiff testified that he threw the backpack back to Lucas after he threw it to him. (Id. at p. 17, l. 21–25, p. 18, l. 2–6) The Plaintiff did not tell Bill or Maria that he hit his head before he got off the bus. (Id. at p. 23, l. 110–15)

At the Examination Before Trial of the Plaintiff, he testified that on the date of the alleged incident, when Lucas threw the backpack over the seat he would kick it back under the seat. (See EBT Transcript annexed to the Notice of Motion as Exhibit “F” at p. 11, l. 20–25, p. 12, 2)

At the Examination Before Trial of Mr. Miceli, he testified that he was employed by the Defendant as a bus aide and his duties were to make sure the kids were safe, wearing their seatbelts and not acting viciously against each other. (See EBT transcript annexed to the Notice of Motion as Exhibit “I” at p. 7, l. 19–25, p. 8, l. 2) He testified that he was not aware of any incidents involving the Plaintiff prior to the alleged incident. (Id. at p. 12, l. 9–13) Mr. Miceli was not aware of any incidents involving Lucas prior to the alleged incident. (Id. at p. 13, l. 25, p. 14, l. 2–6) Mr. Miceli testified that Lucas was a “thrower”, but that he became aware of that after the alleged incident and that he was calm before the alleged incident. (Id. at p. 15, l. 25, p. 16, l. 2–16) Mr. Miceli only became aware of the alleged incident and that the Plaintiff was injured on the bus a few days after the alleged incident. (Id. at p. 16, l. 17–25, p. 17, l. 2–18)

Mr. Miceli testified that if he saw a student throwing a backpack he would correct him and take the backpack to the front of the bus until the student got off the bus. (Id. at p. 19, 19–25, p. 20, l. 2–8) Mr. Miceli would sit in the front of the bus when the bus was traveling from the school to take kids home. (Id. at p. 20, l. 21–25) He testified that he would listen for crying or yelling and he would look back often to see what was going on. (Id. at p. 21, l. 9–19, p. 23, l. 2–7)

Maria Coleman states in her Affidavit that on December 12, 2011 she was employed as a bus driver for the Defendant. (See Affidavit annexed to the Notice of Motion as Exhibit “J”) Ms. Coleman stated that from September 2011 until December 12, 2011 she was not aware of any students throwing backpacks over the seats of the bus nor was she aware of any incidents or problems between students, Luke Picone and Lucas Antunes. (Id. )

Dr. Sue Fleischman states in her Affidavit, that she was employed by the Defendant as a principal at Willis Avenue School from July 2011 through June 2012. (See Affidavit of Dr. Sue Fleischman annexed to the Notice of Motion as Exhibit “K”) She states that she was not aware of any incidents concerning the Plaintiff and Lucas from September 2011 through December 12, 2011 and that she was not aware of incidents involving students throwing backpacks on the bus from September 2011 through December 12, 2011. (Id. )

In support of its motion, the Defendant submits the pleadings, the transcripts of the Plaintiff and Mrs. Picone, from the 50(h) hearing held on March 21, 2012, the Examination Before Trial (“EBT”) transcripts of the Plaintiff, Mrs. Picone and Bill William V. Miceli (hereinafter “Mr. Miceli”), the Affidavit of Maria Coleman (hereinafter “Ms. Coleman”) dated April 29, 2014 and the Affidavit Dr. Sue Fleischman dated March 25, 2014.

The Defendant argues that the Plaintiff cannot establish negligence on the part of the Defendant because there is no testimony or any other evidence to show that Lucas was a threat to other students prior to the alleged incident. The Defendant argues there is no evidence to show that it had actual or constructive notice of any prior similar conduct on the bus. Further, the Defendant argues that even if the Court finds that it was negligent in its supervision, the Plaintiff cannot establish that such negligence was the proximate cause of his injuries. Specifically, the Defendant contends that based on the testimony of the infant Plaintiff, Lucas threw the backpack five times before the Plaintiff was caused to hit his head and injure himself. The Defendant argues that although no specific time frame was given, in the amount of time it would have taken Lucas to throw the backpack five times the Defendant could not have been able to prevent the injury with even the most intense supervision.

In opposition to the Defendant's motion, the Plaintiff asserts that the motion should be denied because it is was filed late. The Plaintiff argues that the certification order dated January 8, 2014 directs that any summary judgment motions be filed within 60 days of the filing of the Note of Issue. The Plaintiff filed the Note of Issue on March 3, 2014. The Defendant filed its motion on May 2, 2014. The Plaintiff argues that the Defendant's deadline to file its motion was May 1, 2014 and therefore it was late. The Plaintiff contends that because the Defendant did not show good cause as to the late filing of the motion, it should be denied outright.

In opposition to the merits of the Defendant's motion, the Plaintiff argues that there is a question of fact as to whether the Defendant had notice because Mr. Miceli testified that he does not believe that Lucas was a known thrower before the alleged incident instead of affirmatively saying he was not a thrower. The Plaintiff further contends that the only testimony regarding a time frame of the alleged incident is that the backpack was thrown over and back five times. The Plaintiff contends that the Defendant's two employees, Mr. Miceli and Ms. Coleman, should have noticed and the only explanation for them not noticing is that they were not looking back at all. Further, the Plaintiff contends that Mr. Miceli was negligent because he only looked back when he heard cries or yelling, which would be too late to intervene or prevent an occurrence that caused crying.

The Plaintiff contends that the Defendant's counsel ignored the demand for the written materials provided to Mr. Miceli and failed to provide the last name of Lucas until the instant motion.

In his cross-motion, the Plaintiff argues that its grounds for summary judgment are identical to the grounds set forth in the Defendant's motion, just argued in the alternative. The Plaintiff contends that the Defendant did have prior notice of Lucas's propensity to throw things on the bus and that the incident did not arise so suddenly that it could have been prevented with proper supervision.

The Plaintiff asserts that if the Court finds that the Defendant's motion is not late, it should also accept the late filing of the cross-m...