The Defendant Roosevelt U.F.S.D. ("School District") moved by Notice of Motion for an Order granting them Summary Judgment pursuant to CPLR §3212. The Plaintiff opposes the Motion and filed an Affirmation in Opposition on July 19, 2007.

Plaintiff commenced this action for injuries allegedly sustained on November 9, 2004, at 7:30 A.M. at Roosevelt Junior Senior High School, Roosevelt, NY Roosevelt Junior Senior High School is one of the schools within the Roosevelt School District. Plaintiff was a security officer who had been trained in that occupation (see Exhibit C, pgs. 19-20 annexed to School District's motion). Plaintiff came upon a verbal altercation between two young ladies. Plaintiff stepped in between them (p. 70) and while physically restraining one girl against the lockers, the plaintiff was attacked from behind. He sustained an injury to his eye (pgs. 72, 73, 81 and 82). Plaintiff states he had no prior problems with the restrained young lady or the plaintiff's attacker (p. 84).

Catalina Castillo, an assistant principal, stated that the attack on the plaintiff from behind happened very quickly (see Exhibit F, pgs. 26, 28 annexed to School District's motion). The School District contends it owed no special duty to plaintiff, an experienced security guard, and it cannot be responsible for the sudden, unexpected attack on the plaintiff by the student.

To establish a special duty of protection, a party must show the assumption by the public entity through promises or action, of an affirmative duty to act on behalf of the injured party, knowledge on the part of the municipality that inaction could lead to the harm of the plaintiff, some form of direct contact between the municipality and the injured plaintiff, and the injured plaintiff's justifiable reliance on the municipality's affirmative action see Basher v City of New York, 268 AD2d 546 (2d Dept. 2000), lv to app den. 95 NY2d 759 (2000). The mere implementation of security measures at a high school does not give rise to a special duty see Dickerson v City of New York, 258 AD2d 433 (2d Dept. 1999).

The School District's act of having security guards did not create a special duty to protect the plaintiff, a security guard. There is no indication that the security guards were hired specifically to protect the plaintiff, (or each other) or a limited class of which the plaintiff was a member, see Blanc v City of New York, 223 AD2d 522 (2d Dept. 1996); Salmond v Board of Education, 131 AD2d 829 (2d Dept. 1987).

The adoption of a security plan does not warrant a finding that the plan was designed or intended specifically for the plaintiff's benefit. The plaintiff did not become a beneficiary of the [*2]security plan because some personnel (teachers, security guards, etc.) played a role in the plan. Teachers with a role to play in the implementation of a security plan do not by virtue of their role become special beneficiaries of the plan. See Vitale v City of New York, 60 NY2d 861 (1983).

A "special duty" involves a promise of protection to a particular citizen as opposed to the population at large, see Cuffy v City of New York, 69 NY2d 255 (1987). Plaintiff has not set forth or shown that a "special relationship" existed between the plaintiff and the School District, see Shinder v State of New York, 62 NY2d 945 (1984); Dickerson v City of New York, supra.

Here, the record is devoid of the School District assuming an affirmative duty that generated justifiable reliance by the plaintiff, see Cuffy v City of New York, supra.

There is no evidence on the record that the plaintiff relied on school personnel or school security to protect him, see France v New York City Board of Education, 40 AD3d 268 (1st Dept. 2007).

The School District has demonstrated prima facie that summary judgment is appropriate in ths case because it established it owed no special duty to the plaintiff, and the plaintiff failed to raise a triable issue of fact, see Reynolds v Central Islip Union Free School District, 300 AD2d 292 (2d Dept. 2002).

Plaintiff contends that the principal Mrs. Vaughn-Shavou should have helped or aided the plaintiff, or called for backup. In his affidavit (see Exhibit A annexed to plaintiff's affirmation in opposition), plaintiff contends the incident lasted three (3) minutes, which was enough time for the principal, who plaintiff alleged was in his vicinity, to act.

A party cannot raise an issue of fact by submitting in opposition to a summary judgment motion, an affidavit that contradicts prior deposition testimony, see Pino v Korn, 248 AD2d 520 (2d Dept. 1998).

Plaintiffs testified that Principal Vaughn-Shavou was only listening to students and not restraining them when plaintiffs arrived at the scene (Exhibit C, pg. 67-68 annexed to defendant's motion). In his affidavit, the plaintiff stated when he arrived on the scene (see Exhibit A, p. 3 annexed to plaintiff's affirmation in opposition) Principal Vaughn-Shavou was already engaged in keeping the students apart, i.e., things were about to erupt.

At his deposition, plaintiff stated, "all of a sudden, things changed"(Exhibit C, pg. 70). In his affidavit, the plaintiff claimed it took three minutes from restraint to injury (Affidavit, pg. 4). Plaintiff's affidavit is dated July 18, 2007. His deposition was taken June 9, 2005. The defendant School District's motion is dated May 4, 2007.

The plaintiff's affidavit is in conflict with his deposition testimony. As noted by the defendant, if the School District failed to follow its own operating procedure, i.e., teachers/administrators should assist security guards, this does not establish a duty of special protection to a plaintiff, see Vitale v City of New York, supra.

As to plaintiff's contention that Principal Vaughn-Shavou stood-by watching plaintiff secure the student for three minutes while doing nothing when plaintiff was attacked, the Court finds this unsupported by plaintiff's own deposition testimony wherein he testified that he could not see what Vaughn-Shavou was doing (Exhibit C, pg. 76, 81 annexed to District's motion). Vaughn-Shavou testified that her back was to plaintiff at the time of the incident, i.e., the attack on plaintiff (see Exhibit E, pg. 73-74 annexed to District's motion).

Plaintiff's expert affidavit (see Exhibit B annexed to plaintiff's affidavit in opposition), [*3]must be rejected since it was offered for the first time after certification that discovery was complete see Soldano v Bayport-Bluepoint U.S.F.D., 29 AD3d 891 (2d Dept. 2006).

Also, the affidavit is purely speculative and conclusory where no specific standards or regulations are cited, see Speirs v Dick's Clothing & Sporting Goods, Inc., 268 AD2d 581 (2d Dept. 2000) and there is no evidentiary base or foundational facts set forth see Miller v National Cabinet Co., 8 NY2d 277 (1960); Kracker v Spartan Chemical Co., Inc., 183 AD2d 810 (2d Dept. 2000).

The injury caused by the impulsive, unanticipated act of a student will not ordinarily give rise to a finding of negligence on the part of a school absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury causing act, see Johnsen v Carmel Central School District, 277 AD2d 354 (2d Dept. 2000).

Here, the credible record shows the incident happened so suddenly that no amount of supervision could have prevented it, see Cranston v Nyack Public Schools, 303 AD2d 441 (2d Dept. 2003).

Where an incident occurs in such a short time span that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury and summary judgment in favor of the school district is warranted see Mayer v Mahopec Central School District, 29 AD3d 653 (2d Dept. 2006).

The plaintiff has failed to establish that the District assumed a special duty to him see Bonner v City of New York, 73 NY2d 930 (1989) or that the School District failed to use proper supervisory care.

Accordingly, the Defendant's motion, pursuant to CPLR §3212 is GRANTED and the Plaintiff's Complaint is Dismissed.

This constitutes the Decision and Order of the Court.

DATED: September 14, 2007

Mineola, NY

ENTER: ____________________________________

HON. MICHELE. M. WOODARD, J.S.C.

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