Legal Question in Personal Injury in New York

Yes, you probably have a case. I have had great sucess with these types of cases in the past. Below, I have cut and pasted a decision from the Appellate Court on a similar case I handled where the judge dismissed the case and I got it reinstated on appeal. The critical issue is whether the school or bus company had prior complaints about the girl, which you made. The other issue is whether the damages warrant the costs of a lawsuit. If this is a public school, you must file a Notice of Claim within 90 days of the incident to preserve your right to sue. Please feel free to check out my web site and contact me.

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Smith v Poughkeepsie City School Dist.

2007 NY Slip Op 05256 [41 AD3d 579]

June 12, 2007

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law � 431.

As corrected through Wednesday, August 15, 2007

Kaila Smith, Appellant,

v

Poughkeepsie City School District, Respondent.

�[*1] Brecher Fishman Pasternack Popish Heller Reiff & Walsh, P.C., New York, N.Y. (Eric E. Rothstein of counsel), for appellant.

O'Connor, McGuiness, Conte, Doyle & Oleson, White Plains, N.Y. (Elizabeth Holmes of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated May 16, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

On November 26, 2001 at about 2:50 p.m. the infant plaintiff, Kaila Smith, was punched in the left eye three times by a fellow seventh-grade student, Deseana Borkine, in the second floor hallway after her last class at the Poughkeepsie Middle School. It is alleged that there were no teachers or security monitors in the hallway at the time of the incident.

The infant plaintiff testified that about a month before the attack, she had complained to her music teacher about Borkine's bullying behavior. The infant plaintiff's mother also testified that, prior to the incident, she discussed her concerns for the infant plaintiff's safety with the teacher and the principal of the school, Thomas Hartford. As a result of the attack, Borkine, who had just [*2]returned from a prior five-day suspension for a similar violent episode against another student in the same hallway, was once again suspended for five days.

As a result of the incident, the infant plaintiff commenced this action against the defendant Poughkeepsie City School District in 2003 alleging, inter alia, negligent supervision. The defendant moved for summary judgment dismissing the complaint contending, inter alia, that the incident could not have been prevented even by the most intense supervision. The Supreme Court granted the motion. We reverse.

"Schools 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 NY2d 44, 49 [1994]; see Shante D. v City of New York, 83 NY2d 948, 950 [1994]; Siller v Mahopac Cent. School Dist., 18 AD3d 532, 533 [2005]). "In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could reasonably have been anticipated" (Mirand v City of New York, supra at 49; see Wood v Watervliet City School Dist., 30 AD3d 663 [2006]; McElrath v Lakeland Cent. School Dist., 18 AD3d 831, 832 [2005]).

In support of its motion for summary judgment dismissing the complaint, the defendant failed to establish, as a matter of law, that it lacked sufficiently specific knowledge or notice of the dangerous conduct which caused the injury (see Hernandez v City of New York, 24 AD3d 723 [2005]). The defendant failed to present any evidence to establish that the second floor hallway was being monitored in any way by a member of the school staff or its assigned police officer on the day of the incident, despite the fact that school records reveal that numerous assault and battery incidents took place during school hours. Courts have consistently recognized in similar situations that dismissal is a time when supervision is necessary due to congregation of large numbers of students and the increased likelihood of fights (see Mirand v City of New York, supra at 50-51; Shoemaker v Whitney Point Cent. School Dist., 299 AD2d 719 [2002]).

Moreover, there are issues of fact as to whether the defendant had knowledge of Borkine's dangerous propensities as a result of her involvement in similar altercations with classmates in the recent past (see Wood v Watervliet City School Dist., supra at 664; Speight v City of New York, 309 AD2d 501 [2003]), and prior complaints by the infant plaintiff and her mother about Borkine's bullying behavior (see McElrath v Lakeland Cent. School Dist., supra at 832; Druba v East Greenbush Cent. School Dist., 289 AD2d 767, 768 [2001]). Under the totality of the circumstances, triable issues of fact exist warranting the denial of summary judgment as to liability (see McLeod v City of New York, 32 AD3d 907, 909 [2006]; Hernandez v City of New York, supra at 723).

Finally, in light of the conflicting medical expert opinions submitted by the parties, a triable issue of fact also exists as to whether the subject incident played any role in the onset of the infant plaintiff's disorder. Crane, J.P., Ritter, Lifson and Balkin, JJ., concur.

In my view, the eye injury, happily, does not sound serious enough to merit a Supreme Court lawsuit. However, I recommend you write to the school and bus company, describing this incident, and the others before it, and mail it certified mail, return receipt requested, to both. Keep a copy, of course. If there is another incident, you will have provided irrefutable notice of the problem in advance. Best, M. E. Zuller

I am sorry for your terrible ordeal. It appears that you may have a claim for negligent supervision (among other claims) against the City of New York, Department of Education and/or the Board of Education. The difficult issue in these types of claims is whether the school had prior notice. The second element to contend with is your son's injury and how serious it is.

Suing the City of New York and the Department of Education is complex and costly in a negligent supervision claim like this one. It is critical that you hire lawyers with experience in municipal law and negligent supervision cases. No fee to us unless we win your case first.

Contact me, Pasquale Calcagno, Esq., for a free, no-obligation consultation at 1(800)WE-FIGHT or visit us on the web at www.1800wefight.com. We are experienced in suing the City of New York and the Department Education in negligent supervision cases.

We have convenient locations all over New York and can even have an attorney come to you for a free consultation. I look forward to speaking with you and fighting hard for your families rights.