RAMO v. St. Anthony's High School, Appellant.

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

Christopher RAMO, et al., Respondents, v. Jose SERRANO, et al., Defendants, St. Anthony's High School, Appellant.

Decided: January 27, 2003

GABRIEL M. KRAUSMAN, J.P., WILLIAM D. FRIEDMANN, WILLIAM F. MASTRO and REINALDO E. RIVERA, JJ. Patrick F. Adams, P.C., Bay Shore, N.Y. (Charles J. Adams and Vito A. Cardo III of counsel), for appellant. Vitacco & Vitacco, Elmhurst, N.Y. (Guy R. Vitacco of counsel), for respondents.

In an action, inter alia, to recover damages for personal injuries, the defendant St. Anthony's High School appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated February 6, 2002, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant St. Anthony's High School, and the action against the remaining defendants is severed.

On October 9, 1996, at approximately 8:10 A.M., the infant plaintiff, a 17-year-old senior at the defendant St. Anthony's High School (hereinafter St. Anthony's), allegedly sustained serious injuries when he was involved in an automobile accident with the defendant Jose Serrano.   At the time of the accident, the infant plaintiff was driving his father's motor vehicle to Melville Bowl (hereinafter the bowling alley) to participate in a gym class.   The gym class, which was scheduled to begin at 8:20 A.M., was the infant plaintiff's first class of the day.   The infant plaintiff was not required to report to the school before going to the bowling alley.   School attendance was to be taken at the bowling alley.

The infant plaintiff and his father Stephen Ramo commenced this action against, among others, St. Anthony's.   St. Anthony's moved for summary judgment dismissing the complaint insofar as asserted against it.   The Supreme Court denied St. Anthony's motion.   We reverse.

 Before a defendant may be held liable for negligence, it must be shown that the defendant owed a duty to the plaintiff (see Strauss v. Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34;  Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019;  Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99;  Lugo v. Brentwood Union Free School Dist., 212 A.D.2d 582, 583, 622 N.Y.S.2d 553;  Anderson v. Carbonaro, 133 A.D.2d 92, 518 N.Y.S.2d 358).   A school's duty “is strictly limited by time and space” and exists “only so long as a student is in its care and custody during school hours” (Norton v. Canandaigua City School Dist., 208 A.D.2d 282, 285, 624 N.Y.S.2d 695), or if a specific statutory duty has been imposed (see Chainani by Chainani v. Board of Educ. of City of N.Y., 87 N.Y.2d 370, 639 N.Y.S.2d 971, 663 N.E.2d 283;  Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849;  Womack v. Duvernay, 229 A.D.2d 488, 645 N.Y.S.2d 831).   The school's duty is coextensive with and concomitant to its physical custody of and control over the child (see Pratt v. Robinson, supra at 560, 384 N.Y.S.2d 749, 349 N.E.2d 849;  see also Mirand v. City of New York, 84 N.Y.2d 44, 49-50, 614 N.Y.S.2d 372, 637 N.E.2d 263;  Reed v. Pawling Cent. School Dist., 245 A.D.2d 281, 664 N.Y.S.2d 483).

 St. Anthony's established its entitlement to summary judgment (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In opposition, the plaintiffs did not raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The infant plaintiff was not under the physical custody and control of St. Anthony's when the accident occurred (see Silver v. Cooper, 199 A.D.2d 255, 256, 604 N.Y.S.2d 968).   Since the accident occurred before school hours, St. Anthony's owed no duty to the infant plaintiff (Phillipe v. City of New York Bd. of Educ., 254 A.D.2d 339, 678 N.Y.S.2d 662).   Accordingly, summary judgment should have been granted to St. Anthony's.

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