Opinion
April 11, 1988
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that the cross appeal is dismissed as abandoned (see, 22 NYCRR 670.20 [d], [f]); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs, payable by the plaintiffs.
On February 25, 1982, the infant plaintiff, a six-year-old kindergarten student, was waiting for the school bus due to arrive at 8:51 A.M. at his pickup location. Another bus for grades 1 through 6 was scheduled to arrive at 8:54 A.M. at the same location. The infant plaintiff and 10 1/2-year-old Adam Kerry engaged in a snowball fight which then escalated into a rock fight. Kerry hit the infant plaintiff in the face with a rock characterized as "a piece of street" causing facial injuries requiring surgery.
As the court correctly noted, there was no breach of the duty by the school district to select a reasonably safe location for the school bus stop (see, Pratt v. Robinson, 39 N.Y.2d 554, 559-560; Gleich v. Volpe, 32 N.Y.2d 517, 520-523). In addition, we find no duty owed by the school district to prevent older students from mingling with younger students at the same bus stop at approximately the same time prior to boarding, as the students were not yet in the physical custody or control of the school district (see, Pratt v. Robinson, supra, at 559-560). Moreover, the conduct by the school district, as a matter of law, was not a proximate cause of this occurrence (see, e.g., Francois v Commercial Hotel, 131 A.D.2d 540, 542, lv denied 70 N.Y.2d 606; Covelli v. Long Is. Light. Co., 133 A.D.2d 605, lv denied 70 N.Y.2d 614). The record reveals that the intervening unforeseeable act of the defendant Kerry was the sole proximate cause of this accident (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314-316, rearg denied 52 N.Y.2d 784; Griffith v City of New York, 123 A.D.2d 830, 831-832, lv dismissed and lv denied 69 N.Y.2d 729; Mack v. Altmans Stage Light. Co., 98 A.D.2d 468, 471; Swiatkowski v. Board of Educ., 36 A.D.2d 685, 686). Thus, summary judgment was properly granted in favor of the school district.
With regard to the claim against the town, the plaintiff Salvatore Fornaro, the father of the infant plaintiff, testified at an examination before trial that neither he nor anyone else gave written notice of the alleged defect in the roadway to the town and there is no evidence in the record to support a constructive notice theory. In the absence of the notice required by Town Law § 65-a this action was properly dismissed as against the town (see, Rodriguez v. County of Suffolk, 123 A.D.2d 754, 755-756). Further, as a matter of law, the alleged defect in the roadway, in which the rocks were allegedly obtained, was not a proximate cause of this occurrence (see, Lomnitz v. Town of Woodbury, 81 A.D.2d 828; Bolsenbroek v. Tully Di Napoli, 12 A.D.2d 376, 377-378, affd 10 N.Y.2d 960). Mangano, J.P., Bracken, Spatt and Harwood, JJ., concur.