Neves v Katonah-Lewisboro Sch. Dist.
Annotate this Case
Download PDF
Neves v Katonah-Lewisboro Sch. Dist. 2012 NY Slip Op 33605(U) September 19, 2012 Sup Ct, Westchester County Docket Number: 18091/08 Judge: Orazio R. Bellantoni Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] .- - ...... SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. ¢. PRESENT: HON. ORAZIO R. BELLANTONI JUSTICE OF THE SUPRElVIE COURT FILED & ENTERED q/iS I 2012 WESTCHESTER COUNTY ,.. CLERK JOSEPH H. NEVES, Plaintiff, - against - SEp SHORT FORM ORDER KATONAH-LEWISBORO SCHOOL DISTRICT and FRANK MOORE, Index No. 18091/08 .,.,Af, Motion Date: 8/29/1 :Cocr. 2 5 2072 coBiHr c. IDo ·~ Qp 7'Y c1.1:~ 'N1 .. We-~n r-tl( Defendants. Defendant Katonah-Lewisboro School District (KLSD) moves for an order, pursuant to CPLR 3212, granting it summary judgment and dismissing plaintiffs complaint. The follO\ving papers were read: Notice of Motion-Affirmation-Affidavit-Exhibits A-M-Affidavit of Service Memorandum of Law-Affidavit of Service Affinnation in Opposition-Exhibits A-B-Affidavit of Service Memorandum of Law Reply Affirmation-Affidavit of Service 1-17 18-19 20-23 24 25-26 Upon the foregoing papers the motion is decided as follows: By way of background, plaintiff commenced this action seeking damages for personal injuries allegedly sustained as a result of inhalation of smoke on September 22, 2007, while undergoing training to maintain his State of Connecticut Bus Driver's Certification. Plaintiff and approximately fourteen other drivers were seated in bus for the training. Defendant Frank Moore, instructed one of the driver's seated in the rear of the bus to light smoke bombs to simulate an emergency situation. The drivers were 1 CHESTER [* 2] instructed to remain in their seats until the driver of the bus unbuckled them. The plaintiff alleges that he was seated for approximately three minutes before the driver came to unbuckle and evacuate him from the bus. On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter oflaw (see Andre v. Pomeroy, 35 NY2d 361 [1974). The movant must set forth a prima facie showing of entitlement to judgment as matter oflaw, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospiwl, 68 NY2d 320 [1986]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York., 49 NY2d 557 [1980]). Initially, this Court notes that plaintiff concedes that defendant Moore's act of directing smoke bombs to be set off in the school bus was not an incident that arose out of the "use and operation" of a motor vehicle as defined in Vehicle and Traffic Law §388, so as to render KLSD strictly liable by virtue of being the owner of the vehicle. Additionally, plaintiff conceded that KLSD is not liable by Mr. Moore's act based upon the claim of respondeat superior. Accordingly, the branches of defendant's motion which seeks summary judgment as to these causes of action is granted on consent. Plaintiffs remaining cause of action as to KLSD seek damages based upon the doctrine of respondeat superior and negligence. In support its motion KLSD offers the affidavit of James Minahan, Superintendent of Transportation for KLSD. Mr. Minahan states that defendant Frank Moore was employed by KLSD, but is now deceased. Mr. Moore did on occasion ask, and was granted permission, to could conduct training at the School District on the weekends, in the driver's room. Mr. Minahan states that KLSD did not sponsor the training done by Mr. Moore, nor did it receive any money or other remuneration for the training. Mr. Minahan states that he has no knowledge of whether or not the bus on which the training was being conducted was owned by KLSD. The affiant further states that KLSD had no knowledge of the curriculum or subject matter of the training sessions, specifically, it had no knowledge that Mr. Moore would be using smoke bombs during his training. Ultimately, Mr. Minahan states that no accident or incident report was prepared as the matter was not considered a district activity. In instances where an employer cannot be held vicariously liable for an employee's acts, the employer can still be held liable under the theory of negligent supervision (see Kenneth R. v. R. C. Diocese, 229 AD2d 159 [2"ct Dept 1997]). Here, plaintiffs third cause of action seeks damages based upon a theory of general negligence. However, it is clear upon a further reading of the complaint that the negligence 2 [* 3] complained of is that ofKLSDs alleged lack of supervision of Mr. Moore. A claim for negligent supervision arises when an employer places an employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in supervising the employee (id.). An essential element of this cause of action is that the employer knew or should have known of the employee's propensity for the conduct that caused the injury (see generally Bumpus v. New York City Tr. Auth., 47 AD3d 653 [2nd Dept 2008]; Ghaffari v. North Rockland Cent. School Dist., 23 AD3d 342 [2nd Dept 2005]). Here, the affidavit of James Minahan clearly indicates that KLSD had no knowledge of Mr. Moore's curriculum or that he would use smoke bombs during his training. Accordingly, the movant has established that the harm to the injured party was not foreseeable, nor did KLSD know or should have known about the use of smoke bombs during the training. Since defendant has made a prima facie showing of entitlement to judgment as a matter oflaw (see Zuckennan v. City ofNew York. 49 NY2d 557 [1980]), plaintiff must show that genuine triable issues of material fact exist in order to defeat the motion (id.). In opposition, plaintiff alleges that KLSD was negligent in that it gave permission to Mr. Moore to use its property to conduct training without ascertaining what he intended to do and if the activity could present a risk of harm to others. The allegation by plaintiff that Mr. Minahan's failure to seek additional information which may have prevented KLSD from allowing Mr. Moore to use the premises, may have prevented the use of smoke bombs during the training and may have been unreasonable, amounts to nothing more than mere conjecture and speculation which is insufficient to raise an issue of act fact (see generally Zuckerman v. City ofNew York, 49 NY2d 557 [1980]; Fotiatis v. Cambridge HaU Tenants C01p., 70 AD3d 631 [2 11d Dept 2010]). Here, it is clear from the evidence submitted that KLSD had no knowledge that Mr. Moore was intending to use smoke bombs in his training, moreover, even if that knowledge was acquired, plaintiff fails to establish that an injury would be foreseeable if smoke bombs were used. Additionally, plaintiff proffers no evidence that there were any prior complaints of any improper conduct or training by Mr. Moore, which would have placed KLSD on notice of a potential for repetition of improper conduct. Based upon the foregoing, defendant KLSD's motion for summary judgemnt is granted and plaintiffs complaint is dismissed as to defendant KLSD. 3 [* 4] q Dated: September I ,2012 vVhite Plains, New York .~- Hogan & Rossi Attorneys for Plaintiff 1441 Route 22, Suite 204B Brewster, New York 10509 Barry, McTiernan & Moore Attorneys for Defendant KLSD 55 Church Street White Plains, New York 10601 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
