On April 26, 2010, plaintiff, who was then a fifteen year old student attending the Henry Street School in New York, NY, was exiting the school with a group of students and teachers to attend a field trip. While the group walked away from the school towards the subway plaintiff was approached by several young men that were not part of the group and did not attend his school. Plaintiff was assaulted by these young men; he was slashed in the face and sustained other injuries. Plaintiff brought suit against defendants the City of New York and the New York City Department of Education for inadequate supervision and negligent hiring, training, and retention. Defendants moved to dismiss the action pursuant to CPLR § 3211, or in the alternative, for summary judgment pursuant to CPLR § 3212. Plaintiff cross-moved for sanctions pursuant to CPLR § 3216 as he claimed the defendants improperly permitted a relevant surveillance video to be taped over. The decision and order on the motion and cross-motion is as follows:

At the outset, the defendants argued that the City of New York is not a proper party to this action and that the action as against it should be dismissed. The City of New York and the Department of Education are separate legal entities and the City of New York cannot be held liable for damages arising from torts allegedly committed by the Department of Education and its employees (see Perez v City of New York, 41 AD3d 378, 379 [1st Dept 2007]). Therefore, the action is dismissed as against the City of New York and the action is continued as against the Department of Education only (hereafter referred to as "the DOE").

The DOE argued that this action must be dismissed as plaintiff failed to plead that the DOE owed him a special duty of protection. Plaintiff conceded that he did not plead a special duty and, at oral argument, requested leave to amend his pleadings if this court found such a pleading were necessary.

Pursuant to CPLR § 3211, the court must accept the facts alleged as true from the four corners of the complaint, affording it liberal construction and according plaintiff the benefit of all favorable inferences to determine whether the facts alleged sufficiently state a cause of action (see Rovello v Orofino Realty Co., 40 NY2d 633 [1976]). Whereas, pursuant to CPLR § 3212, a movant seeking summary judgment must make "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). It is well settled that summary judgment may not be granted where there is any doubt as to the existence of a triable issue (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]), or where the existence of an issue is arguable (see Sillman v. Twentieth Century—Fox Film Corp., 3 NY2d 395, 404 [1957]). Summary judgment motions are viewed in the light most favorable to the party opposing the motion (see Martin v Briggs, 235 AD2d 192, 196 [1st Dept 1997]).

"Separate and distinct from a municipality's provision of police or school guard protection, is a duty owed by a school to its students, which stems from the fact of its physical custody over them . . . by taking custody of the child a school has deprived the child of the protection of [the child's] parents or guardian" (Logan v City of New York, 148 AD2d 167, 171 [1st Dept 1989][internal quotations omitted]). "[I]t is the well-settled law of this State that a school board, while not an insurer of their safety, has an unqualified and mandatory duty to supervise the activities of the students in its charge." (Shante D. by Ada D. v. City of New York, 190 AD2d 356, 361 [1st Dept 1993]). Thus, plaintiff need not augment his pleadings to include a special duty here where he claimed negligent supervision.

The DOE further argued this action must be dismissed as the actions taken against plaintiff here were not foreseeable but sudden and spontaneous. It relied on Mirand v City of New York, 84 NY2d 44, 49 (1994), where the Court of Appeals made clear that "[s]chools 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". The Mirand Court further stated that "[s]chools are not insurers of safety . . . for they cannot reasonably be expected to continuously [*2]supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another" (id [internal citations omitted]). The DOE argued that it is not responsible for the unanticipated criminal actions taken against its students.

The DOE further cited several cases to demonstrate that the school must have specific knowledge of prior similar acts to impose liability: Edwards v City of Mount Vernon, 230 AD2d 821 (2d Dept 1996)(where a student was shot by an unknown assailant while on school grounds); Doe v Town of Hempstead Bd. of Educ., 18 AD3d 600 (2d Dept 2005)(where a student was raped by a non-student in a school bathroom); and Nossoughi v Ramapo Cent. School Dist., 287 AD2d 444 (2d Dept 2001)(where a student was assaulted in the school by a trespassing former student after regular school hours). In those matters the Second Department stated that without forseeability of these particular criminal acts no liability on behalf of the school could be imposed.

However, the facts before this court are distinguishable. In those cases cited by the DOE, the incidents occurred on school property. In the present matter, the students were off school grounds, albeit still nearby, and chaperoned. Deposition testimony indicated that at the time of plaintiff's assault, plaintiff was at the rear of a group of students. The deposition testimony of one of the trip chaperones, Dean Stephanie Hasandras, stated that there were five chaperones, however she could only confirm that herself, and two other chaperones were present (see Deft's Mot, Exh H, pp 33, 47, 59). Plaintiff testified that only two teachers were with the student group and that those teachers were in the front of the group and looking at a camera or cell phone at the time of the occurrence (see Deft's Mot, Exh E, p 57).

School liability where students were on a field trip was discussed by the Court of Appeals in Bell v Board of Educ. of City of NY, 90 NY2d 944 (1997). In Bell, plaintiff was raped while improperly supervised on a field trip. The Court noted that "[a] fact finder could have reasonably concluded that the very purpose of the school supervision was to shield vulnerable schoolchildren from such acts of violence." (id at 947). Such is the instant case where a jury upon hearing the facts of this case may determine that the foreseeable result of the alleged lack of supervision was a violent act against plaintiff (id at 946-947). In clarifying liability of the defendant in Bell, the court stated " [w]hen the intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs'" (id at 947, quoting Kush v City of Buffalo, 59 NY2d 26, 33 [1983]). Therefore, as a matter of law it is unknown at this juncture whether or not the intervening intentional acts of the assailants here were unforeseeable and thus, plaintiff's cause of action for negligent supervision may continue (id).

As to plaintiff's other cause of action for negligent hiring, training, and/or retention, it is dismissed. There is no dispute that the school employees here were acting within the scope of their employment. As such, any damages caused by the negligence of those employees falls under a theory of respondeat superior and not negligent hiring, training, and/or retention (see Karoon v New York City Transit Authority, 241 AD2d 323, 324 [1st Dept 1997]).

The remaining issue is plaintiff's cross-motion for sanctions based on the alleged spoliation of a surveillance video. Dean Hasandras testified at her deposition, taken on September 15, 2011, that a surveillance video from a school camera existed and that she viewed it prior to her deposition. Plaintiff served a Notice for Discovery and Inspection dated the same day that demanded a copy of the video. There are several court orders directing the defendants to respond to the Notice, the last of which was dated on October 24, 2012 ^[FN1] . It states that the failure to respond within forty-five days would result in preclusion of the defendants from offering any evidence as to liability at the time of trial. The defendants served a response dated November 27, 2012, that indicated the video was not preserved and that, in any event, Dean Hasandras only claimed that it showed the students exiting the building, but did not depict the assault on plaintiff. An affidavit provided by the defendants indicated that the video was recorded over sixty days after the incident (see Deft's Reply Aff, Ex A). Plaintiff herein seeks preclusion based in part on the language in the court order and on the defendants' failure to preserve the video once it was aware litigation was impending.

Addressing the October 24, 2012 preclusion order, as defendants did respond to the Notice for Discovery and Inspection within the time frame set by the order, the remaining defendant will not be precluded based on that order. However, the cavalier attitude of defendants and their failure to preserve a video that depicted at least some of the activity involved in this litigation is troubling. It is particularly concerning that the video was not preserved where a police investigation immediately ensued, a Notice of Claim was filed on June 17, 2010, for this civil action, and the faculty of the school thought to view the video soon after the events occurred and, in the case of Dean Hasandras, prior to her deposition.

While CPLR § 3126 provides for sanctions where the parties fail to comply with court orders, the First Department has imposed sanctions in accordance with common law where electronic evidence was negligently rather than willfully destroyed (see Strong v City of New York, 112 AD3d 15, 21 [1st Dept 2013]). Indeed, the First Department made clear that "willfulness or bad faith may not be necessary predicates" to spoliation sanctions pursuant to state common law (Sage Realty Corp. v Proskauer Rose, 275 AD2d 11, 16 [1st Dept 2000]). Given that the defendants were on notice that the video may be needed for litigation well before sixty days passed, this court finds it appropriate to grant plaintiff's cross-motion for sanctions. However, preclusion is too severe a sanction here. The video is neither the only nor most critical proof in plaintiff's case in chief, although it may have assisted plaintiff in proving the timing of the occurrence, and to some extent, the supervision of students during their departure from the school. Therefore, an adverse inference charge to be determined by the trial judge is appropriate here (see Strong v City of New York, supra at 24; Suazo v Linden Plaza Assoc., L.P., 102 AD3d 570 [1st Dept 2013] Gogos v Modell's Sporting Goods, Inc., 87 AD3d 248 [1st Dept 2011]).

Accordingly, it is hereby

ORDERED that defendants' motion to dismiss, or in the alternative for summary judgment, [*3]is granted to the extent that the City of New York is no longer a party to this action and that plaintiff's cause of action for negligent hiring, training, and/or retention is dismissed; and it is further

ORDERED that plaintiff's cross-motion for sanctions is granted to the extent that at the time of trial plaintiff is entitled to an adverse inference charge against defendant New York City Department of Education.

This constitutes the decision and order of the court.

Dated: May 29, 2014

Margaret A. Chan , J.S.C.