[*1]
Picone v Mineola Union Free Sch. Dist.
2014 NY Slip Op 51074(U) [44 Misc 3d 1210(A)]
Decided on July 17, 2014
Supreme Court, Nassau County
Marber, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 17, 2014
Supreme Court, Nassau County


Luke Picone, an infant by his Mother and Natural Guardian, ROMINA PICONE, Plaintiff,

against

Mineola Union Free School District, Defendant.




010091/12



Salzman & Weiner, LLP.



Attorneys for the Plaintiff



305 Broadway, Suite 1204



New York, NY 10007



Ph: (212) 233-6550



Fax: (212) 233-6714



Ahmuty, Demers & McManus, Esqs.



Attorneys for the Defendant



200 I.U. Willets Road



Albertson, New York 11507



Ph: (516) 294-5433



Fax: (516) 294-5387


Randy Sue Marber, J.

Papers submitted:



Notice of Motion (Mot. Seq. 01)...................x



Affirmation in Opposition.............................x



Notice of Cross-Motion (Mot. Seq. 02)..........x



Affirmation in Opposition.............................x



Reply Affirmation.........................................x



Upon the foregoing papers, the motion (Mot. Seq. 01) by the Defendant, MINEOLA UNION FREE SCHOOL DISTRICT, seeking an Order pursuant to CPLR § 3212 granting it summary judgment dismissal of the Plaintiff's complaint and the cross-motion (Mot. Seq. 02) by the Plaintiff seeking an Order pursuant to CPLR § 3212 granting him summary judgment as to liability [*2]and/or striking the Defendant's answer pursuant to CPLR § 3124 and/or 3126, are determined as hereinafter provided.



This is an action seeking damages for personal injuries allegedly sustained by the Plaintiff, LUKE PICONE, as a result of an incident that allegedly occurred on December 12, 2011 at approximately 3:30 p.m. The Plaintiffs commenced this action by filing a summons and complaint in the Office of the Nassau County Clerk on August 8, 2012. The Defendants served an answer on October 25, 2012.



In his Verified Bill of Particulars, the Plaintiff alleged that he suffered a serious and permanent injury as a result of an incident on a bus when another student, named Lucas, threw his backpack back and forth to the Plaintiff for a prolonged period of time in which the backpack hit the Plaintiff and caused his head to strike the window. (See Verified Bill of Particulars annexed to the Notice of Motion as Exhibit "C") The Plaintiff alleged that Lucas had a history of throwing objects on the bus prior to this alleged incident. (Id.) The Plaintiff alleged that the resulting injuries were a direct result of the Defendant's negligence and carelessness. (Id.) The Plaintiff alleged that Bill Miceli, the aide, and Maria Coleman, the bus driver, were negligent in their operation, management, and supervision of the kindergarten students entrusted to them. (Id.)



On March 21, 2012, the Plaintiff and his mother, Romina Durso Picone (hereinafter "Mrs. Picone"), testified at a 50 (h) hearing. The Plaintiff, Luke Picone, testified that on the date of the incident he was sitting towards the back of the bus. (See Transcript of the Plaintiff's 50 (h) hearing annexed to the Notice of Motion as Exhibit "D" at p. 10, l. 9-12) He testified that another student named Lucas was throwing his backpack and it hit him on his belly. (Id. at p. 11, l. 5-16) At the time he was hit, the Plaintiff testified that he was sitting on his knees facing the back of the bus and he had his seat belt on. (Id. at p. 11, l. 17-25, p. 12, l. 2-10) The Plaintiff testified that Lucas threw the backpack five times before he was hit. (Id. at p. 12, l. 15-17) When the backpack hit the Plaintiff, he fell and his head hit the window. (Id. at p. 13, l. 2-12) The Plaintiff testified that Bill was in the front of the bus at the time of the incident. (Id. at p. 14, l. 8-10) The Plaintiff testified that he'd never seen Lucas throw his backpack or anything else before that day. (Id. at p. 14, l. 14-20) The Plaintiff testified that he threw the backpack back to Lucas after he threw it to him. (Id. at p. 17, l. 21-25, p. 18, l. 2-6) The Plaintiff did not tell Bill or Maria that he hit his head before he got off the bus. (Id. at p. 23, l. 110-15)



At the Examination Before Trial of the Plaintiff, he testified that on the date



of the alleged incident, when Lucas threw the backpack over the seat he would kick it back under the seat. (See EBT Transcript annexed to the Notice of Motion as Exhibit "F" at p. 11, l. 20-25, p. 12, 2)



At the Examination Before Trial of Mr. Miceli, he testified that he was employed by the Defendant as a bus aide and his duties were to make sure the kids were safe, wearing their seatbelts and not acting viciously against each other. (See EBT transcript annexed to the Notice of Motion as Exhibit "I" at p. 7, l. 19-25, p. 8, l. 2) He testified that he was not aware of any incidents involving the Plaintiff prior to the alleged incident. (Id. at p. 12, l. 9-13) Mr. Miceli was not aware of any incidents involving Lucas prior to the alleged incident. (Id. at p. 13, l. 25, p. 14, l. 2-6) Mr. Miceli testified that Lucas was a "thrower", but that he became aware of that after the alleged incident and that he was calm before the alleged incident. (Id. at p. 15, l. 25, p. 16, l. 2-16) Mr. Miceli only became aware of the alleged incident and that the Plaintiff was injured on the bus a few days after the alleged incident. (Id. at p. 16, l. 17-25, p. 17, l. 2-18)



Mr. Miceli testified that if he saw a student throwing a backpack he would correct [*3]him and take the backpack to the front of the bus until the student got off the bus. (Id. at p. 19, 19-25, p. 20, l. 2-8) Mr. Miceli would sit in the front of the bus when the bus was traveling from the school to take kids home. (Id. at p. 20, l. 21-25) He testified that he would listen for crying or yelling and he would look back often to see what was going on. (Id. at p. 21, l. 9-19, p. 23, l. 2-7)



Maria Coleman states in her Affidavit that on December 12, 2011 she was employed as a bus driver for the Defendant. (See Affidavit annexed to the Notice of Motion as Exhibit "J") Ms. Coleman stated that from September 2011 until December 12, 2011 she was not aware of any students throwing backpacks over the seats of the bus nor was she aware of any incidents or problems between students, Luke Picone and Lucas Antunes. (Id.)



Dr. Sue Fleischman states in her Affidavit, that she was employed by the Defendant as a principal at Willis Avenue School from July 2011 through June 2012. (See Affidavit of Dr. Sue Fleischman annexed to the Notice of Motion as Exhibit "K") She states that she was not aware of any incidents concerning the Plaintiff and Lucas from September 2011 through December 12, 2011 and that she was not aware of incidents involving students throwing backpacks on the bus from September 2011 through December 12, 2011. (Id.)



In support of its motion, the Defendant submits the pleadings, the transcripts



of the Plaintiff and Mrs. Picone, from the 50 (h) hearing held on March 21, 2012, the Examination Before Trial ("EBT") transcripts of the Plaintiff, Mrs. Picone and Bill William V. Miceli (hereinafter "Mr. Miceli"), the Affidavit of Maria Coleman (hereinafter "Ms. Coleman") dated April 29, 2014 and the Affidavit Dr. Sue Fleischman dated March 25, 2014.



The Defendant argues that the Plaintiff cannot establish negligence on the part



of the Defendant because there is no testimony or any other evidence to show that Lucas was a threat to other students prior to the alleged incident. The Defendant argues there is no evidence to show that it had actual or constructive notice of any prior similar conduct on the bus. Further, the Defendant argues that even if the Court finds that it was negligent in its supervision, the Plaintiff cannot establish that such negligence was the proximate cause of his injuries. Specifically, the Defendant contends that based on the testimony of the infant Plaintiff, Lucas threw the backpack five times before the Plaintiff was caused to hit his head and injure himself. The Defendant argues that although no specific time frame was given, in the amount of time it would have taken Lucas to throw the backpack five times the Defendant could not have been able to prevent the injury with even the most intense supervision.



In opposition to the Defendant's motion, the Plaintiff asserts that the motion should be denied because it is was filed late. The Plaintiff argues that the certification order dated January 8, 2014 directs that any summary judgment motions be filed within 60 days of the filing of the Note of Issue. The Plaintiff filed the Note of Issue on March 3, 2014. The Defendant filed its motion on May 2, 2014. The Plaintiff argues that the Defendant's deadline to file its motion was May 1, 2014 and therefore it was late. The Plaintiff contends that because the Defendant did not show good cause as to the late filing of the motion, it should be denied outright.



In opposition to the merits of the Defendant's motion, the Plaintiff argues that



there is a question of fact as to whether the Defendant had notice because Mr. Miceli testified that he does not believe that Lucas was a known thrower before the alleged incident instead of affirmatively saying he was not a thrower. The Plaintiff further contends that the only testimony regarding a time frame of the alleged incident is that the backpack was thrown over and back five times. The Plaintiff contends that the Defendant's two employees, Mr. Miceli and Ms. Coleman, should have noticed and the only explanation for them not noticing is that they were not looking [*4]back at all. Further, the Plaintiff contends that Mr. Miceli was negligent because he only looked back when he heard cries or yelling, which would be too late to intervene or prevent an occurrence that caused crying.



The Plaintiff contends that the Defendant's counsel ignored the demand for the



written materials provided to Mr. Miceli and failed to provide the last name of Lucas until the instant motion.



In his cross-motion, the Plaintiff argues that its grounds for summary judgment



are identical to the grounds set forth in the Defendant's motion, just argued in the alternative. The Plaintiff contends that the Defendant did have prior notice of Lucas's propensity to throw things on the bus and that the incident did not arise so suddenly that it could have been prevented with proper supervision.



The Plaintiff asserts that if the Court finds that the Defendant's motion is not



late, it should also accept the late filing of the cross-motion because it is based on identical grounds as the Defendant's motion.



The Plaintiff further argues that it should be granted summary judgment on a



theory of res ipsa loquitar. The Plaintiff argues that it satisfies each required prong for res ipsa loquitar because the bus matron was negligent in failing to monitor and observe timely, that the boys were within their exclusive control and that the infant Plaintiff could not have contributed to the negligence because he was "non sui juris", or incapable of negligence due to him only being five years and nine months old.



Finally, the Plaintiff argues that the Defendant's answer should be stricken for



failing to provide the written materials that Mr. Miceli received during his training period. The Plaintiff asserts that it has never been provided with such materials despite repeated demands to the Defendant.



In opposition, the Defendant argues that the Plaintiff's cross-motion should be



denied as untimely. The Defendant contends that the Plaintiff's argument that its cross-motion should be considered because it based on identical grounds as the Defendant's motion is without merit. The Defendant contends that the grounds are not identical but are actually the exact opposite.



The Defendant further argues that the Plaintiff has not established his entitlement to summary judgment. The Defendant contends that the Plaintiff is misleading the court by arguing that Mr. Miceli testified that he would only look back when he heard crying or yelling. On the contrary, Mr. Miceli testified that he would look back often to see what was going on. The Defendant further argues that the Plaintiff's inference that Mr. Miceli was negligent in his duty to make sure the children were wearing their seatbelts is without merit, because the Plaintiff testified he was wearing his seatbelt at the time of the alleged incident. The Defendant argues that the case, Blair v. Bd. of Educ. of Shelburne-Earlville Cent. Sch., 86 AD2d 933 [3rd Dept. 1982], cited by the Plaintiff is clearly distinguishable from the facts in this case. In Blair, the testimony showed that there was unruly behavior for almost 15 minutes prior to the injury and that the bus driver was advised of the behavior prior to the injury. Here, there is only testimony that the backpack was thrown five times. The Defendant argues that this would not take 15 minutes and there is no evidence that the bus driver or Mr. Miceli were made aware of any inappropriate behavior.



The Defendant further argues that res ipsa loquitur does not apply and the Plaintiff has failed to establish any of the three required prongs. First, a child can be injured in the absence of someone else's negligence. Second, the instrumentality that caused the accident, the backpack, was in the exclusive control of Lucas, not the Defendant or any of the Defendant's employees. [*5]Third, the Plaintiff testified that after Lucas threw the backpack over the seat he would kick it back to him. Further, despite the Plaintiff's contention that the infant was not capable of negligence due to his age, the Defendant argues that it is has been held by the Appellate Division, Second Department since 1940 that a child 4 years or less is non sui juris. However, the Plaintiff in this action was over five years old at the time of the alleged incident.



Finally, the Defendant contends that its answer should not be stricken for failure to provide the materials to the Plaintiff because the Plaintiff filed the Note of Issue and Certificate of Readiness asserting to the Court that discovery was complete. Thus, the Plaintiff waived any objection to the timeliness or adequacy of the Defendant's disclosure.



In its Reply in further support of its motion, the Defendant contends that its motion is in fact timely. The Defendant contends that pursuant to New York General Construction Law Section 20, the day from which the time period runs is excluded. Therefore, its filing of the instant motion on May 2, 2014 was within 60 days from the filing of the Note of Issue on March 3, 2014 and is in fact timely.



The Defendant contends that the Plaintiff's assertions that it did not comply with discovery are without merit. The Defendant contends that it did not provide Lucas' last name or produce Maria Coleman for a deposition because the Plaintiff did not make such demands. Further, the Defendant contends that the Plaintiff misconstrues the testimony of Mr. Miceli. The Defendant contends that the testimony of Mr. Miceli, the Affidavit of Ms. Coleman and the Affidavit of Sue Fleischman, all establish that the Defendant did not have notice of any prior conduct on the bus before the date of the alleged incident.



The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. (Sillman v. Twentieth Century—Fox Film Corporation, 3 NY2d 395 [1957]) The movant has the initial burden of proving entitlement to summary judgment. (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]) Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Id) Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact." (CPLR § 3212 [b]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065 [1979])



As a general proposition, "[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". (Nash v. Port Washington Union Free School Dist., 83 AD3d 136 [2d Dept. 2011]; quoting Mirand v. City of New York, 84 NY2d 44 [1994] at 49; see also Armellino v. Thomase, 72 AD3d 849 [2d Dept. 2010]) However, "schools are not insurers of safety * * * for they cannot reasonably be expected to continuously supervise and control all movements and activities of students * * * [and] are not to be held liable for every thoughtless or careless act by which one pupil may injure another'". (Mirand v. City of New York, supra quoting Lawes v. Board of Ed. of City of New York, 16 NY2d 302, 306 [1965]) Thus, the personnel of a given school "cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily". (Mirand v. City of New York, supra at 49)



A school is only under a duty to exercise the degree of reasonable care that a parent [*6]of ordinary prudence would have exercised under comparable circumstances. (Hauser v. North Rockland Cent. School Dist. No. 1, 166 AD2d 553, 554 [2d Dept. 1990]) When an injury results from the act of an intervening third party which, under the circumstances, could hardly have been anticipated in the reasonable exercise of the school's legal duty to the child, there can be no liability on the part of the school. (Id.; see also Brown v. City of New York, 130 AD2d 701 [2d Dept. 1987]; Schlecker v. Connetquot CSD, 150 AD2d 548 [2d Dept. 1989])



In circumstances where a plaintiff's injuries are caused by a fellow student, in determining whether the duty to provide adequate supervision has been breached, it must be established 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". (Mirand, supra at 49; see also Velez, supra.)



Here, the Defendant has established its prima facie showing of entitlement to judgment as a matter of law by demonstrating both that it provided adequate supervision and that the Plaintiff's accident was spontaneous in nature such that no amount of supervision could have prevented the occurrence thereof. (See Siegell v. Herricks UFSD, 7 AD3d 607 [2d Dept. 2004]; Velez v. Freeport UFSD, 292 AD2d 595 [2d Dept. 2002]; Hernandez v. Christopher Robin Academy, 276 AD2d 592 [2d Dept. 2000])



Here, the testimony of the Plaintiff, Luke Picone, Mr. Miceli and the Affidavits of Ms. Coleman and Dr. Fleischman establish that there was no prior notice of any children throwing things on the bus nor was there any warning that the alleged incident would happen. Further, based on the testimony it appears that the alleged incident happened within a short period of time and that even with the most adequate supervision the Defendant could not have prevented the incident from occurring.



In opposition to the Defendant's prima facie showing, the Plaintiffs have failed to raise a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 [1986]) Although the Plaintiff relies on certain parts of Mr. Miceli's deposition testimony in an effort to raise an issue of fact, when reading the transcript as a whole, there is no evidence that Mr. Miceli or the Defendant acted negligently.



Furthermore, the Plaintiff fails to establish his prima facie entitlement to summary judgment on his cross-motion. There is insufficient evidence that the Defendant was put on notice that the alleged incident was likely to happen, especially in light of the fact that there was no recent prior similar conduct and no prior incidents or problems between the infant Plaintiff and Lucas. However, even if there was evidence of negligence, liability for negligent supervision does not lie absent a showing that it constitutes a proximate cause of the injury sustained. (Alferoff v. Casagrande, 122 AD2d 183, 184 [2d Dept. 1986]) Under these facts, given the spontaneous nature of the happening of the occurrence, no amount of supervision could have prevented it.



Additionally, the Plaintiff failed to adequately establish the three prongs required for a res ipsa loquitur claim. The requirements to establish a claim under the doctrine of res ipsa loquitur are: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (Morejon v. Rais Constr. Co., 7 NY3d 203 [2006]) Here, the Plaintiff failed to establish any of the required elements to make out such a claim.



With regard to the Plaintiff's argument that the Defendant's motion was filed



late, this argument is without merit. According to the Certification Order dated January 8, 2014, [*7]motions for summary judgment must be filed within 60 days from the filing of the Note of Issue. The Plaintiff filed the Note of Issue on March 3, 2014. Pursuant to New York General Construction Law, "a number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made." Thus, March 3, 2014 is not included in computing the 60 days from the filing of the Note of Issue and the Defendant's motion, which was filed on May 2, 2014, was timely.



With regard to the Plaintiff's argument that the Defendant's answer should be



stricken for failing to adequately and timely comply with discovery requests is also without merit. The Plaintiff filed the Note of Issue and Certificate of Readiness on March 3, 2014. The Plaintiff's proper recourse would have been to seek the Court's permission to file a motion to compel the Defendant to respond to outstanding discovery demands or to file a motion to extend its time to file a Note of Issue. However, the Plaintiff failed to take such action.



The Plaintiff submitted a Sur-Reply in further support of his motion. Since the



Plaintiff submitted a Sur-Reply without any authorization from the Court, it is improper and will not be considered by the Court. (See Flores v. Stankiewicz, 35 AD3d 804 [2nd Dept. 2006]; Boockvor v. Fischer, 56 AD3d 405 [2nd Dept. 2005]; Zhu v. Lin, 1 AD3d 416 [2nd Dept. 2003]; D.C. v. C.C., 41 Misc 3d 1227(A) [Sup.Ct. Westchester Cty. 2013]; see also CPLR § 2214 (no statutory provision allowing supplemental replies)



Accordingly, it is hereby



ORDERED, that the Defendant's motion seeking an Order granting summary



judgment pursuant to CPLR § 3212 dismissing the complaint is GRANTED; and it is further



ORDERED, that the Plaintiff's cross-motion seeking an Order granting it



summary judgment as to liability pursuant to CPLR § 3212 and to strike the Defendant's answer pursuant to CPLR § 3124 and/or 3126 is DENIED.



This constitutes the decision and order of the Court.



DATED:Mineola, New York



July 17, 2014

________________________________

Hon. Randy Sue Marber, J.S.C.

XXX