Banks v New York City Dept. of Educ.

[*1] Banks v New York City Dept. of Educ. 2009 NY Slip Op 50425(U) [22 Misc 3d 1134(A)] Decided on February 11, 2009 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 11, 2009
Supreme Court, Richmond County

Celine Banks, as Parent and Natural Guardian of Tyrone Banks, an Infant and Celine Banks, Individually, Plaintiffs,

against

New York City Department of Education, MTA New York City Transit, Cono Turchio John Doe 1, Jane Doe 1, Parents and Natural Guardians of Tyquan Shearin, an Infant, John Doe 2, Jane Doe 2, Parents and Natural Guardians of Cherry Buckley, an Infant, and John Doe 3, Jane Doe 3, Parents and Natural Guardians of Jessica Carrillo, an infant, Defendants.



100353/05

Thomas P. Aliotta, J.

At the time of the incident giving rise to this action, the infant plaintiff, Tyrone Banks, was a student in the 8th grade at the William A. Morris Intermediate School 61 on Staten Island (hereinafter "I.S. 61"). The complaint alleges that the infant plaintiff sustained serious personal injuries as the result of an incident on January 5, 2004 wherein fellow students "threw a lit firecracker" on board a bus owned by defendant New York City Transit Authority, s/h/a MTA New York City Transit Authority, and operated by defendant Cono Turchio (hereinafter, collectively, "NYCTA").[FN1] It is further alleged that the Board of Education of the City of New York, s/h/a New York City Department of Education (hereinafter "the Board"), was negligent in its supervision of the students on the bus in question, which was purportedly used exclusively for the transport of students from I.S. 61, and that the NYCTA breached its duty to provide for the safety of the infant plaintiff.

To the extent relevant, the infant plaintiff testified at his deposition that while on board the subject bus, he "felt something burning on [his] back... [and then it] started popping... started exploding in different colors and there was smoke coming out from my jacket" (EBT of Tyrone Banks, p 17). Soon afterwards, his shirt and jacket caught fire (id. at p 21). The bus driver noticed the fire and helped the infant plaintiff to remove his jacket and shirt (id. at pp 20-21).

Defendant Cono Turchio testified at his deposition that prior to the subject incident, he [*2]observed the students on the bus "yelling and screaming" (EBT of Cono Turchio p 32) and improperly "sitting on top... [and] back sides of the seats" (id. at p 36), and then at some point, he heard "a loud scream, louder than anyone else... [and] observed the [infant plaintiff] run up from the back of the bus... [with the back of his jacket] on fire" (id. at p 38). At this point, the driver halted the bus; stopped the infant plaintiff from running around; and noticed a firecracker "going off" in the back of the infant's collar (id.). He proceeded to rip off the infant's jacket and shirt, and put the fire out with his foot (id.). The driver denied knowledge of any prior complaints concerning the behavior of the children on the bus (id. at pp 20, 72), and denied knowledge of whether his bus was employed exclusively for the transportation of I.S. 61 students (id. at pp 27, 31).

Deposed on behalf of the Board, the Assistant Principal of I.S. 61, William Murphy, testified that his only duties involving the subject bus route were to "line the children up orderly, get them on the bus and make sure they had Metro Cards" (Murphy EBT, pp 9-10). When asked to describe the connection between the school and the bus in question, Mr. Murphy opined that "the 42 [bus] picks up only I.S. 61 students at dismissal" (id. at p 9), and that two [such] buses "were dedicated to just taking students from [school]" (id. at pp 12, 37-38). When next asked if the school assigns a bus matron, he testified "No. It's a City bus. We don't do that" (id. at p 12). Mr. Murphy denied knowledge of any complaints warranting the assignment of a bus monitor (id. at pp 10, 24), and further denied knowledge of any gang problems at the school (id. at p 21). According to the witness, students would be suspended from school if they were involved in a fight on the bus, and their parents would be contacted for other misconduct (id. at p 15). In addition, he stated that any incidents occurring on the way home from school are "logged-in" as an occurrence report (id. at p 16). Mr. Murphy stated that he personally prepared the occurrence report for the subject incident, in which the infant defendants Jessica Carrillo, Tyquan Shearin and Cherry Buckley were identified as participants (id. at pp 30-34). Mr. Murphy denied knowledge of any prior incidents involving said students and the infant plaintiff, as well as any students' use of firecrackers (id. at pp 22, 77-78). He also denied knowledge of any written agreement between the school and the NYCTA pertaining to the exclusivity of the bus route for the school (id. at p 31).

In moving for summary judgment, the Board asserts that (1) it had no duty to protect the infant plaintiff while on board a NYCTA bus; (2) it had no notice that the students involved in the subject incident might throw a lit fire cracker at a fellow student; and (3) the sole proximate cause of this incident was the students' sudden and unforeseeable misconduct. On a prior appeal in this case, the Second Department reversed, as premature, an order granting the Board's original motion for summary judgment, and stated that plaintiffs were entitled under CPLR 3212(f) to "conduct discovery into the issue of whether the New York City Department of Education with the New York City Transit Authority, undertook to provide transportation to the students [of I.S. 61]" (Banks v. New York City Dept of Educ, 39 AD3d 787 [2007]). Discovery is now complete.

Conceding that issues of fact have been shown to exist as to whether, e.g., the Board and the NYCTA agreed that the "42" bus was to be used exclusively for the transportation of I.S. 61 students, and thus, whether the students were subject to the Board's control at the time of the subject incident, plaintiffs have failed to demonstrate that either of the moving defendants were on notice about the possibility of the alleged misconduct. Neither have they established any "special relationship" with the NYCTA.[FN2] [*3]

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 is well settled that a plaintiff must establish that school authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury to reasonably anticipate the acts of the third parties (see Hallock v. Riverhead Cent School Dist, 53 AD3d 527 [2nd Dept 2008]). Here, the Board has established its prima facie entitlement to judgment as a matter of law by submitting evidence that it had no sufficiently specific notice or knowledge of the misconduct alleged, whether on the bus or at school. Thus, the acts of the students in this case reasonably could not have been anticipated (id.; see Filiberto v. City of New Rochelle, 35 AD3d 654 [2nd Dept 2006]; cf. McElrath v. Lakeland Cent School Dist, 18 AD3d 831, 832 [2nd Dept 2005]). To the contrary, the Board has demonstrated that the subject incident was the result of a sudden, unexpected, and unforeseeable act that would not have been prevented by more intense supervision (see Luina v. Katherine Gibbs School NY, Inc., 37 AD3d 555 [2nd Dept 2007]).

Thus, the Court is unable to ascribe to plaintiffs' contention that the students' "yelling and screaming" on the bus immediately prior to the subject occurrence was sufficient to put the Board on notice of the possibility that the defendant students would toss a lit incendiary device at a fellow student (see Strnad v. Floral Park-Bellerose Union Free School Dist, 50 AD3d 774 [2nd Dept 2008]). In addition, plaintiffs' general assertion that the presence of more or better supervision would have prevented the injury is wholly speculative, and therefore insufficient to rebut the Board's prima facie case (cf. Guzman v. New York City Dept of Educ, 49 AD3d 601 [2nd Dept 2008]). In the absence of any evidence sufficient to raise a triable issue that the incident should reasonably have been anticipated, the Board cannot be found to have breached any purported duty of supervision towards the infant plaintiff. Therefore, the complaint as against it must be dismissed (see Morning v. Riverhead Cent School Dist, 27 AD3d 435 [2nd Dept 2006]).

Somewhat similarly, the NYCTA defendants assert in their cross motion for summary judgment that they had no special duty to protect the infant plaintiff from the criminal acts of third parties. In this regard, it is well established that absent a special relationship between the authority and the person assaulted, the NYCTA owes no duty to protect any person on its premises from assault by a third person (see Louis v. Knowles, 50 AD3d 646, 647 [2nd Dept 2008]; Petkevich v. MTA, 38 AD3d 513 [2nd Dept 2007]). In addition, even if a special relationship could be found to exist, a plaintiff must still establish that the NYCTA did not exercise reasonable care in protecting him or her under the circumstances presented (see Louis v. Knowles, 50 AD3d at 647; Diaz v. City of New York, 250 AD2d 571 [2nd Dept 1998]). Here, it is the opinion of this Court that plaintiffs have failed to raise a triable issue as to either.

In claiming that the moving defendants failed to exercise reasonable care, the infant plaintiff attests that "prior to January 5, 2004 student fights as well as damage to property occurred on the buses and I am aware of at least one occasion during the school year when teachers from William A. Morris I.S. 61, had to ride on the buses to control the behavior of the students" (see Affidavit of Tyrone Banks, dated October 15, 2005). The infant plaintiff further attests that just "prior to the incident several students behind me were loudly talking about doing something but as it did not involve me I ignored their activities" (id.). [*4]

In the opinion of this Court, the unsubstantiated claim that certain unnamed students had become disruptive on previous bus rides is insufficient to raise a triable issue that defendants should reasonably have anticipated that a lit firecracker would be thrown at the infant plaintiff or any other bused student (see Rabadi v. County of Westchester, 160 AD2d 858, 859 [2nd Dept 1990]). Moreover, although the injury to the infant plaintiff was preceded, to the bus driver's knowledge, by students yelling and screaming and improperly sitting on, e.g., the tops of the seats, the foregoing is insufficient to impose upon to NYCTA a special duty to protect the infant plaintiff from the sudden and unforeseeable assault by fellow passengers (see Oppenheim v. New York City Tr Auth, 237 AD2d 588, 589 [2nd Dept 1997]). In this regard, it is not without significance that the infant plaintiff "ignored the [disruptive] activities" of his peers because, he said, "it did not involve me".

Accordingly, it is

ORDERED that the motion and cross motion for summary judgment by defendants New York City Board of Education, s/h/a the New York City Department of Education, the New York City Transit Authority, s/h/a the MTA New York City Transit, and Cono Turchio are granted; and it is further

ORDERED that the complaint and any cross claims as against the foregoing defendants are severed and dismissed; and it is further

ORDERED that the action shall continue as to each of the remaining defendants; and it is further

ORDERED that the Clerk enter judgment accordingly.

ENTER,

_/s/________________________

Thomas P. Aliotta

J.S.C.

DATED: February 11, 2009 Footnotes

Footnote 1:The Notice of Claim alleges, in pertinent part, that the infant plaintiff "was assaulted by three unsupervised students who tossed a lit incendiary device onto his person setting his clothing ablaze". As a result, the infant plaintiff is claimed to have suffered, inter alia, second and third degree burns to his neck and upper back requiring skin grafts and resulting in scarring (see Notice of Claim).

Footnote 2:While there is deposition testimony that the subject bus route provides some designated service for the school, the bus driver and the school's assistant principal each testified at their depositions that they were unaware of any written agreement in which the NYCTA would provide transportation exclusively for the school. This testimony is consistent with an affidavit from the NYCTA's General Superintendent for Special Operations, Karl Striker, who averred that "there [was] no contract between the City of New York and New York City Transit Authority with respect to providing school bus services" (NYCTA Exhibit "J"). The General Superintendent further attests that "Upon knowledge and belief the only service New York City Transit Authority provides [relative to I.S. 61] is an off-route bus to school 1/4 (one quarter) of a mile off route. Such bus is open to all fare paying passengers, not only schoolchildren, and operates along its regular route upon leaving the designated school" (id.).