BOWERS v. CITY OF NEW YORK

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

Timothy BOWERS, etc., et al., Appellants, v. CITY OF NEW YORK, et al., Respondents, et al., Defendant.

Decided: May 28, 2002

SANDRA J. FEUERSTEIN, J.P., CORNELIUS J. O'BRIEN, THOMAS A. ADAMS and BARRY A. COZIER, JJ. David A. Kapelman, P.C., New York, N.Y. (Stephen D. Chakwin of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Grace Goodman of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 4, 2001, which granted the cross motion of the defendants City of New York and Board of Education of the City of New York for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and denied their motion, inter alia, to strike the answer of the defendants City of New York and Board of Education of the City of New York pursuant to CPLR 3126.

ORDERED that the order is affirmed, with costs.

 On the afternoon of October 30, 1996, approximately 15 minutes after he was dismissed from school, the infant plaintiff was waiting for a public bus at a nearby bus stop when some students started to throw eggs.   In response, the infant plaintiff ran from the sidewalk out into the street, where he was struck by a vehicle.

 Generally, a school's duty to adequately supervise a student ends when it relinquishes physical custody and control of the student (see Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849;  Bertrand v. Board of Educ. of City of N.Y., 272 A.D.2d 355, 707 N.Y.S.2d 218;  Winter v. Board of Educ. of City of N.Y., 270 A.D.2d 343, 344, 704 N.Y.S.2d 142).   Consequently, when a student is injured off school premises, “the school cannot be held liable for the breach of a duty that extends only to the boundaries of school property” (Bertrand v. Board of Educ. of City of N.Y., supra).

The respondents established their prima facie entitlement to judgment as a matter of law by demonstrating that the injured plaintiff was safely dismissed from the school premises approximately 15 minutes before the accident, which occurred beyond the boundaries of school property.   In opposition, the plaintiffs failed to present sufficient evidence to raise any triable issue of fact.

The plaintiffs did not establish that the respondents owed them any special duty of protection (see Vitale v. City of New York, 60 N.Y.2d 861, 863, 470 N.Y.S.2d 358, 458 N.E.2d 817;  Meyers v. Board of Educ. of City of N.Y., 260 A.D.2d 557, 688 N.Y.S.2d 623;  Varghese v. Sewanhaka Cent. High School Dist., 260 A.D.2d 573, 574, 688 N.Y.S.2d 643).   Under the circumstances, the Supreme Court properly granted summary judgment in favor of the respondents.

The plaintiffs' remaining contentions are without merit.

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