Thacker v City of New York
Annotate this CaseDecided on May 29, 2009
Supreme Court, New York County
Jennifer Thacker, an infant, by her mother and natural guardian Sharon Thacker, and Sharon Thacker, individually., Plaintiff (s),
against
City of New York, Harlem School of the Arts, Inc., and Carlton Taylor, Defendant (s).
401798-05
ATTORNEY FOR THE PLAINTIFF :
NEAL FORMAN
26 COURT STREET, BROOKLYN, NEW YORK 11242
1-718 625-4423
ATTORNEY FOR THE DEFENDANT :
O'CONNOR O'CONNOR HINTZ / ANO
ONE HUNTINGTON QUAD-STE.1C07, MELVILLE, NEW YORK 11747
1-631 777-2330
ATTORNEY FOR THE DEFENDANT :
HARVEY & VANDAMME, LAW OFFCS.
90 BROAD STREET - SUITE 2202, NEW YORK, NY 10004
646-428-2650
ATTORNEY FOR THE DEFENDANT :
PRESTON WILKINS & MARTIN LLC
65 BROADWAY, SUITE 508, NEW YORK, NEW YORK 10006
(212) 809-0000
ATTORNEY FOR THE DEFENDANT :
ROBIN HARRIS KING FODERA/ET AL
1 BATTERY PARK PLAZA - 30TH FL, NEW YORK, NEW YORK 10004
1-212 487-9701
Judith J. Gische, J.
Plaintiff Jennifer Thacker ( plaintiff"), a student at defendant Harlem School of the Arts, Inc. ( HSA") seeks to recover damages for personal injuries she allegedly sustained when she was shoved by defendant Carlton Taylor ( Taylor"). This suit is brought on Jennifer's behalf by her mother, Sharon Thacker who has also asserted a derivative claim for loss of services.
Issue has been joined by The City of New York and HSA, the moving defendants who now
seek summary judgment dismissing the complaint against them. Taylor has also answered, but
takes no position on this motion.
Timeliness of the Motion
Plaintiff argues this motion is untimely because she filed the note of issue on August 25, 2008, but defendants did not file their motion within 60 days of that date. This case was initially assigned to Hon. Marilyn Shafer. It was then randomly reassigned to this part. Although the rules of this part require that motions for summary judgment be made no later than 120 days after the note of issue is filed, Judge Shafer ordered at the preliminary conference that dispositive motions had to be made within sixty (60) days of the note of issue being filed. Thus, it is unrefuted that this motion, made on October 30, 2008, is not timely under the preliminary conference order.
Although Judge Shafer, in her discretion, shortened the period in which to make dispositive motions, this court, also in its discretion, can allow the full 120 days the statute provides, but cannot extend it beyond 120 days, except for good cause shown. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004); Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725 (2004).
Since the 60 day deadline was discretionary, and the court may always visit its discretionary
order, the courts finds that this motion is timely. Defendants have presented good cause for why
the motion was brought later than 60 days, and they believed the deadline had been adjusted to
120 days, as CPLR 3212 provides. Since this motion was brought within a 120 days of the note
of issue being filed, and since the court can always revisit its own orders, this motion is timely
and will be considered on the merits; the court's decision and order is as follows:
Arguments
Plaintiff, Taylor and other students (as many as five) were participants in an after school program choir program that met at HSA. The students were trying out for the choir and expected to meet the new program director. Plaintiff was an enrolled student at the Professional Performing Arts School ( PPAS"). PPAS has a relationship with HSA and PPAS students attend HSA programs. Prior to the date of the accident (February 26, 2004), Taylor was also a student at PPAS. It is alleged, however, that Taylor had previously been suspended from PPAS. That day, however, Taylor arrived with other PPAS students and he appeared for the tryout.
Plaintiff alleges in her complaint that Taylor shoved her causing her to sustain injuries to her knee, requiring installation of hardware in that joint. According to plaintiff, this incident took place in the hallway of the HSA, right after the music director ( Phillips") announced that there was pizza in the teacher's lounge. There was only one pie (eight slices) for all the students. Phillips reportedly told them he wasn't sure how many slices remained, but that it was a first come, first served situation" and that they should run there, eat whatever was left and come back to meet the new choir teacher. Plaintiff claims that the incident occurred in part because the students were running to get pizza. [*2]
Plaintiff alleges that the defendants were negligent because Phillips should have known better than to make such an announcement on the afternoon of a long day and that this precipitated a rush to the lounge in a last one there" game.
Plaintiff testified at her deposition ( EBT") that Taylor had a long history of disciplinary problems at PPAS, including a prior incident involving her. During that incident she and Taylor had exchanged nasty remarks. Taylor called her a bitch" and plaintiff called him a fag." Taylor threatened her with a glass bottle, and when he was reprimanded by a teacher, he threw over a chair in a rage. Plaintiff also testified about an incident involving Taylor and another student. Taylor reportedly shoved a PPAS student on the bus as it left the school.
According to plaintiff, Taylor was not a student of PPAS on the day of the accident, but had suspended from that school before then and not been reinstated. Plaintiff alleges that HSA knew or should have known about Taylor's violent propensity because of the relationship between the school and the program. Plaintiff states further that Taylor had been called to the principal and vice principal's office on several occasions and his mother had been called in for a conference prior to incident.
Taylor, Phillips, the head of security ( Grant"), and the vice-president of the program ( Bertrand") were deposed.
Taylor denies he pushed Jennifer on purpose. He testified at his EBT that the students were playing around" and it was like a race" because there was pizza at the end of it . . . we were trying to beat each other there." He stated that as we were running down the hallway, I stumbled . . . I stumbled and I grabbed onto Jennifer for balance . . ." According to Taylor, both of them were running very fast, but plaintiff was ahead of him.
Grant observed the students running. They were by themselves, and plaintiff was ahead of Taylor. Grant yelled to them them no running" or stop running." Although he was present at the time of the accident, he did not see what happened, but responded when he heard plaintiff scream.
Bertrand testified that he was the vice-president of the program at HSA on the day of the accident and he had held that position for 29 years. On the day of the accident, he knew Taylor was at HSA as part of the program that day. Bertrand assumed [Taylor] was a PPAS student," but found out later, after the incident, that Taylor was not. When asked whether he knew about previous discipline or behavior problems involving Taylor, Bertrand responded on a general basis I knew that there were some dispositional issues . . . I knew that he was a student that could be a little moody and temperamental." Bertrand did not know, however, about any specific instances. He also testified that there was a file on the PPAS students, but that was sort of a separate program within our school that was coordinated by the music department . . ."
Phillips was the head of the music department. He testified that on the day of the accident, Taylor was not a usual participant of the choir program, but all students" had been invited to audition and the pizza was an enticement for them to come to do so. Phillips assumed that Taylor was a PPAS student because he came with a group of students (including plaintiff) who were. Phillips testified he was aware of a few incidents" involving Taylor, including a fight on the dance floor while practicing dance moves, and that Taylor had been involved in a bottle throwing incident while on the bus that transported PPAS students to HSA.
Defendants contend that they were not negligent. While acknowledging a general duty to
[*3]adequately supervise their students, they argue that did not
have actual or constructive knowledge that Taylor had engaged in prior similar conduct, and
therefore the dangerous conduct that resulted in plaintiff's injuries could not have reasonably
been anticipated. Defendants contend through the affidavits of various school personnel that
searches were made for records pertaining to Taylor." The Director for Human Resources for
HSA provides her sworn affidavit that her search showed Taylor registered for the program and
paid a fee, but did not reveal any additional information." The Assistant Principal of PPAS
states in his sworn affidavit that he school also conducted a search for records and based upon
our search, Taylor was never suspended, disciplined, or placed on disciplinary watch while he
was a student at PPAS. There were no incident reports regarding Taylor. Taylor's discharge from
the PPAS was soley based upon his academic performance." Plaintiff contends these are
misleading affidavits tending only to show that the schools could not find any records,
which is different from there being no reported incidents.
The standard applicable to a motion for summary judgment
A movant seeking summary judgment in its favor must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d
851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form.
Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this
burden shifts to the opposing party who must then demonstrate the existence of a triable issue of
fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of
New York, 49 NY2d 557 (1980).
Discussion
Schools must supervise their students with the same degree of care and supervision a reasonably prudent parent would exercise in comparable circumstances. Miranda v. City of New York, 190 AD2d 282, 288 (1st Dept 1993) affirm'd Mirand v. City of New York, 84 NY2d 44 (1994). This is because while a student is at school, the school has physical custody of that student. Although the school is not an insurer of its students' safety, a school will be held liable for a foreseeable injury proximately related to the absence of supervision." Miranda v. City of New York, supra at 288 (internal citations omitted). The standard used for determining whether a school was negligent in executing its supervisory responsibility is whether a parent of ordinary prudence, placed in the identical situation and armed with the same information, would invariably have provided greater supervision. Id.
Defendants do not deny owing a duty of care to plaintiff, a student. They contend, however, that the absence of proof of prior dangerous conduct by Taylor establishes their defense, that Taylor's actions were impulsive, unanticipated, and therefore, unforeseeable. Mirand v. City of New York, 84 NY2d 44 (1994). This argument, however, is based upon the searches administrative personnel did for records about any disciplinary action against Taylor. The persons providing affidavits attest they found no records of complaints, actions, etc. There is, however, evidence that Taylor had been in trouble before, and plaintiff testified he had threatened her with a glass bottle.
Both Bertrand and Phillips testified they knew about Taylor's issues," but since the program was open to all students, he was welcome. Defendants have not met their burden on [*4]this motion, which is to prove that Taylor's actions were the impulsive and unanticipated act of a fellow student. Even if they have made such a prima facie showing, plaintiff has raised triable issues of fact whether there was prior conduct by Taylor that would have put a reasonable person on notice to protect against the injury-causing act. Mirand v. City of New York, supra.
There is the triable issue of whether the defendants adequately supervised the students in their charge. Mirand v. City of New York, 84 NY2d 44 (1994). As a general rule, a school cannot be expected to monitor students' every move. Mirand v. City of New York, supra. Here, however, there is evidence that the students were allowed to leave the instructor's presence and instructed to hurry up and get pizza. Once they left the room and the teacher's presence, they began running down the hall and engaging in horseplay. Given the age of these students, and the circumstances presented, it is for the jury to decide whether the students were adequately supervised, and if they were not, whether the lack of supervision was the proximate cause of plaintiff's injuries. Id.
Having failed to prove their defenses, defendants have not met their burden with respect to their motion for summary judgment dismissing the claims against them. There are, in any event, triable issues of fact. Consequently, defendants' motion for summary judgment must be denied.
Since this case is ready for trial, plaintiff shall serve a copy of this decision and order on the
Trial Support Office so that it may be scheduled.
Conclusion
Defendants' motion for summary judgment is denied for the reasons afore stated. Plaintiff shall serve a copy of this decision and order on the Trial Support Office so that it may be scheduled. Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.
This constitutes the decision and order of the court.
Dated:New York, New York
May 29, 2009So Ordered:
_______________________
Hon. Judith J. Gische, J.S.C.
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