In this action to recover damages for personal injuries, defendant Kaplan, Inc. ("Kaplan") moves for summary judgment pursuant to CPLR 3212 dismissing the claims asserted against it. Plaintiff Renee McCrae, individually and as mother and natural guardian of Zachary McCrae, an infant ("McCrae"), cross moves for costs and sanctions against Kaplan for presenting a frivolous summary judgment motion pursuant to 22 NYCRR §§ 130-1.1(a) and (b).

On December 6, 2004, Zachary McCrae ("Zachary"), age 13, sustained personal injuries as a result of an assault that occurred at the main entrance of Junior High School 45 ("JHS 45"), located at 2351 First Avenue, New York, NY 10035. Zachary was a student in a Kaplan after-school program, which was held in JHS 45 and took place from about 3:10 PM until 5:10 PM on the day of the incident. When Zachary was dismissed from the Kaplan class, he exited the school building and was assaulted by a group of students. Zachary testified that the assailants grabbed him, pushed him against the gate and started kicking him. The assault lasted for about ten minutes until another student intervened and took Zachary back inside the school building.

Kaplan completed a "Permit Application," which was approved on October 27, 2004 and [*2]indicates Kaplan's agreement to "observe all the rules and regulations contained in the S.O.P.M.^[FN1] chapter on Extended Use of School Buildings and to conform to all applicable New York State laws and regulations governing the extended use of school buildings and exercise the utmost care in the use of school premises and property . . . ." Section 5.24 of the S.O.P.M. chapter on Extended Use of School Buildings states:

"[o]rganizations using school premises are responsible for providing appropriate security and supervision of the program activity. The organization must provide appropriate building security at the main door, and supervision in the room or rooms in which the activities are being conducted. This supervision and security shall be provided by a responsible, mature adult."^[FN2]

At the time of the incident, Kaplan did not provide any security personnel outside the school's main entrance. There was, however, a school safety officer assigned to JHS 45 and in the building at the time. Officer Nelson Matute ("Officer Matute") testified at his deposition that on December 6, 2004 he was working at JHS 45 and was aware of the incident involving Zachary. Officer Matute testified that school safety officers have a responsibility to break up fights, even those that occur outside the school building, when the fights occur within a one thousand (1,000) foot perimeter of the school building and when the officers see the fights occur.

When Officer Matute became aware of the incident involving Zachary, he was stationed at the lobby desk, approximately three feet from the door of the main entrance. Just minutes before, he was stationed outside the main door, on the landing steps. Officer Matute testified that he would usually stand outside the main door when students are dismissed. Officer Matute further stated that he learned of the incident when Zachary, while holding his mouth, came inside the school building to report the incident. Officer Matute questioned Zachary and created an incident report. Zachary was then taken to the hospital and was later questioned by the NYPD.

McCrae commenced this action for personal injuries in June of 2005, alleging that Zachary sustained multiple lost and fractured teeth as a result of the incident. On October 24, 2006, Kaplan, joined by McCrae, moved to strike the answer of defendant City of New York ("the City") for failure to comply with court ordered discovery. On November 24, 2006, the City cross moved for summary judgment. McCrae joined Kaplan again in its opposition to the [*3]City's cross motion. On January 25, 2007, Justice Rakower denied the motion to strike and granted the City's cross motion for summary judgment. Kaplan appealed Justice Rakower's decision and on October 9, 2007, the First Department affirmed.

On January 10, 2008, Kaplan took the deposition of Officer Matute pursuant to a "So Ordered" subpoena. In light of Officer Matute's testimony, on June 5, 2008, Kaplan moved to renew the City's cross-motion for summary judgment and also moved for summary judgment dismissing the complaint against it. On August 19, 2008, Justice Rakower adhered to her original decision and denied the motion to renew, holding that Officer Matute's "presence did not relieve Kaplan of its obligation and duty to provide security."

Kaplan appealed Justice Rakower's denial of its' renewal motion. On appeal, the First Department again affirmed, holding that "the documentary evidence establishe[d] prima facie that the City was under no duty to provide security at the time and place of the incident."

Kaplan now moves for summary judgment dismissing the complaint against it, arguing that it did not owe a duty to Zachary, because any duty of supervision or security owed to Zachary ended inside the building at the main door. Kaplan further argues that it did not owe a duty to Zachary because at the time and place of the incident, Zachary was outside of its orbit of authority, such that a parent was free to resume custody over his protection.

Additionally, Kaplan contends that even it did owe a duty to Zachary, it was that of ordinary reasonable care, which it argues was satisfied through Officer Matute's presence in the lobby near the main door. Kaplan also claims that because the Appellate Division found that both the City and Officer Matute did not have a duty to act, Kaplan cannot be said to have owed a greater duty. Finally, Kaplan argues that the attack was not foreseeable as Kaplan had no notice of prior altercations involving the students who caused Zachary's injury and that, in any case, Zachary was the initial aggressor and his actions constitute an intervening superseding cause of the incident.

McCrae opposes Kaplan's motion for summary judgment and cross moves for costs and sanctions against Kaplan, arguing that this motion for summary judgment is frivolous. McCrae argues that one or all of the doctrines of res judicata, collateral estoppel or the law of the case, coupled with the notion that multiple summary judgment motions are disfavored, should prevent Kaplan from prevailing on this motion. McCrae also asserts that the prior motion for summary judgment "was based upon the same evidentiary grounds as the instant motion" and was fully considered and denied.

In the alternative, McCrae argues that if the summary judgment motion is considered, it should not be granted because issues of material fact exist. Finally, McCrae argues that defendant's filing of this motion constitutes frivolous conduct and costs should be awarded and sanctions imposed.

Discussion

Initially, the Court finds that in Kaplan's prior motion for summary judgment, brought in conjunction with Kaplan's motion to renew, Justice Rakower did not specifically address the issues raised in this summary judgment motion. Thus, the motion is not barred by the law of the case doctrine. See McCrae v. Kaplan, No. 108238/05, (Sup. Ct. NY Co. Aug. 19, 2008) (J. Rakower). The Court therefore addresses the issue of summary judgment on the merits.

A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof offered [*4]must be in admissible form. Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065 (1979). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). The papers submitted in support and in opposition to a summary judgment motion are examined in the light most favorable to the party opposing the motion. Martin v. Briggs, 235 AD2d 192, 196 (1st Dep't 1997). Mere conclusions and unsubstantiated allegations are insufficient to defeat a summary judgment motion. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). A motion for summary judgment must be denied if there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978).

The parties center their arguments on the duty that schools have to adequately supervise the students in their charge and the notion that they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. See Mirand v. City of New York, 84 NY2d 44, 49 (1994). This reliance is misplaced. Here, Kaplan is not a school entity and, therefore, it does not owe Zachary the same duty that schools owe students. In its verified complaint, however, McCrae alleges that Zachary was placed in the care of Kaplan, pursuant to Kaplan's contract with the Board of Education. Kaplan's duty, then, is a contractual one that is defined by Kaplan's permit from the Board of Education to use the school premises for its after school program.

"[A] permittee with a contractual obligation to provide security has a common law duty to take minimal precautions to protect . . . users of the facility from foreseeable harm, including the criminal conduct of third parties . . . ." Florman v. City of New York, 293 AD2d 120, 124 (1st Dep't 2002). "This duty arises only when such party knows or has reason to know that there is a likelihood that third persons may endanger the safety of those lawfully on the premises," such as when the . . . permittee is aware of prior criminal activity on the premises." Florman, 293 AD2d at 124 (internal citations and quotation marks omitted). "While it is not necessary to show that the prior criminal conduct is of the same type or that it occurred in the same location, a plaintiff must make a showing that the incident was foreseeable." Florman, 293 AD2d at 126.

In an action premised on inadequate security, the plaintiff must also establish that inadequate security was a proximate cause of the injuries sustained, Florman, 293 AD2d at 126, and "demonstrate that the defendant breached this duty by failing to provide minimal precautions against the foreseeable criminal acts of third parties." Tyler v. Dewey's Inc., No. 117213/06, 2009 WL 606293, at *5 (Sup. Ct. NY Co. March 4, 2009). "The issue of what safety precautions may be reasonably required is almost always' a question of fact for the jury." Tyler, No. 117213/06, 2009 WL 606293, at *5 (internal citations omitted).

Here, it is clear from Section 5.24 of the S.O.P.M. chapter on Extended Use of School Buildings, as well as the previous ruling of the Court (Justice Rakower) that Kaplan had a contractual duty to provide security. McCrae v. Kaplan, No. 108238/05, (Sup. Ct. NY Co. Aug. 19, 2008) (J. Rakower) (holding that the presence of School Safety Officer Matute did not relieve Kaplan of its obligation to provide security).

Based on its contractual obligation to provide security, Kaplan had a common law duty to take minimal precautions to protect users of the facility from foreseeable harm, including the criminal conduct of third parties, as long as it knew or had reason to know that there was a likelihood that third persons may have endangered the safety of those lawfully on the premises. Kaplan submitted an affidavit from Vishal Pittamplli ("Pittamplli"), the Site Coordinator for [*5]Kaplan's afterschool program at JHS 45. Pittamplli stated that he was: (1) unaware of any threats made by anyone against Zachary; (2) unaware of the violent propensities of the alleged assailants; and (3) would have been made aware of any known threats made against students or violent propensities of students (Pittamplli Affidavit, Exhibit N to Kaplan's Notice of Motion).

Assuming the veracity of Pittamplli's statements, whether Kaplan knew about specific prior acts or violent propensities of the assailants is not determinative. See Florman, 293 AD2d at 126 (holding "it is not necessary to show that the prior criminal conduct is of the same type or that it occurred in the same location"). The inquiry is centered on whether the permittee was aware or should have been aware of any prior criminal activity or the possibility that third persons could endanger the safety of those lawfully on the premises. Florman, 293 AD2d at 124. Here, there is a question of fact as to whether Kaplan had reason to know about the safety issues presented at the premises and the likelihood of danger presented when teenage students were all exiting the school building at the end of a long school day and afterschool program.^[FN3]

Next, is the question of whether McCrae has demonstrated that Kaplan failed to provide minimal precautions against the foreseeable criminal acts of third parties. Steven Kopp ("Kopp"), a Kaplan employee, testified that Kaplan did not contract with anyone to provide security at JHS 45 in December 2004 (Kopp: 38). Kopp also testified that Kaplan provided part-time on site management to help with supervision, but that site coordinators and teachers shared the responsibility of supervising students in the classroom (Kopp: 12-13). Kopp testified that the only supervision protocol during dismissal was that students were escorted to the exit (Kopp: 15).

Based upon the foregoing, there is clearly a question of fact as to whether Kaplan's failure to provide any of its own security personnel and to provide only part-time, on site coordinators for an afterschool program with groups of teenagers was reasonable under the circumstances. See Tyler, No. 117213/06, 2009 WL 606293, at *6.

On the issue of proximate cause, Kaplan argues that Zachary was the initial aggressor and his actions, which they contend involve slapping one of the alleged assailants, constitutes an intervening superseding cause of the incident. McCrae argues that Zachary's initial actions were intended as a joke and therefore, cannot constitute an attempt to initiate a fight.

Zachary testified at his deposition that in the moments before the incident, he was joking around with one student, Ramon Witfield ("Witfield"). Zachary tapped him on the face because Witfield had tapped Zachary on the face earlier in the day. At this time, Witfield was accompanied by his friends, who interpreted Zachary and Witfield's joking around as a serious matter, and proceeded to "jump" Zachary as a result (Zachary: 329). Kaplan argues that Zachary slapped Witfield in the face, choosing to start a fight. Zachary testified that he and Witfield were "playing" and that Witfield's friends, who were fellow students, attacked him. Therefore, questions of fact also exist as to who initiated the fight. [*6]

In sum, Kaplan has failed to establish a prima facie showing of entitlement to judgment dismissing the complaint as a matter of law. Questions of fact remain as to whether: (1) Kaplan knew or had reason to know about the safety of the premises and the likelihood of danger presented to students; (2) Kaplan's failure to provide security and its provision of part-time, on site coordinators was reasonable; and (3) the inadequate security was a proximate cause of the McCrae's injuries.

McCrae cross moves for costs and sanctions, arguing that defendant's motion for summary judgment is frivolous. There is no ground for an award of costs or sanctions. The Court finds that Kaplan's summary judgment motion is not frivolous nor undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another. See 22 NYCRR §§130-1.1; 130-1.2; Brunson v. Reilly, 71 AD3d 470 (1st Dep't 2010).

In accordance with the foregoing, it is

ORDERED that defendant Kaplan, Inc.'s motion for summary judgment is denied and it is further

ORDERED that the plaintiff Renee McCrae's motion for costs and sanctions is denied.

This constitutes the decision and order of the court.

Dated:New York, New York

May 4, 2010