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

Bridgette MALDONADO, etc., et al., appellants, v. TUCKAHOE UNION FREE SCHOOL DISTRICT, et al., respondents.

Decided: June 20, 2006

ANITA R. FLORIO, J.P., FRED T. SANTUCCI, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Constantine G. Dimopoulos, Scarsdale, N.Y., for appellants. Girvin & Ferlazzo, P.C., Albany, N.Y. (Patrick J. Fitzgerald of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Murphy, J.), entered February 2, 2005, which, upon converting the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint into a motion for summary judgment pursuant to CPLR 3211(c), granted the motion, and (2) an amended order of the same court entered February 16, 2005.   The appeals bring up for review so much of an order of the same court entered April 21, 2005, as, in effect, upon reargument, adhered to the original determination (see CPLR 5517[b] ).

ORDERED that the appeals from the order entered February 2, 2005, and the amended order entered February 16, 2005, are dismissed, as those orders were superseded by the order entered April 21, 2005, made, in effect, upon reargument;  and it is further,

ORDERED that the order entered April 21, 2005, is affirmed insofar as reviewed;  and it is further,

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

On May 8, 2003, at approximately 8:30 P.M., the injured plaintiff, Bridgette Maldonado, allegedly was attacked in her home by Brian Morris.   Both Morris and the injured plaintiff were students at Tuckahoe High School, which is operated by the defendants.   It is undisputed that, approximately one month before the attack, the defendants learned that Morris allegedly had made death threats against the injured plaintiff and her brother, and the school's principal met with both students and their parents to discuss the matter.   It is also undisputed that Morris was suspended from school on April 24, 2003, and was still under suspension on the date of the incident.

 A school is not an insurer of the safety of its students, and the duty owed to its students “is co-extensive with the school's physical custody and control over them” (Morning v. Riverhead Cent. School Dist., 27 A.D.3d 435, 811 N.Y.S.2d 747;  see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263).   Thus, “where a student is injured off school premises, there can generally be no actionable breach of a duty that extends only to the boundaries of school property” (Tarnaras v. Farmingdale School Dist., 264 A.D.2d 391, 392, 694 N.Y.S.2d 413;  see Bowers v. City of New York, 294 A.D.2d 526, 742 N.Y.S.2d 659;  Bertrand v. Board of Educ. of City of N.Y., 272 A.D.2d 355, 707 N.Y.S.2d 218;  Bodaness v. Staten Is. Aid, 170 A.D.2d 637, 567 N.Y.S.2d 63).

 Moreover, the defendants' alleged negligence in this case-i.e., the failure to protect the injured plaintiff from the criminal act of a third party-involves a governmental function for which the defendants may not be held liable in the absence of a special duty (see Vitale v. City of New York, 60 N.Y.2d 861, 863, 470 N.Y.S.2d 358, 458 N.E.2d 817;  Moreno v. City of New York, 27 A.D.3d 536, 813 N.Y.S.2d 143;  Johnson v. New York City Bd. of Educ., 270 A.D.2d 310, 704 N.Y.S.2d 281;  Rashed v. State of New York, 232 A.D.2d 394, 648 N.Y.S.2d 131).   Here, the defendants established their prima facie entitlement to judgment as a matter of law by showing, inter alia, that they assumed no affirmative duty to protect the injured plaintiff outside of the school's premises and that the injured plaintiff, in any event, could not justifiably rely on the defendants to protect her at her residence after school hours.   In opposition, the plaintiffs failed to raise a triable issue of fact as to the existence of a special duty (see Johnson v. New York City Bd. of Educ., supra;  Weinstein v. Board of Educ. of City of N.Y., 127 A.D.2d 655, 511 N.Y.S.2d 882;  see also Bertrand v. Board of Educ. of City of N.Y., supra ).

 In any event, even assuming that a “special duty” existed, the defendants established, prima facie, that the breach of that duty was not a proximate cause of Bridgette Maldonado's injuries.  “The test to be applied is whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school's negligence” (Mirand v. City of New York, supra at 50, 614 N.Y.S.2d 372, 637 N.E.2d 263).   Under the circumstances of this case, the injured plaintiff's voluntary act of allowing Brian Morris into her home, notwithstanding the prior threats he had allegedly made against her, constituted a superseding intervening act which severed any link between the defendants' alleged negligence and her injuries (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 316, 434 N.Y.S.2d 166, 414 N.E.2d 666).

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