Opinion
02-08-2017
Tiffany HERNANDEZ, etc., et al., appellants, v. CITY OF NEW YORK, et al., respondents.
The Berkman Law Office, LLC, Brooklyn, NY (Robert J. Tolchin and Meir Katz of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Fay Ng of counsel), for respondents.
The Berkman Law Office, LLC, Brooklyn, NY (Robert J. Tolchin and Meir Katz of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Fay Ng of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Flug, J.), entered June 5, 2015, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The infant plaintiff and her father (hereinafter together the plaintiffs) were allegedly assaulted outside of the infant plaintiff's school by students of the school. The assaults took place approximately 30 to 100 feet beyond the school's entrance, and off school grounds. The plaintiffs commenced this action against the defendants City of New York, the New York City Department of Education, and the school (hereinafter collectively the defendants), alleging that they were negligent in failing to provide the infant plaintiff with adequate supervision and in failing to provide both plaintiffs with adequate security.
With respect to the contention that the defendants may be liable for the infant plaintiff's injuries, a school's duty is coextensive with, and concomitant with, its physical custody and control over a child (see Chainani v. Board of Educ. of City of N.Y., 87 N.Y.2d 370, 639 N.Y.S.2d 971, 663 N.E.2d 283 ; Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 ; Begley v. City of New York, 111 A.D.3d 5, 972 N.Y.S.2d 48 ). "When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases" (Pratt v. Robinson, 39 N.Y.2d at 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 ). "As a result, where a student is injured off school premises, there can generally be no actionable breach of a duty that extends only to the boundaries of school property" (Tarnaras v. Farmingdale School Dist., 264 A.D.2d 391, 392, 694 N.Y.S.2d 413 ; see Bertrand v. Board of Educ. of the City of N.Y., 272 A.D.2d 355, 707 N.Y.S.2d 218 ). Here, the defendants established, prima facie, that they may not be held liable for the infant plaintiff's injuries since, at the time of the subject incident, the infant plaintiff was no longer in their custody or under their control and was, thus, outside the orbit of their authority (see Pistolese v. William Floyd Union Free Dist., 69 A.D.3d 825, 895 N.Y.S.2d 125 ; Stagg v. City of New York, 39 A.D.3d 533, 833 N.Y.S.2d 188 ; Bertrand v. Board of Educ. of City of N.Y., 272 A.D.2d 355, 707 N.Y.S.2d 218 ; Winter v. Board of Educ. of the City of N.Y., 270 A.D.2d 343, 704 N.Y.S.2d 142 ; see also Johnson v. Rochester City Sch. Dist., 101 A.D.3d 1641, 956 N.Y.S.2d 370 ; Marcano v. City of New York, 305 A.D.2d 223, 762 N.Y.S.2d 28 ).
Nor is there a basis to impose liability upon the defendants for the injuries sustained by the infant plaintiff or her father for failure to provide adequate security, since the defendants demonstrated that they did not affirmatively assume a duty to protect either plaintiff from criminal activity which occurred off the school premises (see Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937 ; Conde v. City of New York, 24 A.D.3d 595, 808 N.Y.S.2d 347 ).
Accordingly, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint. In opposition thereto, the plaintiffs failed to raise a triable issue of fact.
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.