Upon the foregoing papers, the motion by defendants City of New York (the City) and the New York City Department of Education (the Department of Education) (collectively, defendants) for an order dismissing the complaint against them pursuant to CPLR 3211 (a) (7), or, alternatively, granting summary judgment dismissing the complaint pursuant to CPLR 3212 is granted.

In 2004, plaintiff Adriana Abadia was a 20-year old special needs student attending Public School 753K and working as a volunteer for defendant New York Congregational Nursing Center (the Nursing Center) as part of a vocational training program. In her complaint, plaintiff alleges, among other things, that, on April 20, 2004, she was sexually assaulted by defendants Dwight Watt (Watt) and Raymond Ocasio (Ocasio) in a bathroom at a facility operated by the Nursing Center. Watt and Ocasio were members of Public School 753K's band who came to play at the facility on the day of the incident.

In their motion, defendants point out that plaintiff had never had any problems with Watt and Ocasio prior to the incident in question and that their school records do not [*2]contain any disciplinary history for sexual assaults pre-dating the incident. According to defendants, since there is no evidence that the Department of Education had specific notice that the

assailants had a propensity to commit the assault alleged by plaintiff, defendants argue that the complaint against them should be dismissed. Although defendants concede that Watt was accused of having assaulted a school official several weeks prior to the subject incident, they assert that the previous incident "was not of a sexual nature" and that "mere notice of some prior disciplinary problems is not enough to place the defendants on notice of any and all possible future misconduct." With respect to plaintiff's claims against the City , defendants contend that the complaint against it should, in any event, be dismissed because the Department of Education is a separate and legally distinct entity from the City and the City cannot be held liable in tort for any alleged negligent supervision by the Department of Education or its employees.

In opposition to the motion, the Nursing Center notes that, according to plaintiff's deposition testimony, she was present in the bathroom for one hour prior to the assault and that there was testimony from Department of Education employees that it was their responsibility to supervise the activities of students who were at the facility on any given day. Accordingly, the Nursing Center argues that a question of fact exist as to the adequacy of the supervision provided for student volunteers, such as plaintiff, and members of the band, such as Watt and Ocasio. Insofar as the issue of notice is concerned, the Nursing Center submits a copy of a Department of Education Occurrence Report, dated March 11, 2004, which

reflects that Watt was arrested for an alleged assault upon a school official just six weeks before the assault upon plaintiff. The Nursing Center also proffers a copy of a "Notice Pursuant to CPL 710.30(1)(a)" which indicates that Watt made oral statements to a police officer after his arrest to the effect that he had been suspended eight times from school that year, including three times for fighting.

In her opposition papers, plaintiff maintains that there is no separate entity known as the Department of Education; rather, the Department of Education is a city agency like the Police Department for which the City is responsible. Plaintiff further contends that the supervision exercised by defendants fell far below that of a parent of ordinary prudence in that, among other things, plaintiff and her assailants were allowed to wander unsupervised in the facility for more than an hour. Plaintiff also cites her "particular handicaps and/or problems" and those of her assailants as reasons why defendants should have been more diligent in their supervision.

In reply, defendants argue that the notice regarding oral statements made by Watt to the police should be disregarded because it is not accompanied by an affidavit, nor is it a certified record of a governmental agency. Assuming that the notice were to be considered by this court, defendants assert that notice of an act of violence by a [*3]perpetrator does not put the Department of Education "on specific notice of any act they may commit in the future";

rather, liability only attaches when there is a history of violence between the perpetrator and the victim or where there was notice of problems in allowing plaintiff to work independently for one hour while at the facility.

While the 2002 amendments to the Education Law (L 2002, ch 91) providing for greater mayoral control significantly limited the power of the New York City Board of Education, the City and the Board of Education remain separate legal entities (see Perez v City of New York, 41 AD3d 378 [2007], appeal denied 10 NY3d 708 [2008]). The legislative changes, which substituted the Department of Education for the Board of Education, do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Department of Education and its employees and the City cannot be held liable for those alleged torts (see Corzino v City of New York, 56 AD3d 370 [2008]; Bailey v City of New York, 55 AD3d 426 [2008]). Accordingly, the complaint against the City is dismissed.

While not insurers of the safety of students, 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]). In general, a school's duty is to supervise its students with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances (see Smith v Poughkeepsie City School Dist., 41 AD3d 579, 580 [2007]). To establish a

breach of the duty to provide adequate supervision in a case involving injuries caused by the acts of fellow students, a plaintiff must show that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated (see McLeod v City of New York, 32 AD3d 907, 908 [2006]). Here, evidence submitted by the Nursing Center and by plaintiff, which consists of the alleged student attacker's prior school records, as well as statements he allegedly made to a police officer, would, if admissible, be probative with respect to the issue of whether the alleged attack on plaintiff was foreseeable (see Department of Education v Department of Educ. Of City of New York, 54 AD3d 352, 353-354 [2008]). Assuming, for the sake of argument, that the oral statements made to a police officer by Watt could be considered under the admissions exception to the hearsay rule (see, e.g., Medina v City of New York, 19 Misc 3d 1121 [A] [2008]), the issue is not what he told the police officer (i.e. that he had been suspended eight times that year), but the conduct of which defendants had notice. Whatever Watt might have mentioned to the police officer, the only disciplinary incidents involving Watt which may be considered are those referred to in Exhibit "E" of the motion, which records were produced in response to [*4]a prior order of this court, and only to the extent that the incidents mentioned in the records do not post-date the incident at issue

(see Ramos v City of New York, 24 Misc 3d 1228 [A] [2009]). The disciplinary files for Watt and Ocasio contain reports of only one incident occurring prior to the assault upon plaintiff on April 20, 2004 - - - the arrest of Watt on March 11, 2004 after he allegedly assaulted "Dean Wall when he tried to break him up from fighting a SP male student Melvin McMillan." That single incident was of a dissimilar nature and did not provide a sufficient basis upon which to find that the Department of Education was put on notice of the instant situation (see Morman v Ossining Union Free School Dist., 297 AD2d 788, 789 [2002]; Velez v Freeport Union Free School Dist., 292 AD2d 595, 596 [2002]). Accordingly, the complaint against the Department of Education is likewise dismissed.

The foregoing constitutes the decision and order of this court.

E N T E R,

____________________

Robert J. Miller

J. S. C.