Opinion
No. 21934/12.
12-12-2014
Mackenzie HIGGINS, An Infant Under the Age of 14 Years by his Mother and Natural Guardian, Shirline HIGGINS and Shirline Higgins, Individually, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and the City of New York, Defendants.
Opinion
Defendants, the City of New York (hereinafter “City”) and the New York City Department of Education (hereinafter “Board”), move inter alia for summary judgment, dismissing plaintiff's complaint as asserted against them.
This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff, Mackenzie Higgins, on October 31, 2011, as a result of hitting a doorframe of a classroom at PS 173, located at 174–10 67th Avenue, in the County of Queens, City and State of New York.
At the time of the incident the infant plaintiff was just under five years old and was assigned to a kindergarten classroom that did not have an attached bathroom. The students had to use a bathroom an unspecified distance down the hallway and were required to have a classmate accompany them to them to the bathroom.
On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ...” (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 [1985] ). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ).
As an initial matter, apart from a copy of the occurrence report, comprehensive injury report and written witness statement (a total of 4 pages), the only evidence submitted in support of the motion are unsigned deposition transcripts.
Contrary to movants' contention, the unsigned deposition transcripts of the plaintiffs are inadmissible as movants have failed to make any showing that the transcripts were forwarded to plaintiffs' for their review and were not signed and returned within 60 days (See Marmer v. IF USA Express, Inc., 73 AD3d 868, 869 [2d Dept.2010] ; Martinez v. 123–16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2d Dept.2008] ; cf. Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 51 [2d Dept.2014] ; David v. Chong Sun Lee, 106 AD3d 1044, 1045 [2d Dept.2013] ).
However, contrary to plaintiff's contention, the unsigned deposition transcripts of defendants' own witnesses are admissible as they are being submitted by the party deponents themselves and, as such, have been adopted as accurate (See Rodriguez v. Ryder Truck, Inc., 91 AD3d 935, 936 [2d Dept.2012] ; Ashif v. Won Ok Lee, 57 AD3d 700 [2d Dept.2008] ).
It is well settled that a school is under a duty to adequately supervise the students in its charge and is liable for foreseeable injuries proximately related to its failure to provide adequate supervision (See Palmer v. City of New York, 109 AD3d 526, 528 [2d Dept.2013] (citing Mirand v. City of New York, 84 N.Y.2d 44, 49 [1994] )). Nevertheless, a school is not an insurer of safety and cannot reasonably be expected to supervise and control all movements and activities of students (See Mirand, supra, at 49).
Movants' contention that plaintiff's injuries were unforeseeable as a matter of law because the Board did not have knowledge or notice of the dangerous conduct that caused the injury is without merit.
It is clear that knowledge or notice of prior similar conduct is only required in those cases where the student was injured by the acts of a fellow student (See Diana G. v. Our Lady Queen of Martyrs Sch., 100 AD3d 592 [2d Dept.2012] ).
Here plaintiff was not injured by another student and, as such, does not need to demonstrate that the Board had knowledge of prior similar conduct. Rather, plaintiff need only demonstrate that it was foreseeable that some injury may occur See Harris v. State, 117 A.D.2d 298, 303 [2d Dept.1986] ).
Under the circumstances, and contrary to movants' contentions, it is foreseeable that a five year old child allowed to walk down the hallway and go to the bathroom without adult supervision could result in some injury.
The adequacy of a school's supervision of its students and whether inadequate supervision was the proximate cause of the accident generally presents a question of fact best left to be resolved by a jury (See Palmer, supra at 528; Braunstein v. Half Hollow Hills Cent. Sch. Dist., 104 AD3d 893, 894 [2d Dept.2013] ).
Here, as defendants admit that the infant plaintiff was not supervised by an adult at the time of the incident and as they fail to submit any evidence, such as internal guidelines or expert testimony, that being accompanied by a five year old classmate is adequate, there remain triable issues of fact regarding the adequacy of the supervision (See Osmanzai v. Sports & Arts in Schools Found ., Inc., 116 AD3d 937, 938 [2d Dept.2014] ; Talyanna S. v. Mount Vernon City Sch. Dist., 97 AD3d 561, 562 [2d Dept.2012] ; cf. Charles v. City of Yonkers, 103 AD3d 765, 766 [2d Dept.2014] ).
Finally, with respect to the City, it is well established that the City and the BOE are separate legal entities and the City cannot be held liable for the torts committed by the BOE and its employees (See Allende v. City of New York, 69 AD3d 931, 932 [2d Dept.2010] ; Perez v. City of New York, 41 AD3d 378, 379 [1st Dept.2007] ).
Accordingly, that portion of defendants' motion seeking summary judgment and dismissal of plaintiff's complaint against the City of New York, only, is granted, without opposition, and plaintiff's Complaint is dismissed as asserted against the City.
That portion of defendants' motion seeking summary judgment and dismissal of plaintiff's cause of action for negligent maintenance is likewise granted without opposition.
The motion is denied in all other respects.