BY WALLIS v. Canastota Central School District, Appellant. (2024)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Donald F. Cerio Jr., J.), entered December 22, 2022 in Madison County, which denied motions by defendant Canastota Central School District to dismiss the complaint and cross-claims against it.

Plaintiff's son (hereinafter the child) was a student in defendant Canastota Central School District (hereinafter the school district).  Throughout the 2021–2022 school year, the child was enrolled in a course through defendant Madison–Oneida Board of Cooperative Educational Services (hereinafter BOCES) taught by defendant Mark Schoff.  On January 18, 2022, during this class, the child was involved in an altercation with another student resulting in certain injuries.  Plaintiff, as the child's parent, commenced this action against defendants raising various claims of negligence related to defendants’ actions before, during and after the altercation.  The school district moved pre-answer to dismiss the complaint as well as cross-claims brought by BOCES and Schoff.  Supreme Court denied these motions, and the school district appeals.

“Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Cavosie v. Hussain, 215 A.D.3d 1080, 1081, 187 N.Y.S.3d 837 [3d Dept. 2023] [internal quotation marks and citations omitted]).  “[A]lthough schools are not insurers of safety, they are under a duty to adequately supervise the students in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (A.J. v. Canastota Cent. Sch. Dist., 214 A.D.3d 67, 70, 184 N.Y.S.3d 433 [3d Dept. 2023] [internal quotation marks, brackets and citation omitted];  accord Motta v. Eldred Cent. Sch. Dist., 141 A.D.3d 819, 820, 36 N.Y.S.3d 239 [3d Dept. 2016]).  However, “[t]he school's duty is ․ coextensive with and concomitant to its physical custody of and control over the child[, thus] [w]hen that custody ceases because the child has passed out of the orbit of its authority ․ the school's custodial duty also ceases” (Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 [1976];  accord Ferraro v. North Babylon Union Free School Dist., 69 A.D.3d 559, 560, 892 N.Y.S.2d 507 [2d Dept. 2010];  see Levy v. City of New York, 227 A.D.3d 975, 976, 211 N.Y.S.3d 510 [2d Dept. 2024];  Spring v. Allegany–Limestone Cent. Sch. Dist., 221 A.D.3d 1474, 1476, 200 N.Y.S.3d 594 [4th Dept. 2023];  Quinn v. Wallkill Sch. Dist., 215 A.D.3d 1113, 1114, 188 N.Y.S.3d 224 [3d Dept. 2023];  see also Morning v. Riverhead Cent. School Dist., 27 A.D.3d 435, 436, 811 N.Y.S.2d 747 [2d Dept. 2006];  Gahan v. Mineola Union Free School Dist., 241 A.D.2d 439, 441, 660 N.Y.S.2d 144 [2d Dept. 1997];  Kennedy v. Waterville Cent. School Dist., 172 A.D.2d 1019, 1020, 569 N.Y.S.2d 278 [4th Dept. 1991]).

On this motion to dismiss pursuant to CPLR 3211, “we must accept the facts alleged in the complaint as true and accord the nonmoving party the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Van Amburgh v. Boadle, 231 A.D.3d 187, ––––, 217 N.Y.S.3d 713, 715 [3d Dept. 2024] [internal quotation marks and citations omitted];  see Powerflex Solar, LLC v. Solar PV Pros, LLC, 230 A.D.3d 834, 837, 217 N.Y.S.3d 694 [3d Dept. 2024]).  “The question to be resolved on such a motion is not whether the plaintiff can ultimately establish his or her allegations and is likely to prevail, but whether, if believed, his or her complaint sets forth facts that constitute a viable cause of action” (Brown v. University of Rochester, 224 A.D.3d 1180, 1181, 207 N.Y.S.3d 179 [3d Dept. 2024] [internal quotation marks and citations omitted]).

The complaint alleges that the child was pushed to the ground and assaulted during a class he was attending through BOCES, which caused him to sustain various physical and psychological injuries.  According to plaintiff, Schoff was negligent in failing to adequately supervise the class and prevent the incident in question, and the remaining defendants are vicariously liable for this negligence.  Yet, in addition, plaintiff also alleges that defendants failed to seek appropriate medical attention for the child after the incident, to properly discipline the assailant, to protect the child from further harassment after the incident and inappropriately barred the child from returning to BOCES the following school year.  While some of these allegations pertain to the incident in question and the adequacy of the supervision at that time, plaintiff also raises claims related to the school district's actions prior to and in response to the incident.  For this reason, it is not necessary to determine as a matter of law whether the child had – based upon his attendance at BOCES at the time of the incident – passed out of the custody and control of the school district and, consequently, whether the school district owed a duty of care at the time of the incident (see generally Morning v. Riverhead Cent. School Dist., 27 A.D.3d at 436, 811 N.Y.S.2d 747;  Kennedy v. Waterville Cent. School Dist., 172 A.D.2d at 1020, 569 N.Y.S.2d 278).  Thus, we make no determination in this respect.  Rather, construing the allegations in the complaint liberally and according plaintiff the benefit of every favorable inference as we must, we find that plaintiff has stated a cause of action for negligence (see generally Brown v. University of Rochester, 224 A.D.3d at 1182, 207 N.Y.S.3d 179;  Villar v. County of Erie, 126 A.D.3d 1295, 1296, 5 N.Y.S.3d 747 [4th Dept. 2015]).  As such, Supreme Court properly denied the school district's motions to dismiss the compliant and the cross-claims against it.

ORDERED that the order is affirmed, without costs.

Powers, J.

Garry, P.J., Reynolds Fitzgerald, Fisher and McShan, JJ., concur.