Opinion
No. 609221/2018 Cal No. 202000858OT Mot. Seq. 004 MG
09-03-2021
COLLEEN MILLETT, Plaintiff, v. BROOKHAVEN-COMSEWOGUE UNION FREE SCHOOL DISTRICT, JOSEPH RELLA, as Superintenden,, JOSEPH CONIGLION,, as Principal, and DANA BUNDY Defendants.
MITEV LAW FIRM, P.C. Attorney for Plaintiff DEVITT SPELLMAN BARRETT, LLP Attorney for Defendanss Brookhaven-Comsewogue UFSD, Coniglione, and Rella RICHARD J. KAUFMAN, P.C. Attorney for Defendant Bundy
Unpublished Opinion
MOTION DATE 1/26/21
ADJ. DATE 7/29/21
MITEV LAW FIRM, P.C. Attorney for Plaintiff
DEVITT SPELLMAN BARRETT, LLP Attorney for Defendanss Brookhaven-Comsewogue UFSD, Coniglione, and Rella
RICHARD J. KAUFMAN, P.C. Attorney for Defendant Bundy
HON. JOSEPH A. SANTORELLI. JUSTICE OF THE SUPREME COURT
Upon the following papers read on this motion for summary judgment filed electronically and in hard-copy format: Notice of Motioni Order to Show Cause and supporting papers filed by defendants Brookhaven-Comsewogue Union Free District. Rella. and Coniglione. on January 25.2021; filed by defendants Brookhaven-Comsewogue Union Free District. Rella. and Coniglione. on January 27, 2021; Notice of Cross Motion and supporting papers __; Answering Affidavits and supporting papers filed by plaintiff, on June 10,2021; Replying Affidavits and supporting papers filed by defendants Brookhaven-Comsewogue Union Free District, Rella, and Coniglione, on July 12,2021; Other 1 - 68; 69 - 97; 98 - 104; it is
ORDERED that the motion by defendants Brookhaven-Comsewogue Union Free District, Joseph Rella, and Joseph Coniglione for summary judgment dismissing the complaint against them is granted.
Plaintiff Colleen Millet commenced this action to recover damages for personal injuries allegedly arising from, inter alia, the negligence and negligent supervision by defendants Brookhaven-Comsewogue Union Free District, Joseph Rella, as superintendent,, and Joseph Coniglione, as principal
(collectively, the Comsewogue defendants). Plaintiff allegedly was a senior at Comsewogue High School (hereinafter, the high school), which is located within defendant Brookhaven-Comsewogue Union Free District (the District), and had an Individual Education Program, at the relevant time. Plaintiff claims that she was assaulted by a fellow student, defendant Dana Bundy, on March 10, 2017, in the high school's cafeteria. By the verified complain,, as amplified by the verified bill of particulars, plaintiff alleges, among other things, that the Comsewogue defendants were negligent in, among other things, failing to supervise plaintiff knowing the propensity of fellow students, including defendant Bundy, to bully her, and that they violated, inter alia, the Individual with Disabilities Act (IDEA) and Education Law S 3214. Plaintiff allegedly graduated from the high school on time.
By order dated November 13,2018, this Court, in relevant part, granted the motion by the Comsewogue defendants to dismiss plaintiffs causes of action under the Dignity for All Students Act, for intentional infliction of emotion distress, and for punitive damages against them. Pursuant to the order dated August 19,202,, this Court also granted the motion by defendant Bundy to vacate her default in failing to appear for a compliance conference on September 29,202..
The Comsewogue defendants now move for summary judgment dismissing the complaint against them. They argue in part, that they lacked specific knowledge or notice of plaintiff s alleged assault by defendant Bundy, and that subject altercation occurred so quickly that even the most intense supervision could not have prevented it. The Comsewogue defendants also contend that plaintiff cannot seek money damages based on their alleged violations of the IDEA and Education Law S 3214. In support of their motion, the Comsewogue defendants submit, among other things, the transcripts of plaintiff s testimony from her hearing conducted pursuant to General Municipal Law S 50-h and deposition, the transcript of defendant Coniglioness deposition testimony, and his affidavit. In opposition, plaintiff argues, among other things, that the Comsewogue defendants' motion is largely supported by evidence not in inadmissible form, and that the injury-producing conduct was foreseeable. In support of her opposition, plaintiff submits, among other things, the affirmation of her attorney.
At plaintiffs statutory hearing and deposition, she recounted several incidents involving fellow students occurring on and off school grounds during the 2016-2077 school year. Plaintiff testified that she poured a bottle of water on a fellow student named "Gina" in the high schools senior lounge, in the middle of October 2016, after she found out that "Gina" was dating her ex-boyfriend. Plaintiff allegedly considered "Gina" to be a close friend previously. Plaintiff testified that she was temporally suspended from school following the incident allegedly involving "Gina." She also testified that another student wrote a comment purportedly referring to her on a wall of the high school's senior lounge, at the end of October 2016. Plaintiff allegedly informed defendant Coniglione of the comment,, which he allegedly removed from the wall thereafter. Plaintiff recalled that she was sent a "candygram"" which appeared to be from her ex-boyfriend, in December 2016. Plaintiff allegedly reported the"candygram" incident to defendant Coniglione.
Plaintiff further testified that she was hit in the head by defendant Bundy, who she considered to be a close friend until shortly before the incident, in the high school's cafeteria, in March 2017, at approximately 7:00 a.m. According to plaintiffs statutory and deposition testimony, the subject physical altercation lasted at most 30 seconds. She elaborated that the two spoke for approximately one minute before she was hit in the head by defendant Bundy. When plaintiff was further questioned regarding defendant Bundy's physical conduct during their altercation, she responded that she thought that defendant Bundy may have pulled her hair, and "that was about it." Plaintiff allegedly was "throwing punches" before a teacher pulled her away from defendant Bundy. Plaintiff explained that the alleged assault followed from exchanges on Twitter occurring one or two nights before the subject physical altercation. She clarified that "[i]t wasn't really Dana and [her] talking to each other on Twitter," and that "another kid [] was involved, who was kind of hyping it up." Defendant Bundy allegedly had "blocked" plaintiff on Twitter before the subject physical altercation. Plaintiff admitted that she never shared the tweets allegedly leading up to the physical altercation, which she acknowledged involved no threat of physical harm, with her parents or school personnel,, before the physical altercation. She also testified that she never previously reported any concern regarding defendant Bundy to school personnel..
According to plaintiffs statutory and deposition testimony, she was "cyberbullied" by "Gina" on Twitter nearly everyday of her senior school year. While plaintiff admitted the tweets posted by "Gina" did not refer to her by name, she stated that she assumed that they were about her. Plaintiff allegedly shared screens hots of the tweets posted by "Gina" with defendant Coniglione and the high school's assistant principal. Plaintiff contended that she spoke with defendant Coniglione "[c]ountless times" regarding her concerns of bullying during her senior year.
Jeanne Millet, who allegedly is plaintiffs mother, appeared for a statutory hearing. Mrs. Millet testified that she contacted school personnel on several occasions regarding bullying incidents involving plaintiff. She further testified that she reported certain tweets and instances of a car driving past her home and beeping its horn to school personnel..
According to defendant Coniglioness deposition testimony and affidavit, he was the high school's principal at the relevant time. Defendant Coniglione attests to his familiarity with an incident when plaintiff "shoulder-checked" "Gina" in a hallway of the high school at "one point in the year," and with an incident when plaintiff threw water at "Gina" in October 2016. He also attests to his familiarity with an incident involving a slur purportedly written about plaintiff on a wall of the high school's senior lounge. While an investigation regarding the comment written on the wall allegedly was performed, person who wrote the comment allegedly never was identified. Defendant Coniglione also attests to his familiarity with a "Twitter war" purportedly arising after Gina began dating plaintiffs ex-boyfriend. Defendant Coniglione allegedly recalled exchanges on Twitter regarding "another boy." He testified that he communicated with plaintiff regarding her concerns regarding "cyberbullying," and that he also communicated with her mother regarding her use of social media.
Schools have a duty to adequately supervise their students, and will be held liable for foreseeable injuries proximately caused by the absence of adequate supervision (see Mirand v City of New York, 84 N.Y.2d 44,614 N.Y.S.2d 372 [1994]; see Genova v Town of Clarkstown, 195 A.D.3d 598, 144 N.Y.S.3d 633 [2d Dept 2021]; Chen v City of New York, 194 A.D.3d 904, 149 N.Y.S.3d 190 [2d Dept 2021]). However, schools are not the insurers of the safety of their students, and cannot cannot reasonably be expected to continuously supervise and control all of their students' movements and activities (see Wienclaw v East Islip Union Free Sch. Dist, 192 A.D.3d 945, 144 N.Y.S.3d 106 [2d Dept 2021]; J.F. v Brentwood Union Free Sch. Dist, 184 A.D.3d 806,124 N.Y.S.3d 564 [2d Dept 2020]; B.T. v Bethpage Union Free Sch. Dist., 173 A.D.3d 806, 103 N.Y.S.3d 99 [2d Dept 2019]). Moreover, "unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school's liability in negligence absent actual or constructive notice of prior similar conduct" (Brandy B. v Eden Cent. Sch. Dist., 15 NY3d 297,302, 907 N.Y.S.2d 735, 737 [2010]; see Mirand v City of New York, supra; Francis v Mount Vernon Bd. of Educ, 164 A.D.3d 873, 83 N.Y.S.3d 637 [2d Dept 2018]). In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, "[i]t 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" (Brandy B. v Eden Cent. Sch. Dist., supra at 302,907 N.Y.S.2d at 737, quoting Mirand v City of New York, supra at 49,614 N.Y.S.2d at 375; see Nizen-Jacobellis v Lindenhurst Union Free Sch. Dist, 191 A.D.3d 1007, 143 N.Y.S.3d 368 [2d Dept 2021]; M.C. v City of New York, 173 A.D.3d 728, 102 N.Y.S.3d 702 [2d Dept 2019]).
Even if a breach of the duty of supervision is established, a plaintiff must also establish that such negligence was a proximate cause of the injuries sustained (see Mirand v City of New York, supra; Nizen-Jacobellis v Lindenhurst Union Free Sch. Dist, supra; Gaston v East Ramapo Cent. Sch. Dist., 165 A.D.3d 761,85 N.Y.S.3d 525 [2d Dept 2018]). The test for causation is whether the chain of events following the negligent act or omission was a normal or foreseeable consequence under the circumstances (see Mirand v City of New York, supra; K. J. v City of New York, 156 A.D.3d 611, 65 N.Y.S.3d 522 [2d Dept 2017]; Guerriero v Sewanhaaa Cent. High Sch. Dist, 150 A.D.3d 831, 55 N.Y.S.3d 85 [2d Dept 2017]). Where an accident occurs so quickly that even the most intense supervision could not have prevented it, any lack of supervision is not a proximate cause of the injury (see Colantonio v Mount Sinai Union Free Sch. Dist, 193 A.D.3d 1031, 147N.Y.S.3d663 [2d Dept 2021]; E.W. v City of New York, 179 A.D.3d 747, 117 N.Y.S.3d 79 [2d Dept 2020]; Gonzalez v South Huntington Union Free Sch. Dist, 176 A.D.3d 920, 122 N.Y.S.3d 151 [2d Dept 2020]). The determination of whether an incident occurs in such a short span of time, so as to preclude imposing liability for negligent supervision, is based on the circumstances leading up to and surrounding the incident rather than "the speed of the punch" (K.J. v City of New York, supra at 614,65 N.Y.S.3d at 526, quoting Wood v Watervliet City Sch. Dist, 30 A.D.3d 663,665, 815 N.Y.S.2d 360, 363 [3d Dept 2006]).
The Comsewogue defendants established their prima facie entitlement to summary judgment dismissing the complaint against them. They established, prima facie, that they did not have specific knowledge or notice of the allegedly dangerous conduct such that plaintiffs alleged assault by defendant Bundy reasonably could have been anticipated by them (see Wienclaw v East Islip Union Free Sch. Dist, supra; Hale v Holley Cent. Sch. Dist, 159 A.D.3d 1509, 72 N.Y.S.3d 700 [4d Dept 2018]; Francis v Mount Vernon Bd. of Educ, supra; Maldari v Mount Pleasant Cent. Sch. Dist, 131 A.D.3d 1019,17 N.Y.S.3d 48 [2d Dept 2015]; Conkiin v Saugerties Cent. School Dist, 106 A.D.3d 1424,966 N.Y.S.2d 575 [3d Dept 2013]; Keith S. v East Islip Union Free School Dist, 96 A.D.3d 927,946 N.Y.S.2d 638 [2d Dept 2012]; Best v DAK Transp. Corp., 81 A.D.3d 543, 917 N.Y.S.2d 565 [1st Dept 2011]). Among other things, plaintiff acknowledged that she considered defendant Bundy to be a close friend shortly before the alleged assault, that she never previously expressed concern about defendant Bundy to school personnel, and that she never reported the tweets allegedly leading up to physical altercation with defendant Bundy, which she admitted involved no threat of physical harm, to her parents or school personnel, prior to the subject incident (see Hale v Holley Cent Sch. Dist., supra; Francis v Mount Vernon Bd. of Educ, supra; Conkiin v Saugerties Cent. School Dist, supra; Keith S. v East Islip Union Free School Dist, supra; Best v DAK Transp. Corp., supra). In any event, the Comsewogue defendants established, prima facie, that "the incident occurred in so short a period of time that any negligent supervision on its part was not a proximate cause of. . . plaintiffs injuries" (Wienclaw v East Islip Union Free Sch. Dist, supra at 947, 144 N.Y.S.3d at 109, quoting Meyer v Magalios, 170 A.D.3d 1163, 1165,97 N.Y.S.3d 265, 268 [2d Dept 2019]; see Brown v South Country Cent Sch. Dist, 137 A.D.3d 732, 25 N.Y.S.3d 675 [2d Dept 2016]; Braun v Longwood Jr. High Sch., 123 A.D.3d 753,997 N.Y.S.2d 744 [2d Dept 2014]). As previously indicated, plaintiffs physical altercation with defendant Bundy allegedly lasted for at most 30 seconds. Plaintiff explained that defendant Bundy hit her in the head and "maybe" pulled her hair, and "that was about it." She admitted to "throwing punches" at defendant Bundy until a teacher separated them. The Comsewogue defendants further established, prima facie, that they cannot be held liable based on their purported violation of the IDEA (see Deb B. v Longwood Cent. Sch. Dist, 165 A.D.3d 1212,87 N.Y.S.3d 625 [2d Dept 2018]). "The purpose of the IDEA is to provide educational services, not compensation for personal injury, and a damages remedy-as contrasted with reimbursement of expenses-is fundamentally inconsistent with this goal" (Polera v Board of Educ. of Newburgh Enlarged City Sch. Dist, 288 F.3d 478,466 [2d Cir 2002]). Here, plaintiff only seeks monetary damages for personal injuries based on the Comsewogue defendants' alleged violation of the IDEA (see Deb B. v Longwood Cent. Sch. Dist, supra). Further, plaintiff had no private right of action for money damages for personal injuries based upon their alleged violation of Education Law S 3214 (see Boyle v Caledonia-Mumford Cent Sch., 140 A.D.3d 1619,34 N.Y.S.3d 548 [4th Dept 2016]).
The Comsewogue defendants having met their initial burden on the motion, the burden shifted to plaintiff to submit evidentiary proof, in admissible form, which raises a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320,508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557,427 N.Y.S.2d 595 [1980]). In opposition, plaintiff failed to raise a triable issue of fact (see Wienclaw v East Islip Union Free Sch. Dist., supra; Meyer v Magalios, supra; see generally Alvarez v Prospect Hosp., supra). Contrary to plaintiffs contention, the Comsewogue defendants' motion is sufficiently supported by evidence, in admissible form, including the transcripts of statutory and deposition testimony, to establish their prima facie entitlement to summary judgment dismissing the complaint against them. Although the Comsewogue defendants' submissions indicated that school personnel were aware of prior bullying incidents involving other students and plaintiff, such evidence was not sufficiently specific to reasonably alert them that defendant Bundy would potentially assault plaintiff under the circumstances of this case (see Emmanuel B. v City of New York, 131 A.D.3d 831, 15 N.Y.S.3d 790 [1st Dept 2015]; Kamara v City of New York, 93 A.D.3d 449,940 N.Y.S.2d 53 [1st Dept 2012]; ef. Nizen-Jacobellis v Lindenhurst Union Free Sch. Dist, supra). Further, the affirmation from an attorney having no personal knowledge of the facts is without evidentiary value and, thus, is insufficient to raise a triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, supra; Colini v Stino, 186 A.D.3d 1610, 129 N.Y.S.3d 826 [2d Dept 2020]). The Court finds plaintiffs remaining arguments in opposition unavailing.
Accordingly, the motion by the Comsewogue defendants is granted.