Cummings v S. Country Cent. Sch. Dist.
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Cummings v S. Country Cent. Sch. Dist. 2020 NY Slip Op 30132(U) January 16, 2020 Supreme Court, Suffolk County Docket Number: 15-1047 Judge: Sanford Neil Berland Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] ' ""'"'O•MO•<><• 1 i;c.;.. :;,r " . c0 y I ' : :,, ...... . - · : ( . ~ ~ . ~). INDEX No. 15- 1047 CAL. No. 18-014990T • ' ~]>..~~ Y>v ,,,..~ ·.,. ~:, ~ ~ )~REME COURT ~~~ - STATE OF NEW YORK l.A.S. PART 6 - SUFFOLK COUNTY PQi'tNT: Hon. SANFORD NElL BERLAND Acting Justice of the Supreme Court ---------------------------------------------------------------)( RICKAR DO CUMMINGS, an lnfant bv his Father and Natural Guardian, LESTER LAYNE and LESTER LAYNE. Individually, MOTIONDATE 1-8-19 ADJ. DATE ___6><----'-'18,__ - J:....<.9_ Mot. Seq. # 004 -MD SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO Attorney for Plaintiffs 1140 Franklin Avenue, Suite 200 Garden City. New York 11530 Plaintiffs, DEVITT SPEf ,LMAN BATfERR LLP Attorney for Dctendant South Country Central School District - against - 50 Route 11 1. Suite 314 Smithtown, New York 11 787 SOUTH COUNTRY CENTRAL SCHOOL DISTRICT and RAEK WON R USSELL, Raekwon Russell. PRO SE 526 Meade A venue Bellpo rt, New York 11713 Defendants . ---------------------------------------------------------------)( Upon the following papers numbered I to 73 read on this motion for summary judgment: Notice of Motion and supporting papers 1-43; Answering Affidavits and supporting papers 44-66; and Replying Affidavits and suppm1ing papers 67-73, it is ORDERED that the motion ror s ummary judgment by the defendant South Country School District dismissing the complaint against it is denied. This action was commenced to recover damages, personally and derivatively, fo r personal injuries sustained by infant plainti ff Rickardo Cummings on March 17, 2014. w hen he a llegedly was attacked by a fellow student, defendant Raekwon Russell (Russell), at Bellport High School, the high school of defendant South Count1y School District (School District). The complaint alleges that the School District is liable for infant plaintiff's injuries based on. inter alia, its negligence in supervising the students at the school that day. Russell appeared for a deposition, but has not appeared in the action. [* 2] Cummings v South Country Central School District Index No. 15-104 7 Page 2 The School District now mo\'es for summary judgment dismissing the complaint on the ground that it adequately supervised infonl plaintiff and Russell and was not a cause of infant plaintiffs ' injuries. The School District argues further that Russell's actions were impulsive and unforeseeable. and that the incident could not have prevented by any degree of supervision. Jn support. of the motion, it submits copies of the pleadings, the vcri tied bi II ofparticulars, the transcripts of infant plaintiffs testimony at his Genera.I Municipal § 50-h hearing and at his deposition. the transcript of the deposition testimony of Russel I. and the transcripts of the deposition testimony of several witnesses for the School District. Pl aintiffs oppose tht: motion. arguing that triable issues exist as to whether the school adequately super\'ised infant plaintiff and Russell. Infant plainti ff testified at his General Municipal§ 50-h heru·ing that the incident occurred in a hallway on March 17, 201-L just after school was dismissed for the day. He testifi ed that Russell attacked him from behind as he was heading to his locker. lnfrmt plaintiff testi tied that prior to the incident, Russell had been taking snacks from his locker. and that he told Assistant Principal Alicia Ulberg. one of his kachcrs - Mr. Valentine. and a security guard that Russell was taking snacks from his locker. He also claims he told a security guard named Darrell and Assistant Principal Ulberg that Russell wanted to fight him. and that Russell"s friend told him that Russell wanted to light him . Infant plaintiff testified at his examination before trial that on March 17. 2014, Russell attacked him physically in the hallway on the second floor of the Bellport High School. I le testified that he left his last class for the day and was walking towards his locker when he fe lt someone hit him from his left side. He testified that as a result of be ing .struck his head hit a locker. He testified that he turned to his left and realized Russell had hit him and then Russell hit him again. Infant plaintiff testified he lost consc iousness as a result of bl.!ing punched by Russell a second time. He testified that at no point during the incident did he punch or strike Russell. Infant plaintiff further testified that he had a problem with Russell one week before the incident because he was taking snacks out of plaintiffs locker. He testified that he told Assistant Principal Della Rose, head security guard Darrell Simons, and Principal llogan that Russell was taking snacks from his locker and wanted to ··jump"' him. Infant plaintiff testified 1har he rnet with all three school officials at the same time. Russell testified that prior to the date of tbe incident, he threatened a teacher with physical violence at Bellport High School. He also testified that prior to the incident. he cursed out teachers on three or four occasions. He testified that about a week before the incident, a security guard named Darrell Simmons told him to stay away from infant plaintiff. Russell testified that plaintiffs locker was across the hall from his science class. He testified that prior to the incident. Principal Hogan also told him to stay a\·vay from infant plaintiff. Russell testified that he punched infant plaintiff in the face and as a result his head hit a door. He testified that he punched infant plaintiff twice more, with one of the punches hi tting infant plaintiffs eye. He testified that the incident occurred across from his science classroom and that there were no securi ty guards in the area. Russell testified that he got out of his science class, which was his last class of the day. and then the incident wit h i.nfant plaintiff happened. He testified that there wer..: six classrot1ms on the second lloor. and that he did not scr.:: any teachers outside of their classrooms at dismissal that dav. Russell also testified that he die.I not see :my security guards on the second floor before or after the i1;cident. He testified that after he punched infant plaintiff [* 3] Cummings v South Counl1") Central School District Index No. 15-1047 Page 3 several times. infant plaintiff ran away. I re testified that after the incident. he walked out of the st:hool. and that no school staff attempted to stop him. Paul Ponticri testified ar his examination before trial that he \\as an assistant prim:ipal at the Bellport 1ligh School on the date the incident. He testified that before the inddent 0 11 March 17. 20 14. he was aware that there was an issue between plaintiff and Russell. Pontieri testified that at approximately 7:30 a.m. on March 17. 2014. Assistant Principal Ulberg brought infant plaintiff and Russell to his orrit:c. 1-k testified that earfo~r that morning there had been a verbal <.:onfrontation hdwcen infant plaint iff und Russel l. because Russell had been t:.1king snacks out of infant plaintiffs locki..:r. Pontieri testifieu that at the meeting Russell became angry. He testified that Assistant Prirn:ipal Ulbc.:rg expressed concern about the situation between infant plaintiff and Russell. because the two boys were in the hallway hollering at each other and Russell was quite large in stature. Darre ll Simmons tt'stified al his examination before trial that he has been :.i security guard al Bellport High School for approximately eight years. I le testified that prior to March 17. 201 -t an assistant principal came to him and expressed that there was an issue between infant plaintiff and Russell. Simmons testified that as a result of this information he told the eleven other security guards that there was an issue between the two boys and to keep an eye out for tht:m. Simmons then tcsti lied that on March 17. 20 14, before the incident. he had a conversation with Pontieri anu Principal Hogan that infant plainti IT and Russell ··just had issues with each other. had worus with each othcO'r. .. Simmons testified that Hogan and Pontieri stated to him that "they were concerned that there was going to be a fight between [the] two [boys]. " He fu11her testified that I logan and Pontieri told him to ·'make sure [the] two lboysl stay away from each other." In addition. he testified that neither l logan nor Pomicri discussed a plan to keep the boys separated from each other. As a result of this meeting. Simmons testified he went to the other eleven security guards individually and told them to .. kecr [their] eye<; and ears open for Rickardo and Russell,'. and to ··keep those two guys away from each other:· He al so testified that he gave the security guards the boys· classroom schedule. Simmons tcstilicd that he did not discuss with the otht:r security guards a plan for escorting either of the boys from the !->dwol properly after dismissal that day. Alicia Ulberg testified that she has been employed by the School District us an assistant prim:ipal since 2007. Ulberg testified that she was fa miliar with both infant pl aint iff and Russell prior to the date of the incident. but was more familiar with in font plainti ff because he was one of her assigned studl.!nts. She testified that infant plaintiff only came to her one time complaining that Russell was stealing his snacks from his locker. the morning of the March 17. 2014 incident. Ulberg testified that she contacted Assistant Principal Ponticri , who was responsible for !{usscll, and as a result a meeting was held between infant plaintiff. Russe ll and the two assistant principals. She dcni~d kJ10wing nf prior issues involving infant plaintiff and Russell. Ulberg conceded in her deposition that prior 10 March 17. 2014 . Russell had ele\'en do<.:umentec.I prior incidents of improper behavior. including tWl) violent inciJcnts. The School District hns moved for summary judgment in this matter on t h~ ground that it cannot be found liable for failing properly to supervise the students at the high school. The pmponent or a summar:- judgment motion must make a prima facie shl,wing of entitlement to judgment as a matll:r or [* 4] Cumming. v South Country Central School District Index No. 15- 10-0 Page -t law. tendering !>ufficient eYidc:nce to eliminate any material issue of fact (see Alvarez l" Prospect Hosp.. 68 NY2d 320. 508 NYS2d 923 [ 1986]: Wi11egrad v New York Uuiv. Med. Ctr.. 64 NY2d 851, 487 NYS2d 316 f 1985 j). The burden then shifts to the party opposing th!.! motion which must produce cvidentiary proot' in admissible form suffici ent to require: a trial or the materia l issues or fact (Rebecclri 1• Whitmore. 172 AD2d 600. 568 NYS2d 423 l2d Dept 199 1j: Roth,. Barreto. '.!89 t\D'.!d 557. T:.5 NYS2d 197 [2d Dept 2001]: O'Neill v Towu of Fishkill, 134 AD2d 487. 52 1 NYS2d272 [2d Dept 1987]). Furthermore. the parties· competing interest must be viewed "in a light most favorable to the party opposing the motion"' (Marine Midland Bank, N.A. 1• Dino & A rtie's Automatic Transmission Co .. 168 A02d 610. 563 NYS2d 449 [2d Dept 1990)). A schoo l has a common law duty adequately to supervise its students. as they have physical custody of the students. and stand in for their parents while in attendance ( \'<:'<: Steplre11so11 v Ci~r of New York. 19 NY3 d I 031. 954 NYS2d 782 [2012)). The standard for determini ng whether a school was negligent in executing its super\'isory responsibil ity is whether a parent of ord inary prudence. placeJ in the same situation and armed wi th the same information. would ha,·e pro\'ided greater supervision (\ct<.' Mira ml v City of New York. 84 NY2d 44. 6 I 4 NYS2d 372 [I Q94] ). ··Schools have a duty to adequately supervise the students in their charge and may be held liable for foreseeable injuries proximately related to the absem:c of adequate super<ision .. ( Timothy Mc. v Beacon City Sclr. Dist.. 127 AD3d 826. 7 NYS3d 34812d Dept 20151: see Mirand ,_. Ci~y of New York. supra). Schools arc not. however. the insurers of their students· sa tcty. and there is no duty to provide constant supervision . as the level and degree thereof is measured b~· the reasonableness thereof unda the cin.:um-;tances (set' Jla cNiven v Ea."it Hampton V11io11 Free School Dist.. 62 AD3d 760. 878 NYS2d 449 (2d Dept 2009j: Legette 1· Ci~I' of New York , 38 J\D3d 853. 832 NYS2d 669 [2d Dept 20071). ··111 determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by fellow students. it must be cstablishcc.l that school authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury: that is. the third par1y acts could have been rcason.:ibly anticipated.. (iUir1111d" City of New }'ork. supra al 49: see also GtH/011 v East Rmnapu Ce11t. Sell. Dist. , 165 AD3d 761. 85 NYS3d 525 j 2d Dept ::w 18): RT i • Three Vi/Inge Cent. S<:h. Dist. , 153 AD3d 747. 59 NYS3d 483 [2d Dept 2017J). Sufficit:ntly specific knowledge or notice generally requires actual or constructive notice to the school of prior similar conduct (see Calabrese,. Baldwin Uniou Free S c/tool Dist., 29~ AD2d 388. 7-t I NYS2d 560 l'.!d Dept 2002j). However. "an injury caused by impulsive. unanticipated act of a fol low student will not ordi narily give rise 10 a linding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect agui nst the injury causing act'· ( Com ·ey 1• Ci~)' of Hye School Dist._ 271 A D'.!d 15-L 159. 710 NYS2d 641 12d Dept 2000]). "Where an incident occurs in so short a span of time that even the most intense supervision could not have prevented it. lack of supervision is not the proximate cause of the injury and sunuirnl)' judgment in favor of the ;,;chool ddendants is warranted .. ( Com·ey i· Rye School Dist. , supra at 160. 710 NYS2d 646). r:urthermore. plaintiffs must demonstrate not only that the school was negligent in its supervision. hut also that such lack of supef\'ision was a proximate cause of the injury (see 1\Jiraml 1• City of Nt!w York. supra: see also Guerriero,. Se11mlwka Cent. lligh Sch. Dist. , 150 /\D:ld 831. 55 [* 5] Cummings v South Country Central School District Index No. 15-l 04 7 Page 5 NYS3d 85 [2d Dept 2017]; Lopez v Freeport U11io11 Free School Dist.. 288 AD2d 355. 734 NYS2d 97 [2d Dept 200 I]; Schleck er v Co1111etquot Cent. Sc/tool Dist. of Islip. 150 AD2d 548. 541 NYS2d 127 [2d Dept 1989]). Whether such supervision was adequate and. if inadequate. whether it was a proximate cause of the injury, is generally a question for the trier of fact to resolve (see SM v Plainedge Union Free Sch. Dist•• 162 AD3d 814, 79 NYS3d 2 15 [2d Dept 2018]: DiGiacomo v Town of Babylon. 124 AD3d 828. 2 NYS3d 548 [2d Dept 2015]). Here. the School District fai led to demonstrate. prima facic, that Russell's violent assault against the infant plaintiff was not foreseeable or that its allegedly negligent supervision was not a proximate cause of infant plaintiff's injuries (see Jt.tlirand v Ci(l' of New York. supra; see also Guerriero v Sew11/rnka Cent. Higlt S eit. Dist., supra). That is, with respect to negligence. the School District failed to make a prima fac ie showing that it Jacked sufficient knowledge of the extent of Russell's dangerous propensities - notwithstanding his prior violent altercations with another student and a teacher - and, therefore. that Russell's assault on infant plaintiff in the circumstances that existed was not foreseeable (see Gasto11 v East Ramapo Cent. Sch. Dist., supra; RT v Tltree Village Cent. Seit. Dist.. supra), while with respect to proximate cause. it failed to to make a prima facie showing that the assault occurred so quickly and spontaneously "that even the most intense supervision could not have prevented iC (Gasto11 v East Ramapo Cent. Seit. Dist .. supra at 763, 85 NYS3d at 528). Notably, there was testimony from Simmons that Hogan instructed him to ..make sure [the) two [boys) stay away from each other." In addition. Simmons testified that he informed the other security guards of Hogan's concerns and instructed them to keep the boys away from each other. The School District. however. failed lo eliminate triable issues of fact as to what further steps. if any, the School District took to implement Principal Hogan's plan and whether its supervision was adequate or if a heightened supervision would have prevented the assault (see DiGiacomo v Town of Bahy/011. supra). Accordi ngly. the motion by the School District for summary judgment dism issing the complaint against it is denied. The foregoing constitutes the decision and order of the court. HON. SANFORD NEIL )J RLAND, A.J.S.C. FINAL DISPOSITION XX NON-FINAL DISPOSIT ION
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