McMahon v City of New York

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[*1] McMahon v City of New York 2012 NY Slip Op 51568(U) Decided on August 14, 2012 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 14, 2012
Supreme Court, Richmond County

Richard Donald McMahon, an Infant, by his Parent and Natural Guardian RICHARD McMAHON, and RICHARD McMAHON, Individually, Plaintiffs,




Thomas P. Aliotta, J.

Upon the foregoing papers, the motion of defendants the City of New York (hereinafter the "City") and its Department/Board of Education for an order dismissing the complaint pursuant to CPLR 3211(a)(7) or, in the alternative, summary judgment pursuant to CPLR 3212, is granted as to the former, and is otherwise denied.

This matter arises out of the alleged sexual assault of a fourth grade student, the infant plaintiff (hereinafter plaintiff), in the bathroom and on the playground of P.S. 13, located at 131 Vermont Avenue, Staten Island, New York. In the complaint, plaintiff claims that he was sexually assaulted at the hands of an older student on 20 + occasions between September and October of 2006.[FN1] Plaintiff further claims that another fourth grade student acted as "lookout" during these assaults (see October 8, 2006 statement of Marcelo Farciert, City's Exhibit H). According to the latter, "N [the alleged assailant] told me to watch out for the school aide and don't come back there. And to be a lookout. I was in the middle of the school yard [at the time]" (id.). It appears [*2]undisputed that once plaintiff's parents learned of their son's allegations, they notified the school which, in turn, notified the police. No criminal charges were brought against the fifth grade assailant, although he was placed on "Principal's Suspension" for five days (see City's Exhibit M; [April 13, 2010 Deposition of Principal Constance Montijo] pp 96-98).

In moving for summary judgment and/or dismissal of the complaint, the City argues that it is not a proper party to this action inasmuch as it is a separate and distinct entity from the co-defendant Department/Board of Education (hereinafter the "Board"). City also argues that the action must be dismissed as against the Board, since it breached no duty of care to plaintiff and, even if it had, no evidence exists that its negligence was the proximate cause of plaintiff's purported injuries. Lastly, the City asks for dismissal of the derivative claim brought by plaintiff's father.

With respect to the City's motion for summary judgment, it correctly maintains that the Board is a separate entity charged with the management, control and maintenance of its public schools. Plaintiffs have not opposed this branch of defendants' motion. In addition, it appears to the satisfaction of this Court that the City may not be held liable for torts allegedly committed by the Board or its employees arising out of its operation of the schools. Hence, the complaint as against the City is severed and dismissed (see Perez v. City of NY, 41 AD3d 378).

In order to prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of judgment in its favor as a matter of law (see Alverez v. Prospect Hosp, 68 NY2d 320; GTF Mtkg, v. Colonial Aluminum Sales, 66 NY2d 965). Since issue finding rather than issue determination is the key to this procedure and the remedy itself is inherently "drastic" (see Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 404), the rule has developed that the evidence presented on such a motion must be construed in the light most favorable to the party opposing summary judgment, here plaintiff (see Weiss v. Garfield, 21 AD2d 156, 158).

It is well settled that schools are "under a duty to adequately supervise the students in their charge and...will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v. City of New York, 84 NY2d 44, 49). In general, it is a school's duty to supervise a student with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances (see id., Lawes v. Board of Educ. of City of NY, 16 NY2d 302; Ohman v. Board of Education, 300 NY 306). Accordingly, liability will often depend on plaintiff's ability to show that the school authorities had sufficiently specific knowledge or notice of the type of dangerous conduct which caused the injury, i.e., that the school could reasonably have anticipated the offending behavior (Mirand v. City of New York, 84 NY2d at 49). Thus, injuries caused by an unanticipated or impulsive act of a fellow student generally will not give rise to a finding of negligence absent proof of such prior conduct as would have put a reasonable person on notice to protect against the act which caused the injury (id.; see Janukajtis v. Fallon, 284 AD2d 428).

Nevertheless, it has been held that even in the absence of prior notice of the specific injury-causing conduct, a school may be held liable for injuries sustained as a reasonably foreseeable consequence of, e.g., its own actions, such as the failure to provide adequate supervision (see Bell v. Board of Educ. of City of NY, 90 NY2d 944; Murray v. Research Found. of State Univ. of NY, 283 AD2d 995, 997, lv denied 96 NY2d 719; Garcia v. City of New York, 222 AD2d 192, 196, lv denied 89 NY2d 808; Merkley v. Palmyra-Macedon Cent. School Dist., 130 AD2d 937). Thus, while sometimes found, as a matter of law, to sever the causal connection between the school's [*3]negligence and plaintiff's injury, where "[t]he criminal intervention of third parties may...[represent] a reasonably foreseeable' consequence of circumstances created by [the Board]" (Bell v. Board of Educ. of City of NY, 90 NY2d at 946 a triable issue of fact can be found to exist (id. at 947).

In this case, "[a] rational jury...could...determine[ ]...that the foreseeable result of the danger created by defendant's alleged lack of supervision was [an] injury such as occurred here...[and]...could...reasonably conclude[ ] that the very purpose supervision [is] to shield vulnerable school children from such acts of violence" (id. at 946-947). Consequently, circumstances have been found to exist in which an absence of supervision, without any more specific notice, is so egregious as to give rise to liability (see Doe v. Fulton School Dist., 35 AD3d 1194; Doe v. Board of Educ. of Morris Cent. School, 9 AD3d 588). Pertinently, both of the above-cited cases involved alleged sexual assaults upon students in which the ensuing tort actions against the respective school districts were premised upon allegations of inadequate supervision, notwithstanding the absence of notice of prior similar conduct (see Doe v. Fulton School Dist., 35 AD3d at 1195; Doe v. Board of Educ. of Morris Cent. School, 9 AD3d at 591).Here, the Court finds that there are triable issues of fact as to whether, e.g., the manner and extent of supervision in place at the time of the alleged incidents was sufficient for its intended purpose, i.e., to provide students with a reasonably safe place to learn, and causally related to the injuries allegedly sustained. In this particular, a careful review of the deposition testimony of Principal Montijo is insufficient to resolve these issues as a matter of law (see Bell v. Board of Educ. of City of NY, 90 NY2d at 946; cf. Mirand v. City of New York, 84 NY2d at 50-51), as it contains numerous inconsistencies and a paucity of detail concerning the duties and responsibilities of the various teachers and school aides assigned to maintain order at P.S. 13. Also evident are questions of fact as to whether a reasonably prudent parent of children of such tender years would allow them the same degree of freedom in the hallways and bathrooms between or during classes as did this school administration, or would insist upon a greater degree of, e.g., monitoring, when pupils were screened from direct observation by teachers and/or school aides, as during bathroom visits, or present in greater concentrations in areas where natural or artificial obstructions could hinder supervision, as on the playground.

In this case, the questions of reasonable foreseeability and proximate cause cannot be decided as a matter of law.

By providing this Court with neither authority nor argument in support of their request for dismissal of the derivative claim of plaintiff's father, the moving defendants have seemingly abandoned this aspect of their motion.

Accordingly, it is

ORDERED, that the motion is granted solely as to defendant The City of New York, and it is further

ORDERED, that the complaint as to said defendant is severed and dismissed; and it is further

ORDERED, that the balance of the motion is denied; and it is further

ORDERED, that the Clerk enter judgment and mark his records accordingly.

E N T E R,


______________________________ [*4]


Dated: AUGUST 14, 2012

gl Footnotes

Footnote 1:The alleged assailant's date of birth does not appear in these papers, but according to plaintiff, his assailant had been retained one or more times in the school's fifth grade special education program.