Majority
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated January 28, 2015, as granted that branch of the motion of the defendant Warwick Valley Central School District which was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
On April 8, 2010, when the infant plaintiff was in the seventh grade, he allegedly was assaulted by a fellow seventh-grade student toward the end of an “advisory period,” during which students sought extra help from teachers. In September 2010, the two boys were assigned to the same class in three subjects.
The School District established its prima facie entitlement to judgment as a matter of law dismissing the plaintiffs’ negligent supervision cause of action. “Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Timothy Mc. v Beacon City Sch. Dist., 127 AD3d 826 , 827 [2015]; see Brandy B. v Eden Cent. School Dist., 15 NY3d 297 , 302 [2010]; Nevaeh T. v City of New York, 132 AD3d 840 , 841 [2015]). “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” (Timothy Mc. v Beacon City Sch. Dist., 127 AD3d at 828 ; see David v County of Suffolk, 1 NY3d 525 , 526 [2003]; Mirand v City of New York, 84 NY2d 44 , 49 [1994]; Nevaeh T. v City of New York, 132 AD3d at 841-842 ). “Where the compláint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” (Timothy Mc. v Beacon City Sch. Dist., 127 AD3d at 828 ; see Mirand v City of New York, 84 NY2d at 49 ; Nevaeh T. v City of New York, 132 AD3d at 842 ). “Actual or constructive notice to the school of prior similar conduct generally is required” (Mathis v Board of Educ. of City of N.Y., 126 AD3d 951 , 952 [2015]; see Nevaeh T. v City of New York, 132 AD3d at 842 ). Here, the School District established, prima ■facie, that the alleged assault by the fellow student was an unforeseeable act and that it had no actual or constructive
The School District also submitted evidence sufficient to establish its prima facie entitlement to judgment as a matter of law dismissing the plaintiffs’ negligent infliction of emotional distress cause of action. A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him which unreasonably endangered his physical safety, or caused him to fear for his own safety (see Taggart v Costabile, 131 AD3d 243 , 253 [2015]; Santana v Leith, 117 AD3d 711 , 712 [2014]; Schultes v Kane, 50 AD3d 1277 , 1278 [2008]). Even if the School District was aware that an order of protection had been issued against the fellow student in favor of the infant plaintiff and that the School District was negligent in assigning the two boys to the same three classes for a period of two weeks, approximately five months after the incident, the School District established, prima facie, that this did not unreasonably endanger the infant plaintiff’s physical safety, or cause him to fear for his own safety. In opposition, the plaintiffs failed to raise a triable issue of fact as to this claim (see Alvarez v Prospect Hosp., 68 NY2d at 324 ).
We note that, on appeal, the plaintiffs have abandoned their claim that the School District was negligent in hiring, training, and supervising its employee (see Melious v Besignano, 125 AD3d 727 , 729 [2015]; Hoffman v Colleluori, 85 AD3d 1119 , 1121 [2011]).
The plaintiffs asserted for the first time in opposition to the motion that the School District violated various statutory provisions. “While modern practice permits a plaintiff to successfully oppose a motion for summary judgment by relying on an
Accordingly, the Supreme Court properly granted that branch of the School District’s motion which was for summary judgment dismissing the complaint insofar as asserted against it.
Rivera, J.P., Dillon, Chambers and Dickerson, JJ., concur.
Cases cited
- Brandy B. v. Eden Central School District 15 NY3d 297 at 302 p. 718
- Nevaeh T. v. City of New York 132 AD3d 840 at 841 p. 718
- David v. County of Suffolk 1 NY3d 525 at 526 p. 718
- Mirand v. City of New York 84 NY2d 44 at 49 p. 718
- Mathis v. Board of Education 126 AD3d 951 at 952 p. 718
- Maldari v. Mount Pleasant Central School District 131 AD3d 1019 at 1020 p. 719
- Harrington v. Bellmore- Merrick Central High School District 113 AD3d 727 at 727-728 p. 719
- Jake F. v. Plainview-Old Bethpage Central School District 94 AD3d 804 at 805-806 p. 719
- Morman v. Ossining Union Free School District 297 AD2d 788 at 789 p. 719
- Baez v. City of New Rochelle 128 AD3d 993 p. 719
- Keith S. v. East Islip Union Free School District 96 AD3d 927 at 928 p. 719
- Nocilla v. Middle Country Central School District 302 AD2d 573 at 574 p. 719
- Alvarez v. Prospect Hospital 68 NY2d 320 at 324 p. 719
- Taggart v. Costabile 131 AD3d 243 at 253 p. 719
- Santana v. Leith 117 AD3d 711 at 712 p. 719
- Schultes v. Kane 50 AD3d 1277 at 1278 p. 719
- Hoffman v. Colleluori 85 AD3d 1119 at 1121 p. 719
- Comsewogue Union Free School District v. Allied-Trent Roofing Systems, Inc. 15 AD3d 523 at 524 p. 720
- Balashanskaya v. Polymed Community Care Center, P.C. 122 AD3d 558 at 559 p. 720
- Begley v. City of New York 111 AD3d 5 at 35 p. 720