The following papers were read on the motion by defendants, Mount Vernon City School District, Pennington Elementary School and Lori Angi, for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint:

This action was commenced by the infant plaintiff D.O.C.'s mother and natural guardian, [redacted], on behalf of her son, and [the mother], individually, asserting causes of action for negligence, negligent hiring and supervision, criminal negligence and loss of services arising from an incident that occurred on October 25, 2022, while D.O.C. was a pre-kindergarten student at Pennington Elementary School in the Mount Vernon City School District ("District"). It is alleged that his teacher, Lori Angi ("Angi"), assaulted him by forcefully grabbing his arm, yanking and pulling him through the school hallway, into a stairwell, where she threw him to the floor and left him several minutes, thereby causing serious and severe permanent injuries. The complaint further alleges that defendants breached their duty to adequately supervise D.O.C., that defendants were negligent in their hiring and supervision of Angi, and that Angi assaulted, battered and mistreated D.O.C., and acted with criminal negligence. Lastly, the complaint alleges that D.O.C.'s mother, [redacted], is entitled to damages for loss of services and the expenses incurred for D.O.C.'s medical care, treatment and hospitalization. Plaintiffs seek compensatory and punitive damages.

In support of the within motion for summary judgment, defendants argue that Angi did not perpetuate an assault or battery on the infant plaintiff, and even if Angi had engaged in any [*2]such wrongful acts, defendants had no specific knowledge or notice of Angi's propensity to commit the complained of conduct. To support these contentions, defendants submit the affidavit of Noel Campbell, the District's Assistant Superintendent for Human Resources, who attests that prior to October 25, 2022, there had never been any complaints against Angi of corporal punishment, assault, battery, or any type of improper contact with a student (NYSCEF Doc. No. 29). Defendants also submit an affidavit from Angi in which she attests that on the day of the incident, she removed D.O.C. from the classroom out of concern for him and the other students because D.O.C. was agitated and kicking and pushing furniture (NYSCEF Doc. No. 28). The removal was "not punitive, but rather a time for him to collect his thoughts and feelings and to relax" (id. at ¶¶ 13- 15). Angi further attests that she put her hand on D.O.C.'s arm to lead him out of the classroom and down the hallway, but she never grabbed him. And, while acknowledging that she did have D.O.C. sit on the ground, she states that she did not "put" him on the ground, nor did she leave him alone in the stairwell (id. at ¶ 17). Angi contends that she merely stepped aside, while remaining in close proximity, to give D.O.C. space to "move his arms and legs around if he wanted to spread out," which was part of his calming down routine (id.). Defendants also submit Angi's deposition transcript wherein she testified that the District's investigation into the incident did not result in the filing of any disciplinary charges, and that Angi's subsequent transfer to another school was voluntary (NYSCEF Doc. No. 32 at 69-71).

In opposition, plaintiffs argue there are material issues of fact regarding the details of the incident and whether defendants had actual or constructive notice of Angi's propensity to commit the alleged assault, which could form the basis for imposing liability. To support these contentions, plaintiffs rely on the deposition testimony and affirmation of D.O.C.'s mother. At her deposition, [the mother] testified that prior to the incident, she had at least two encounters with Angi wherein the teacher made sarcastic and judgmental comments about D.O.C. and his behavior in the classroom (NYSCEF Doc. No. 38 at 29-35). [The mother] also testified that she sent an email to the school principal and pre-kindergarten program director communicating her concerns about Angi's treatment towards D.O.C. and her inability to properly educate D.O.C., given her lack of "nurturing qualities" (id.). [The mother] also made a request that D.O.C. be moved to a different classroom but was told that the other classroom was at full capacity. [The mother's] testimony is buttressed by her affirmation, in which she reiterates that she expressed her concerns about Angi to the District and further contends that D.O.C. expressed fear and anxiety about his teacher, crying in the mornings before school and saying that he hated Angi. [The mother] further attests that a video recording of the incident and statements by Safety Supervisor Monique Brower, School Safety Officer Shauna Harris, and Parent Liaison Pamela Valdovinos, taken on October 25, 2022, warrant denial of the motion (NYSCEF Doc. No. 43). According to the witness account statements, Angi was seen dragging or pulling a visibly scared and upset D.O.C. down the hall by his arm in a rough or abusive manner. Angi then took D.O.C. into the stairway beyond the view of the school cameras and either put or pushed D.O.C. down and yelled at him to sit on the dusty floor. D.O.C. remained on the floor, as punishment, for approximately five minutes until the School Safety Officer had him stand up and dust himself off (NYSCEF Doc. Nos. 39-40).

A party moving for summary judgment pursuant to CPLR 3212 must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate that there is no genuine dispute as to any material fact (Alvarez v Prospect Hospital, [*3]68 NY2d 320, 324 [1986]). Once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

To establish negligence, a plaintiff is required to demonstrate "(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). A school or school district "owes a duty to adequately supervise the students in its care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Fernandez v City of Yonkers, 139 AD3d 895, 896 [2016] [internal quotation marks omitted]). "The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians" (Mirand v City of New York, 84 NY2d 44, 49 [1994]).

"The standard for determining whether [a] school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information" (Timothy Mc. v Beacon City School Dist., 127 AD3d 826, 828 [2d Dept 2015]). "To find that a school district has breached its duty to provide adequate supervision, a plaintiff must show that the district had sufficiently specific knowledge or notice of the dangerous conduct and that the alleged breach was a proximate cause of the injuries sustained" (Ronan v School Dist. of City of New Rochelle, 35 AD3d 429, 430, [2d Dept 2006] [internal quotation marks omitted]). Nonetheless, the questions of whether the actions of a school in supervising the students in their charge are adequate and reasonable, and whether inadequate supervision was the proximate cause of plaintiff's injury, are generally left to the trier of fact (MCVAWCD-Doe v Columbus Avenue Elementary School, et al. 225 AD3d 845, 847 [2d Dept 2024], citing Braunstein v Half Hollow Hills Cent. School Dist., 104 AD3d 893, 894 [2d Dept 2013]).

"Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee" (Johansmeyer v New York City Dept. of Educ., 165 AD3d 634, 635 [2018] [citations and internal quotation marks omitted]). To establish a cause of action based on negligent hiring, retention or supervision, a plaintiff must show that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Shor v Touch- N-Go Farms, Inc., 89 AD3d 830, 831 [2011]).

Initially, this court notes that the affirmation of Jennifer Arditi, Esq., dated June 2, 2025, filed in support of defendants' motion for summary judgment, fails to comport with the recently amended statutory language of CPLR 2106, which provides as follows:

The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this ____ day of ________, ____ , under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

The Advisory Committee Notes to CPLR 2106 state that "[w]hile attorneys always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement" (Zhou v Cent. Radiology, PC, 84 Misc 3d 410, 419 [Sup Ct, Queens County 2024]). Additionally, inasmuch as the amended rule includes the word "shall" within its directive, the language set forth thereafter is mandatory and not merely a suggestion (Diego Beekman Mut. Hous. Assn. Hous. Dev. Fund Corp. v Hammond, 81 Misc 3d 1244(A) [Civ Ct, Bronx County 2024]).

Here, defense counsel's affirmation is only made "under the penalties of perjury" (NYSCEF Doc. No. 27) and fails to include the required language of CPLR 2106. As such, the affirmation is inadmissible and of no probative value (Zhou, 84 Misc 3d at 419; R.F. v L.K., 82 Misc 3d 1221(A) [Sup Ct, Westchester County 2024]).

Nevertheless, the court may properly consider defendant's motion because it is "supported by affidavit, by a copy of the pleadings and by other available proof" as required on a motion for summary judgment under CPLR 3212 (b). On these submissions, defendants have made a prima facie showing of their entitlement to summary judgment dismissing the claims of negligence and negligent hiring. Specifically, the Campbell affidavit, coupled with Angi's deposition testimony and affidavit, are sufficient to make an initial prima facie showing that Angi did not engage in any wrongful conduct with respect to D.O.C., and even if she did, defendants lacked actual or constructive notice of Angi's propensity to engage in the allegedly inappropriate or dangerous conduct.

In opposition, however, plaintiffs have raised material issues of fact by submitting [the mother]'s sworn deposition testimony and affirmation attesting to her communications with the District as well as the Confidential Report of Allegation and Administrator's Detailed Investigation Report, which contain versions of the incident different from the one provided by Angi. This evidence demonstrates that there are triable issues of fact with respect to whether Angi engaged in inappropriate conduct in the first instance, and whether defendants had the requisite notice necessary to impose liability under the theories of negligence and negligent hiring and supervision.

Lastly, the court notes that defendants have not raised any specific argument with respect to plaintiffs' third cause of action alleging that Angi is liable for the intentional assault, battery, and mistreatment of D.O.C., and that Angi acted with criminal negligence. To the extent defendants are relying on Angi's affidavit and testimony to establish the element of intent required for intentional torts, the conflicting sworn statements among the parties and witnesses as to what transpired on October 25, 2022, demonstrate that there are also triable issues of fact with respect to plaintiffs' third cause of action. Accordingly, defendants are not entitled to summary judgment dismissing the complaint.

The court has considered the parties' remaining contentions, despite the absence of any specific reference thereto, and finds them to be without merit or rendered moot by certain aspects of this Decision and Order.

Accordingly, it is hereby

ORDERED that defendants' motion for an Order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint is denied; and it is further

ORDERED that within five (5) days of the date this Decision and Order is uploaded to NYSCEF, counsel for plaintiffs shall serve a copy of this Decision and Order, with notice of [*4]entry, upon all parties, and file proof of service on NYSCEF; and it is further

ORDERED that the parties shall appear in the Trial Assignment Part on a date and time to be provided by that part.

The foregoing constitutes the Decision and Order of the court.