Opinion
March 17, 1995
Appeal from the Supreme Court, Niagara County, Mintz, J.
Present — Denman, P.J., Lawton, Wesley, Balio and Bohem, JJ.
Order unanimously affirmed without costs. Memorandum: Plaintiff appeals from an order that granted defendant's motion for summary judgment dismissing the complaint. Plaintiff sought damages for injuries his daughter received when a fellow student struck her face during a brief fight while students were boarding a bus at her school.
The fight between plaintiff's daughter and the student was a brief, spontaneous occurrence; there was no opportunity for defendant's bus driver to intervene on the daughter's behalf (see, Hanley v. Hornbeck, 127 A.D.2d 905, 906-907; cf., Mirand v City of New York, 190 A.D.2d 282, affd 84 N.Y.2d 44; Blair v Board of Educ., 86 A.D.2d 933). Although the school district had previously disciplined that student for fighting on the bus, those incidents had occurred over four months prior to this incident. Plaintiff's daughter had never reported any difficulties with the student, nor is there any indication in the record that the two had previously been involved in a fight (see, Mirand v. City of New York, supra; James v. Gloversville Enlarged School Dist., 155 A.D.2d 811, 813; see also, Hanley v Hornbeck, supra, at 907). Plaintiff has not identified any rules, procedures or security plans of the school district that were violated by the bus driver (see, Mirand v. City of New York, supra, at 289-291; James v. Gloversville Enlarged School Dist., supra, at 813; Lauricella v. Board of Educ., 52 A.D.2d 710, 711). Furthermore, "[t]he courts of this State have consistently held that liability for injury caused by a fight cannot be predicated upon supervisory negligence if the plaintiff voluntarily entered into the fight [citations omitted]" (Borelli v. Board of Educ., 156 A.D.2d 903, 904).