New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Regis v. Condoleo

Plaintiff Naomi Regis is seeking to recover damages from the defendant youths, Antonio Condoleo, Christian Wright and Donald Schumacher and their parents for injuries she sustained when she was struck in the face by a model rocket while stopped at a stop sign in Freeport, New York. Plaintiff Marie Regis is seeking to recover damages for property damage to her vehicle which Naomi was operating at the time of the accident.

The parents of the youths seek summary judgment dismissing the complaints against them holding them responsible for the actions of their children. Since there was no evidence to prove that any of the parents were aware of their sons having violent predispositions nor did any of them supply the defendants with the model rocket engines, sparklers, or lighters, the parents were granted their motions for summary judgment.

In the three youths examinations before trial, different stories were told and some issues of fact exist regarding the exact sequence of events. It is undisputed that Antonio brought the model rocket/firework devices but it is unclear as to who supplied the sparkler and lighter used to light the model rocket engine that injured the plaintiff. Defendants Christian and Donald claim that their only involvement was to supply the sparklers and the lighter and that they had no part in the actual setting off of the model rocket which struck the plaintiff. Whether or not Antonio acted alone in setting off the model rocket using equipment supplied by Christian and Donald or whether the three youths acted in concert is an issue for the trier of fact to resolve.

Accordingly, the Court denied the motions to dismiss the complaints against Defendants Christian and Donald.

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Matter of Monfort v Rockville Centre Union Free School District

Infant petitioner was running laps around the track at South Side High School in Rockville Centre during a girls’ varsity lacrosse team practice when she was allegedly “blind-sided by a flying discus”. Petitioner was seeking to impose liability on the school district based on a theory of inadequate supervision. She was granted her petition for permission to serve a late notice upon the District in November 2007. This decision was then appealed.

The infant petitioner failed to submit an affidavit with all the facts in a timely fashion and instead only provided her attorney’s affirmation. The petition was not backed up by any testimony or evidence to prove that the District was aware of the facts of the claim within 90 days of the accident.

Accordingly, the Court ordered the judgment reversed, with costs, and denied the petition.

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Rosenthal v Arlington Central School District

Defendant moved for summary judgment dismissing plaintiff’s complaint against school for an alleged injury on school grounds. The infant plaintiff was allegedly injured while participating in a baseball game during gym class. The students were playing with a foam-like ball and a foam bat with a plastic handle. While waiting in line, plaintiff was struck in the nose by a bat that another student let go of while swinging. Plaintiff was in a designated safety zone surrounded by orange safety cones located 25 feet away from the batter.

A teacher’s duty is to supervise his or her student’s by exercising the same care as a parent would in similar circumstances. The defendant took reasonable and prudent measures to ensure the safety of the children engaged in this physical activity by providing students with foam equipment and having them wait in a safety zone until it was their turn to bat. The plaintiffs failed to establish any triable issues of fact. No evidence shows that the school district and supervising teachers failed to exercise the appropriate level of care nor that the safety precautions taken were inadequate.

Accordingly, the Supreme Court granted defendant’s motion for summary judgment and dismissed the plaintiffs’ complaint.

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Diana Hallock v Riverhead Central School District

Defendant appealed an order from Supreme Court denying its motion for summary judgment dismissing the complaint, an action to recover damages for personal injuries sustained on a school bus and at school. The defendant established its entitlement to judgment by submitting evidence proving no actual or constructive notice or knowledge of alleged misconduct on the school bus and at the school. Plaintiffs failed to prove that school authorities had specific knowledge of the dangerous conduct with caused the injury.

Accordingly, the Supreme Court reversed the order and granted defendant’s motion for summary judgment dismissing the complaint.

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Fernandez v. City of New York

Defendant, Rite Aid, moved for an order dismissing plaintiff’s slip and fall complaint, alleging that the City of New York was on notice of the broken sidewalk and should be responsible for fixing it.

Administrative Code of NYC states that the property owner is responsible for maintaining the sidewalk in a safe condition. In order for the city to be liable for a defective sidewalk, they must have caused and created the defective condition that caused the plaintiff’s accident. Rite Aid employed trial testimony of a supervisor for the NYC Department of Environmental Protection who stated that the condition of the sidewalk appeared to be a result of a fire hydrant malfunctioning or leaking.

Rite Aid failed to provide any evidence that definitively proves that the City is responsible for the alleged defect under the theory of cause and create. They also failed to establish the City’s affirmative negligence and that the condition alleged caused the sidewalk to immediately break and not simply erode over time. Also Rite Aid failed to demonstrate that the sidewalk in proximity to the fire hydrant falls within the special use exception.

Accordingly, the Supreme Court denied the motion for summary judgment.

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Munoz v City of New York

Plaintiff, New York City Police Officer Andres Munoz alleged that his police car was stuck by Defendant, Washington Vera, when responding to an emergency. Defendant, Petrocelli Electric Co., Inc. moved for summary judgment claiming that no issues of triable fact exist.

Vera entered into the intersection while the light was red due to the traffic light having a history of malfunctioning. The issue then becomes whether or not the malfunctioning traffic light is the proximate cause of the plaintiff’s injuries. The Court, though the City and Petrocelli retain responsibility for maintaining properly functioning traffic lights, finds that the malfunction of the light at the time of the accident was not the proximate cause of plaintiff’s injuries.

Accordingly, the Supreme Court ordered that the motions for summary judgment by the City and Petrocelli are granted and the complaint and cross claims dismissed.

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S.K. v. City of New York

Index No. 2131/01

Defendants move for an order dismissing plaintiff’s complaint pursuant to CPLR §§3211 and 3212.

Plaintiff, SK, was injured during a fight with LC, a fellow student at the end of gym class on October 20, 1999. The blow to SK’s head resulted in a hemorrhage of a latent congenital vascular malformation resulting in approximately ten brain surgeries. Plaintiff alleges that the New York City Board of Education was aware of plaintiff’s history of abuse by fellow students, including LC, and that the Board was negligent in supervising the students, did not take the necessary steps to protect plaintiff, and ignored the requests of plaintiff’s father to transfer plaintiff to a safer school.

Defendants move for summary judgment on the grounds that the plaintiff was a voluntary participant in the fight, the Board had no reason to consider LC a threat because he has no prior history of violence, and plaintiff’s allegations of prior incidents do not raise a triable issue of fact. Additionally, pursuant to the New York Education Law and the New York City Charter, the city of New York is not a proper party to this action.

The court accepts as true the evidence provided by the plaintiff and therefore a triable issue of facts exists as to whether the Board, in light of the alleged specific knowledge it had that the plaintiff had previously been targeted by classmates, should have provided supervision of plaintiff or taken other steps to ensure plaintiff’s safety during school hours. As for whether plaintiff was a voluntary participant in the fight or simply acting in self-defense, the court feels it is up to a jury to decide.

The defendant’s motion for summary judgment dismissing the complaint is granted as to the City of New York because the City cannot be held liable for torts allegedly committed by the Board of Education and its employees. The motion is denied as to the Board of Education of the City of New York.

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