Nasser v Nakhbo
Annotate this CaseDecided on September 13, 2006
Supreme Court, Kings County
Mubin Nasser, an infant by his parent and legal guardian, Kamal A. Nasser, Plaintiffs,
against
Mark Nakhbo and The City Of New York, Defendants.
32100/04
Sylvia O. Hinds-Radix, J.
Upon the foregoing papers, the cross motion by defendant City of New York (the City) for an order dismissing the complaint against it pursuant to CPLR 3211 (a) (7) or, alternatively, granting it summary judgment pursuant to CPLR 3212 is granted on the issue of negligent supervision.[FN1]
On October 15, 2003, Mubin Nasser, an infant, was allegedly injured when he was struck by an automobile which was owned and operated by Mark Nakhbo (Nakhbo). Thereafter, plaintiff Kamal Nasser, the infant's father, commenced this personal injury action on his behalf against Nakhbo and the City. As far as the City is concerned, plaintiff alleges that the infant was released from the public school which he attends "with no supervision from the employees of the New York City Department of Education."
In its cross motion, the City asserts that it did not owe a duty of care to the infant, nor were the subject premises, a public school, and the school's employees under its control. This court disagrees. Further, the City maintains that, since the infant was injured off school premises, its duty of care (or, more accurately, the Board of Education's duty of care) to the infant had ceased.
In opposition to the cross motion, plaintiff contends that since 2002 "the authority once belonging to the Board of Education [now belongs] to the City's school chancellor" [*2]and, therefore, the City is a proper party to this action. This court agrees. Plaintiff seeks to hold the City liable because the infant was discharged into a school yard and "where the yard opens on the side street, there is no cross-walk and no school crossing guard in that area of the block." Plaintiff also notes that the City has failed to produce a witness for a deposition or "to provide any document discovery in this case" and, therefore, its cross motion is premature. While plaintiff concedes that the duty of care toward a student generally ends when custody of the student is relinquished, he points out that, when the student is released into a potentially hazardous situation (as here), "the duty continues." Plaintiff's arguments are adopted by Nakhbo in his opposition to the cross motion.
In reply, the City maintains that the Department of Education is a legally independent corporate body, not a city agency, and, therefore, "plaintiff has not sued the appropriate legal party." Whether or not it is a proper party to the action, the City repeats its contention that it may not be held liable for the infant's injuries which occurred outside the school's premises and after dismissal.
Much time and argument in this matter were spent by both sides on discussion as to the distinction between the City and the Board of Education. It is for this reason that the court addresses that issue first.
Recent changes in the structure of the New York City Board of Education and the control by the Mayor's office over the position of the Chancellor have eliminated the distinction between the City and the Board of Education. The Board of Education as an entity has not even received mention in the legislation that provided for its elimination and hence the Board of Education does continue "for all purposes, [to] be the government or public employer of all persons appointed or assigned by the city, board or the community districts[.]" (Education Law § 2590-g [2]). The actions of the Mayor demonstrate and changes in the statutory scheme demonstrate for all intent and purposes that the Board of Education does not continue to exist as a separate and distinct legal entity from the City. As a result, the City cannot absolve itself of liability for torts committed by the Board, such as the negligent supervision of its students. Although Perez ex rel. Torres v City of New York (9 Misc 3d 934 [2005]), which is cited by plaintiff, is not binding on this court, this court finds that decision persuasive and agrees with plaintiff's argument as to the position taken by the City. This court therefore finds the City of New York to be a proper party to the action.
This court must now address the other issue raised in this case. Whether the claim against the City for negligent supervision should be dismissed as a matter of law. This court finds that it must.
Even if the City were a proper party to this action, plaintiff's claims against it would be dismissed. It is well settled that a school's duty to protect a child from the negligence of a third party is coextensive with, and concomitant to, its physical custody and control over the child (see Chalen v Glen Cove School District, 29 AD3d 508 [2006]). When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is free to reassume control over the child's [*3]protection, the school's custodial duty also ceases (see Pratt v Robinson, 39 NY2d 554 [1976]). As a result, when a student is injured off school premises, generally the school cannot be held liable for the breach of a duty that extends only to the boundaries of school property (see Tarnaras v Farmingdale School Dist., 264 AD2d 291 [1999]).
In response to the City's prima facie showing of entitlement to judgment as a matter of law, plaintiff has failed to raise a triable issue of fact as to whether at the time of the accident the infant was still within the custody of the school (see Morning v Riverhead Cent. School Dist., 27 AD3d 435 [2006]). Nevertheless, plaintiff alleges that the City was negligent in releasing the infant from a school yard which "opens right onto the side street." Although a school breaches a duty of care when it "releases a child without further supervision into a foreseeable hazardous setting it had a hand in creating" (Ernest v Red Creek Cent. School Dist., 93 NY2d 664, 672 [1999]), to impose liability on the school, it must have sufficiently specific knowledge of the particular danger (see Mirand v City of New York, 84 NY2d 44 [1994]). Unlike Ernest, which plaintiff cites, the infant's release in the school yard adjacent to a public sidewalk was not foreseeable hazardous, nor was the danger from traffic partly of the school's making.
Further, the testimony of the infant at the statutory 50 (h) hearing clearly demonstrates that not only was he released into the school yard but he was picked up by his sister who had the responsibility to do so on a daily basis. This infant was clearly outside the school when this alleged incident occurred and was crossing the street to get to his home. There was therefore, a cessation, of the school's custody prior to the child's injury. Accordingly, the cross motion by the City of New York is granted and the complaint against it is dismissed. The action is severed and continued against Mark Nakhbo, the remaining defendant, and the Clerk is directed to transfer this action to a non-City Part.
The foregoing constitutes the decision and order of this court.
E N T E R,
J. S. C.
Footnotes
Footnote 1: The main motion by defendant Mark Nakhbo for summary judgment was denied in a separate order dated June 2, 2006.
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