MORNING v. RIVERHEAD CENTRAL SCHOOL DISTRICT (2006)

In an action, inter alia, to recover damages for wrongful death, the defendants Riverhead Central School District, s/h/a Central Riverhead School District and Eastern Suffolk BOCES, s/h/a Board of Cooperative Education Services of Suffolk County, separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 24, 2004, as denied those branches of their separate motions which were for summary judgment dismissing the cause of action alleging negligent supervision and all cross claims insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motions which were for summary judgment dismissing the cause of action alleging negligent supervision and all cross claims insofar as asserted against the appellants are granted, the cause of action alleging negligent supervision and all cross claims insofar as asserted against the appellants are dismissed, and the action against the remaining defendants is severed.

 Summary judgment should have been granted to the defendants Riverhead Central School District, s/h/a Central Riverhead School District (hereinafter the District) and Eastern Suffolk BOCES, s/h/a Board of Cooperative Education Services of Suffolk County (hereinafter BOCES) dismissing the cause of action alleging negligent supervision of the plaintiff's decedent.   A school's duty to its students is co-extensive with the school's physical custody and control over them (see Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849).   In response to BOCES's showing of its prima facie entitlement to judgment as a matter of law, the plaintiff presented no evidence that the decedent was in the custody and control of BOCES at the time of her disappearance or death (see Ramo v. Serrano, 301 A.D.2d 640, 754 N.Y.S.2d 336;  Bertrand v. Board of Educ. of City of N.Y., 272 A.D.2d 355, 707 N.Y.S.2d 218;  Tarnaras v. Farmingdale School Dist., 264 A.D.2d 391, 694 N.Y.S.2d 413;  Reed v. Pawling Cent. School Dist., 245 A.D.2d 281, 664 N.Y.S.2d 483).   BOCES therefore had no duty to supervise the decedent and summary judgment dismissing that cause of action insofar as asserted against BOCES, should have been granted (see Rowe v. Board of Educ. of City of N.Y., 12 A.D.3d 494, 783 N.Y.S.2d 860;  Winter v. Board of Educ. of City of N.Y., 270 A.D.2d 343, 704 N.Y.S.2d 142).

 The plaintiff also failed to raise a triable issue of fact in response to the District's prima facie showing of its entitlement to judgment as a matter of law.   In order to impose liability for negligent supervision, a school must have sufficiently specific knowledge or notice of a particular danger at a particular time (see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  Lawes v. Board of Educ. of the City of N.Y., 16 N.Y.2d 302, 305-306, 266 N.Y.S.2d 364, 213 N.E.2d 667;  Nocilla v. Middle Country Cent. School Dist., 302 A.D.2d 573, 757 N.Y.S.2d 300;  Gattyan v. Scarsdale Union Free School Dist. No. 1, 152 A.D.2d 650, 543 N.Y.S.2d 732), so that the injurious act could reasonably have been anticipated (see Moody v. New York City Bd. of Educ., 8 A.D.3d 639, 780 N.Y.S.2d 603;  Chambers v. Roosevelt Union Free School Dist., 260 A.D.2d 594, 689 N.Y.S.2d 171).   The District had no knowledge or notice that the assailant might harm the decedent, or that any criminal activity against a student had previously occurred in the area where she was last seen alive (see Nossoughi v. Ramapo Cent. School Dist., 287 A.D.2d 444, 731 N.Y.S.2d 78;  Marshall v. Cortland Enlarged City School Dist., 265 A.D.2d 782, 697 N.Y.S.2d 395).   Absent evidence that the incident should reasonably have been anticipated, the District did not breach any purported duty to supervise the decedent and summary judgment should have been granted dismissing that cause of action insofar as asserted against the District (see Jimenez v. City of New York, 292 A.D.2d 346, 738 N.Y.S.2d 380;  Danna v. Sewanhaka Cent. High School Dist., 242 A.D.2d 361, 662 N.Y.S.2d 71;  McGregor v. City of New York, 197 A.D.2d 609, 602 N.Y.S.2d 669).

In light of our determination, the parties' remaining contentions need not be reached.