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.