Opinion
107 SSM 11.
Decided May 11, 2004.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered April 14, 2003. The Appellate Division affirmed an order of the Supreme Court, Kings County (Joseph F. Bruno, J.), which had, among other things, granted defendant's motion for summary judgment dismissing the complaint.
Anglero v. New York City Bd. of Educ., 304 AD2d 596, modified.
Profeta Eisenstein, New York City ( Fred R. Profeta, Jr., of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York City ( Grace Goodman and Larry A. Sonnenshein of counsel), for respondent.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be modified, without costs, by denying defendant's motion for summary judgment and, as so modified, affirmed.
Although the Appellate Division correctly determined that defendant could not have anticipated the first attack on decedent, we conclude that plaintiff raised a triable issue of fact as to whether defendant received notice of that attack when it allegedly occurred in the presence of school employees and on school grounds. In support of her cross motion for summary judgment, plaintiff submitted the affidavit of an eyewitness who alleges that she observed the victim being assaulted on school premises by a group of approximately 10 fellow students, one with a baseball bat. The witness stated that several teachers and a safety officer, who were supervising the dismissal of students, were present at the assault but did nothing to intervene, even after the witness yelled at the safety officer to do something to protect the victim and the victim screamed for help.
In light of these allegations by an eyewitness, a jury may find that the safety officer or the teachers heard the call for help by the witness but stood by and did nothing to stop the first assault on decedent and that their intervention might have averted the second assault, which occurred off the school grounds a short time later. Plaintiff's submission therefore raises a question of fact sufficient to withstand summary judgment. As such, the motion and cross motion for summary judgment should be denied.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order modified, etc.