ROSE ROSE v. ONTEORA CENTRAL SCHOOL DISTRICT

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

Patrick ROSE, an Infant, by Arthur ROSE, His Father and Guardian, et al., Appellants, v. ONTEORA CENTRAL SCHOOL DISTRICT, Respondent.

Decided: June 26, 2008

Before:  CARDONA, P.J., SPAIN, CARPINELLO, MALONE JR. and KAVANAGH, JJ. Basch & Keegan, L.L.P., Kingston (Derek J. Spada of counsel) and Arroyo, Copland & Associates, Albany (Cynthia Feathers of counsel), for appellants. Maynard, O'Connor, Smith & Catalinotto, Albany (Robert A. Rausch of counsel), for respondent.

Appeal from an order of the Supreme Court (Connolly, J.), entered May 30, 2007 in Ulster County, which granted defendant's motion for summary judgment dismissing the complaint.

At approximately 7:30 A.M. on the morning of November 22, 2004, 14-year-old plaintiff Patrick Rose (hereinafter plaintiff), who was in ninth grade, went to his homeroom class at defendant's high school.   Finding the door unlocked, he proceeded inside.   His homeroom teacher was not there.   Shortly thereafter-between one to three minutes after arriving-plaintiff was involved in an incident with two other students resulting in an injury to his finger.   Specifically, another ninth-grade student-as a joke on his friend coming into the room-attempted to hold the door shut as his friend tried to pull it open.   Plaintiff went over and pushed on the door in an effort to assist the incoming student when, within a “second,” his thumb was smashed in the door.   This action premised on negligent supervision ensued.   At issue is an order of Supreme Court granting defendant summary judgment.   We affirm.

 Although “[s]chools 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” (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994];  see Wood v. Watervliet City School Dist., 30 A.D.3d 663, 815 N.Y.S.2d 360 [2006] ), they are not insurers of student safety “for they cannot reasonably be expected to continuously supervise and control all movements and activities of students;  therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another” (Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [internal quotation marks and citation omitted];  see Van Leuvan v. Rondout Val. Cent. School Dist., 20 A.D.3d 645, 646, 798 N.Y.S.2d 770 [2005] ).   Moreover, to find that a school breached the duty to provide adequate supervision “in the context of injuries caused by the acts of fellow students,” it must be demonstrated “that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury;  that is, that the third-party acts could reasonably have been anticipated” (Mirand v. City of New York, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263;  Van Leuvan v. Rondout Val. Cent. School Dist., supra ).   Additionally, both the First and Second Departments have held, and not unreasonably so in our view, that constant supervision of students at the high school level is not required (see e.g. Johnsen v. Carmel Cent. School Dist., 277 A.D.2d 354, 716 N.Y.S.2d 403 [2000];  Convey v. City of Rye School Dist., 271 A.D.2d 154, 159, 710 N.Y.S.2d 641 [2000];  Barretto v. City of New York, 229 A.D.2d 214, 219, 655 N.Y.S.2d 484 [1997], lv. denied 90 N.Y.2d 805, 661 N.Y.S.2d 831, 684 N.E.2d 281 [1997] ).

Guided by these principles, we find that summary judgment was properly granted to defendant.   The record reveals that there was no history of disciplinary problems in the subject homeroom, no history of disciplinary problems with any of the involved students (cf. Wilson v. Vestal Cent. School Dist., 34 A.D.3d 999, 1000, 825 N.Y.S.2d 159 [2006] ) and that plaintiff's injury was the result of a spontaneous and careless prank among high school friends such that defendant could not have reasonably anticipated its occurrence or prevented it (see Henry v. Cobleskill-Richmondville Cent. School Dist., 13 A.D.3d 968, 970, 787 N.Y.S.2d 449 [2004];  Van Leuvan v. Rondout Val. Cent. School Dist., supra;  Moody v. New York City Bd. of Educ., 8 A.D.3d 639, 780 N.Y.S.2d 603 [2004];  Sanzo v. Solvay Union Free School Dist., 299 A.D.2d 878, 750 N.Y.S.2d 252 [2002];  Convey v. City of Rye School Dist., 271 A.D.2d at 160, 710 N.Y.S.2d 641;  Malik v. Greater Johnstown Enlarged School Dist., 248 A.D.2d 774, 669 N.Y.S.2d 729 [1998];  Tomlinson v. Board of Educ. of City of Elmira, 183 A.D.2d 1023, 583 N.Y.S.2d 664 [1992] ).

 As a final matter, plaintiffs' claim that a defect in the door contributed to the injury, a theory raised for the first time in opposition to defendant's motion for summary judgment, was insufficient to bar summary judgment (see Scanlon v. Stuyvesant Plaza, 195 A.D.2d 854, 855-856, 600 N.Y.S.2d 810 [1993] ).

ORDERED that the order is affirmed, without costs.

CARPINELLO, J.

CARDONA, P.J., SPAIN, MALONE JR. and KAVANAGH, JJ., concur.

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