DEAN II v. FALCONER CENTRAL SCHOOL DISTRICT

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Supreme Court, Appellate Division, Fourth Department, New York.

Lorraine DEAN, Individually and for William Dean, II, an Infant, Plaintiff-Respondent, v. FALCONER CENTRAL SCHOOL DISTRICT, Robert Niver, Superintendent, Defendants-Appellants, et al., Defendants.

Decided: March 31, 1999

PRESENT:  GREEN, J.P., PINE, WISNER, SCUDDER and CALLAHAN, JJ. Brian Chapin York, Jamestown, for plaintiff-respondent. Richard Tracy Saraf, of counsel, Saperston & Day, P.C., Buffalo, for defendants-appellants.

Plaintiff commenced this action seeking damages for injuries sustained by her son, a seventh grader at Falconer Central School.   She alleged that her son was injured twice by students at school at times when students were gathered in the corridors without adult supervision in violation of the rules of the Falconer Central School District.   Defendants Falconer Central School District and Robert Niver, Superintendent (collectively School District) moved for summary judgment dismissing the complaint against them on the ground that, because the students' actions were spontaneous and unanticipated, those actions were intervening and superseding causes of the injuries to plaintiff's son.

 Supreme Court properly denied the School District's motion.   Although the School District met its initial burden, plaintiff raised a question of fact whether the School District breached its duty to provide adequate supervision for its students (see, Decker v. Dundee Cent. School Dist., 4 N.Y.2d 462, 464, 176 N.Y.S.2d 307, 151 N.E.2d 866;  Shante D. v. City of New York, 190 A.D.2d 356, 361, 598 N.Y.S.2d 475, affd. 83 N.Y.2d 948, 615 N.Y.S.2d 317, 638 N.E.2d 962).   In determining whether there was a breach of that duty, it must be established that the School District had actual or constructive notice of the dangerous conduct (see, Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263).   Finally, if it is determined that the School District breached its duty, there is a further question of fact whether the breach of duty was a proximate cause of the injuries to plaintiff's son (see, Mirand v. City of New York, supra, at 50, 614 N.Y.S.2d 372, 637 N.E.2d 263).

Order unanimously affirmed with costs.

MEMORANDUM: