Opinion
2018–04534 Index No. 510736/16
06-05-2019
M.C., etc., et al., Appellants, v. CITY OF NEW YORK, et al., Respondents, et al., Defendants.
Law Offices of John P. Grill, P.C., Carmel, NY, for appellants. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Diana Lawless of counsel), for respondents.
Law Offices of John P. Grill, P.C., Carmel, NY, for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Diana Lawless of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order dated March 15, 2018, is reversed, on the law, with costs, and the motion of the defendants City of New York and New York City Education Department pursuant to CPLR 3104(d) to review and vacate the order dated December 20, 2017, is denied. On February 10, 2016, the infant plaintiff allegedly was sexually assaulted by another student in a stairwell at the High School for Youth and Community Development in Brooklyn. The infant plaintiff, by her mother and natural guardian, and her mother, individually (hereinafter together the plaintiffs), commenced this action against, among others, the City of New York and the New York City Education Department (hereinafter together the defendants), inter alia, to recover damages for negligent supervision. In an order dated December 20, 2017, the Supreme Court directed the defendants to, among other things, provide "DOE records regarding assaults that occurred on school grounds for one year before the incident." Thereafter, the defendants moved pursuant to CPLR 3104(d) to review and vacate the order dated December 20, 2017. In an order dated March 15, 2018, the court granted the defendants' motion to the extent of vacating the provision in the order dated December 20, 2017, directing the defendants to provide "DOE records regarding assaults that occurred on school grounds for one year before the incident," and substituting therefor a provision directing the defendants to provide only records pertaining to "assaults of a sexual nature" and "all assaults of any nature between" the infant plaintiff and the student alleged to have sexually assaulted the infant plaintiff.
Pursuant to CPLR 3101(a), "[t]here shall be full disclosure of all matter material and necessary in the prosecution ... of an action." The words "material and necessary" are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial ( McAlwee v. Westchester Health Assoc., PLLC, 163 A.D.3d 547, 548, 81 N.Y.S.3d 102 ; see Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ). " ‘The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed’ " ( McAlwee v. Westchester Health Assoc., PLLC, 163 A.D.3d at 548, 81 N.Y.S.3d 102, quoting Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d 798, 799, 23 N.Y.S.3d 352 ).
Further, in determining whether the duty of a school to provide adequate supervision was breached in the context of injuries caused by the acts of fellow students, " ‘it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated’ " ( Gaston v. East Ramapo Cent. Sch. Dist., 165 A.D.3d 761, 762, 85 N.Y.S.3d 525, quoting Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ). "Actual or constructive notice to the school of prior similar conduct generally is required" ( Gaston v. East Ramapo Cent. Sch. Dist., 165 A.D.3d at 762, 85 N.Y.S.3d 525 ). Thus, reports of prior incidents at a school may be material and necessary to determine whether school officials had actual or constructive notice of conduct similar to the subject incident (see Culbert v. City of New York, 254 A.D.2d 385, 388, 679 N.Y.S.2d 148 ). We disagree with the Supreme Court's determination that the defendants were only required to provide records pertaining to "assaults of a sexual nature" and "all assaults of any nature between" the infant plaintiff and the student alleged to have sexually assaulted the infant plaintiff. Evidence of prior assaults at the school, particularly any assaults in the stairwell where the subject incident occurred, may be sufficient to establish that the defendants had actual or constructive notice of conduct similar to the subject incident (see Doe v. Department of Educ. of City of New York, 54 A.D.3d 352, 353–354, 862 N.Y.S.2d 598 ). Moreover, evidence of any prior assaults perpetuated by the offending student against students other than the infant plaintiff may be sufficient to establish that the defendants had actual or constructive notice of the offending student's dangerous propensities (see Gaston v. East Ramapo Cent. Sch. Dist., 165 A.D.3d at 763, 85 N.Y.S.3d 525 ). Accordingly, the court should have denied the defendants' motion to review and vacate the order dated December 20, 2017.
Although the parties raise arguments regarding the plaintiffs' cross motion for leave to reargue their prior motion pursuant to CPLR 3126 to strike the defendants' answer, the Supreme Court did not decide that cross motion, and it remains pending and undecided (see Katz v. Katz, 68 A.D.2d 536, 542–543, 418 N.Y.S.2d 99 ).
LEVENTHAL, J.P., DUFFY, BARROS and IANNACCI, JJ., concur.