Siegell v. Herricks Union Free School District

• Decision Date: 10 May 2004
• Docket Number: 2003-02892.
• Citation: 7 A.D.3d 607,777 N.Y.S.2d 148,2004 NY Slip Op 03806
• Parties: PAUL SIEGELL ET AL., Respondents-Appellants, v. HERRICKS UNION FREE SCHOOL DISTRICT, Appellant, IRVING PERGAMENT, Respondent, ET AL., Defendants.
• Court: New York Supreme Court — Appellate Division

7 A.D.3d 607

777 N.Y.S.2d 148

2004 NY Slip Op 03806

PAUL SIEGELL ET AL., Respondents-Appellants, v.HERRICKS UNION FREE SCHOOL DISTRICT, Appellant, IRVING PERGAMENT, Respondent, ET AL., Defendants.

2003-02892.

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 10, 2004.

In an action to recover damages for personal injuries, etc., the defendant Herricks Union Free School District appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated March 11, 2003, as, upon reargument, denied its motion for summary judgment dismissing the complaint and cross claim insofar as asserted against it, and the plaintiffs separately appeal, as limited by their brief, from so much of the same order as, upon reargument, granted that branch of the cross motion of the defendant Irving Pergament, as administrator of the estate of Moshe Pergament, which was for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is modified, on the law, by (1) deleting the provision thereof denying the motion of the defendantHerricks Union Free School District for summary judgment dismissing the complaint and cross claim insofar as asserted against it and substituting therefor a provision granting the motion, and (2) deleting the provision thereof granting that branch of the cross motion of the defendantIrving Pergament, as administrator of the estate of Moshe Pergament, which was for summary judgment dismissing the fifth cause of action, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiffs to the defendantHerricks Union Free School District, the complaint is dismissed insofar as asserted against the defendantHerricks Union Free School District, and the action against the remaining defendants is severed.

In 1993 the then-infant plaintiff, Paul Siegell(hereinafter the plaintiff), and the now-deceased defendant, Moshe Pergament, were students at Herricks High School.During a "frisbee relay race" in physical education class, the plaintiff allegedly sustained personal injuries when Pergament ran into or pushed him from behind while they were going for the same frisbee.The plaintiff and his mother commenced this action against, among others, the Herricks Union Free School District(hereinafter the District) and Moshe Pergament.They asserted causes of action alleging negligent supervision against the District and alleging negligence and battery against Pergament.During the pendency of the action, Moshe Pergament died and was replaced as a defendant by his father, the defendantIrving Pergament, as administrator of his estate.After discovery, inter alia, the District moved and Irving Pergament cross-moved, for summary judgment.The Supreme Court denied the District's motion and granted the cross motion.We modify by granting the District's motion and denying that branch of the cross motion which was to dismiss the fifth cause of action alleging battery against Moshe Pergament.

The Supreme Court should have granted the District's motion for summary judgment dismissing the complaint and cross claim insofar as asserted against it."Schools are under a duty to adequately supervise students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision"(Mirand v City of New York,84 NY2d 44, 49[1994];seeCapotosto v Roman Catholic Diocese of Rockville Ctr.,2 AD3d 384[2003]).In addition, the plaintiff must prove that a school's negligence in supervising its students was a proximate cause of his or her injuries (seeMirand v City of New York, supra at 50;Capotosto v Roman Catholic Diocese of Rockville Ctr., supra)."Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented...