Bazelow v Pine Bush Cent. School Dist.

[*1] Bazelow v Pine Bush Cent. School Dist. 2007 NY Slip Op 51395(U) [16 Misc 3d 1112(A)] Decided on July 6, 2007 Supreme Court, Orange County Alfieri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 1, 2007; it will not be published in the printed Official Reports.

Decided on July 6, 2007
Supreme Court, Orange County

Joshua Bazelow, an infant by his Mother and Natural Guardian, Joann Bazelow, and Joann Bazelow, Individually, Plaintiffs,

against

Pine Bush Central School District, Deborah S. Good, George Horvath, and First Student, Inc., Defendants.



3617/2005



GREENWALD LAW OFFICES

Attorneys for Plaintiffs

JOSHUA BAZELOW and JOANN BAZELOW

99 Brookside Avenue

Chester, New York 10918

MALAPRO & PRISCO, L.L.P.

Attorneys for Defendants

GEORGE HORVATH AND FIRST STUDENT, INC.

925 Madison Avenue

New York, New York 10017

O'CONNOR, McGUINESS, CONTE, DOYLE & OLESON

Attorneys for Defendant

PINE BUSH CENTRAL SCHOOL DISTRICT

One Barker Avenue, Suite 675

White Plains, New York 10601-1517

BOEGGEMAN, GEORGE, HODGES AND CORDE, P.C.

Attorneys for Defendant

DEBORAH S. GOOD

11 Martine Avenue

White Plains, New York 10606

Victor J. Alfieri, J.

The above-entitled matter, having come before this Court on two separate Motions for Summary Judgment, the first filed by defendants George Horvath and First Student, Inc. (hereinafter referred to as Summary Judgment Motion I), and the second filed by defendant Pine Bush Central School District (hereinafter referred to as Summary Judgment Motion II), and having reviewed the following papers submitted in regard to Summary Judgment Motion I, numbered 1 through 5, the exhibits attached thereto, and respective arguments of counsel set forth therein:

Notice of Motion by defendants Horvath and First Student, Inc., dated February 6, 20071

Affirmation in Support2

Memorandum of Law in Support3

Affirmation in Opposition by plaintiffs, dated February 13, 20074

Reply Affirmation by movant, defendant Horvath and First Student, Inc., to opposition by

Plaintiffs, dated March 26, 20075

and having reviewed the following papers submitted in regard to Summary Judgment Motion II, numbered 1 through 8, the exhibits attached thereto, and respective arguments of counsel set forth therein:

Notice of Motion by defendant Pine Bush School District, dated February 20, 20071

Affidavit in Support2 [*2]

Memorandum of Law in Support3

Affirmation in Opposition by defendant Deborah S. Good, dated April 5, 20074

Affirmation in Opposition by plaintiffs, dated March 5, 20075

Memorandum of Law in Opposition by plaintiffs, dated March 6, 20076

Reply Affirmation in Opposition to defendant Good, by plaintiffs, dated April 10, 20077

Reply Affirmation by movant, defendant Pine Bush School, in response to opposition by

defendants Horvath, First Students, Inc.8

this Court determines the respective motions as follows:

Background

Plaintiffs commenced the within personal injury action with the filing of a Notice of Claim on or about January 25, 2005, and Summons and Complaint on or about June 2, 2005, alleging negligence against the defendants as a result of an incident wherein a student, the infant plaintiff, was injured when he was struck by a motor vehicle as he was crossing the street after being dismissed from school where he had attended an after-school athletic program. Plaintiffs' complaint alleges, inter alia, a cause of action arising out of the negligence of defendant Pine Bush School District in allowing the infant claimant to cross a public highway, without the benefit of a school crossing guard or other supervising adult, and further alleges, inter alia, a cause of action against defendants, school bus driver George Horvath,and his employer school bus company First Student, Inc., arising out of the negligence of the defendants in the school bus driver having waived the infant plaintiff across the public highway where he was struck by a motor vehicle driven by defendant Deborah S. Good.

Now, by motion dated February 6, 2007, defendants George Horvath and First Student, Inc., move for summary judgement, and, by motion dated February 20, 2007, defendant Pine Bush Central School District, moves for summary judgement. Plaintiffs oppose the respective motions arguing that there are triable issues of fact to be decided by a jury.

The Applicable Law

CPLR § 3212(b), provides, in pertinent part, that a motion for summary judgment "shall be granted, if upon all thepapers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." CPLR §3212(b).

It is well-settled that "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue." Nidds v. Procidano, 95 AD2d 912 (3d Dept. 1983). [*3]

Discussion

SUMMARY JUDGMENT MOTION I

In the instant matter, this Court finds that the defendants George Horvath and First Student, Inc. have not established, prima facie, their entitlement to judgement as a matter of law. See, Bowers v. City of New York, 294 AD2d 526,(2d Dept. 2002) As such, the burden does not shift to the plaintiffs to establish that a triable issue of fact exists.

Moreover, here plaintiffs, in their opposition papers, clearly raise triable issues of fact, including but not limited to, whether there were acts or omissions on the part of defendants Horvath and First Student, Inc. that resulted in, or contributed to, the physical injuries sustained by the infant plaintiff.

In Thrane v. Haney, 264 AD2d 926 (3d Dept. 1999), a six year old infant was injured while attempting to cross a street at a point where there was no cross-walk. Plaintiff brought an action to recover damages for the injuries sustained by the infant child, alleging that defendant, the driver of a motor vehicle that was stopped in one lane of traffic, was negligent in making hand motions which induced the child to cross the street when it was not safe to do so. The Court, in affirming the denial of the motion for summary judgment, found the evidence inferred that defendant may have voluntarily assumed the duty to direct the child and thus defendant may be held liable if he failed to exercise reasonable care and if his conduct was a proximate cause of the child's injuries. Id., at 927

In the instant case, there are clearly triable issues of fact raised as to whether defendants George Horvath and First Student, Inc. had or created, by act or omission, a duty of care to the infant plaintiff and whether any act or omission was a proximate cause of the physical injury sustained by the infant plaintiff.

Discussion

SUMMARY JUDGMENT MOTION II

In an action against a defendant school alleging damages arising from, inter alia, negligent supervision, the question of whether plaintiff has raised a triable issue of fact rests on whether the infant plaintiff was still within the school's custody and control and, therefore, owed the duty of adequate supervision. Reed v. Pawling Central School District,

245 AD2d 281 (2d Dept. 1997).

The Courts have consistently held that "[b]efore a defendant may be held liable for negligence, it must be shown that the defendant owed a duty to plaintiff". Ramo v. Serrano, 301 AD2d 640, 641 (2d Dept. 2003). "Generally, a school's duty to adequately supervise a student ends when it relinquishes physical custody and control of the student." Bowers v. City of New York, 294 AD2d 526 (2d Dept. 2002).

The duty owed by a school to its students stems from its [*4]

physical custody over them. "[B]y taking custody of the child, the school has deprived [the child] of the protection of his parents or guardian. Therefore, the actor who takes custody of a child is properly required to give him the protection which the custody, or the manner in which it is taken, has deprived him'."Pratt v. Robinson, 39 NY2d 554, 560 (1976), citing, Restatement

of Torts 2d § 320, comment b. "When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases."

Pratt, supra, at 560.

A school's duty exists only when a student is in its care and custody during school hours, Norton v.Canandaigua City School District, 208 AD2d 282 (4th Dept. 1995), or if a duty is imposed by specific statutory enactment, Ramo v. Serrano, 301 AD2d 640, 641 (2d Dept. 2003). "The school's duty is coextensive with and concomitant to its physical custody of and control over the child." Pratt v. Robinson, 39 NY2d 554, 560 (1976).

In Silver v. Cooper, 199 AD2d 255 (2d Dept. 1993), a student was struck by a car while crossing a county road while walking to school. The Appellate Division found that the Supreme Court had properly granted the school district's motion for summary judgment on the grounds "[t]he School District did not have custody and control over the infant plaintiff, since he was walking to school and was not under its control". Id., at 256.

Although the courts have consistently held that "[s]chools are under a duty to adequately supervise the 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(1994); see also, Pratt, supra, it is equally well settled that a school district is not an insurer of the safety of its students. Norton v. Canandaigua City School District,208 AD2d 282 (4th Dept. 1995).

In Nasser v. Nakhbo, 13 Misc 3d 1223A (Supreme Court, Kings County 2006), an infant plaintiff was injured when he was struck by a motor vehicle after being discharged from school into a school yard which opened onto a side street with no cross-walk or crossing guard in that area of the block. Plaintiff conceded "...that the duty of care toward a student generally ends when custody of the student is relinquished", but argued, "when the student is released into a potentially hazardous situation...the duty continues". Id., at 1223A.

In Nasser, the Court rejected the argument that the release of the child from school into the school yard that opened to a street, a potentially hazardous situation, continued the duty to the student. The Court found that plaintiff had failed to raise a triable issue of fact. In granting the motion for summary judgment, the Court reasoned, "[i]t is well settled that a school's duty to protect the child from the negligence of a third party is coextensive with, and concomitant to, its physical custody and control over the child (citation omitted). 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 protection, the school's custodial duty also ceases (citation omitted). As a result, when a student is injured off school premises, generally the school cannot [*5]be held liable for the breach of a duty that extends only to the boundaries of school property." Id., at 1223A.

In the case at bar, the infant plaintiff, was a student at the Crispell Middle School in the Pine Bush Central School District. On January 20, 2005, after attending an after-school intramural athletic program, as part of the extended period day, the infant plaintiff left school and was crossing Route 302, a public highway, to meet a friend's parent in the Kelly Avenue faculty parking lot, located across Route 302 from the school building, when he was struck by a motor vehicle and suffered serious physical injury. There are two cross-walks utilized by the school to cross Route 302, one is at Borden Avenue, and is specifically designated by the school as a pick-up location. Crossing guards are only provided at the cross-walks during the regular day dismissal.[FN1] The infant plaintiff was crossing Route 302 after being dismissed from school, to the Kelly Avenue faculty parking lot at a location not designated or authorized by the school for student pick-up, that did not have a cross-walk, when he was injured.

In affirming the lower court's granting of a motion on behalf of the school in Bowers v. City of New York, 294 AD2d 526,(2d Dept. 2002), the Appellate Division found "[t]he respondent's established their prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff was safely dismissed from the school premises approximately 15 minutes before the accident, which occurred beyond the boundaries of school property. In opposition, the plaintiffs failed to present sufficient evidence to raise any triable issue of fact."

In the instant matter, this Court finds defendant Pine Bush Central School District established, prima facie, an entitlement to judgment as a matter of law. See, Bowers, id. The infant plaintiff had been dismissed from school, was clearly outside the school and was in the process of crossing the street to meet a friend's parent to get a ride when the injury occurred. There was therefore, a clear cessation of the school's custody prior to the child's injury.

Here, as in Nasser, supra, 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.

Conclusion

Based on the foregoing, it is, hereby

ORDERED, that defendants George Harvath and First Student, Inc., Motion for Summary Judgment is denied; and, it is, hereby further

ORDERED, that defendant Pine Bush Central School District's [*6]

Motion for Summary Judgment is granted.

This Decision shall constitute the Order of this Court.

E N T E R

Dated: New City, New York

July 6, 2007

________________________________

Honorable Victor J. Alfieri, Jr.

Acting Supreme Court Justice Footnotes

Footnote 1: Given that the instant plaintiff crossed the public highway at a location not designated or authorized by the school as a cross-walk, this Court finds no issue of fact regarding the provision, or lack thereof of a crossing guard for late day dismissal.