STRNAD v. Floral Park Memorial High School, et al., respondents. (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), entered March 29, 2007, which granted the motion of the defendants Floral Park Memorial High School and Sewanhaka Central High School District for summary judgment dismissing the complaint insofar as asserted against them.   The appeal brings up for review so much of an order of the same court dated May 21, 2007, as, upon reargument, adhered to the original determination (see CPLR 5517[b] ).

ORDERED that the appeal from the order entered March 29, 2007, is dismissed, as that order was superseded by the order dated May 21, 2007, made upon reargument;  and it is further,

ORDERED that the order dated May 21, 2007, is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The defendants Floral Park Memorial High School and Sewanhaka Central High School District (hereinafter the defendants) made a prima facie showing of entitlement to summary judgment dismissing the complaint insofar as asserted against them.   They established that they had no actual or constructive knowledge of any prior similar conduct by the defendant Daniel McGovern and that his spontaneous act against the plaintiff could not have been reasonably anticipated.   Contrary to the plaintiffs' contention, McGovern's disciplinary record, which showed latenesses, cutting classes, and a highly disrespectful attitude towards the teachers and administration, but no violence against any students, was insufficient to put the defendants on notice of the possibility of this type of conduct (see Moody v. New York City Bd. of Educ., 8 A.D.3d 639, 780 N.Y.S.2d 603;  see generally Mirand v. City of New York, 84 N.Y.2d 44, 49-50, 614 N.Y.S.2d 372, 637 N.E.2d 263;  cf. Wilson v. Vestal Cent. School Dist., 34 A.D.3d 999, 1000, 825 N.Y.S.2d 159).   In opposition, the plaintiffs failed to raise a triable issue of fact.