Michele M. v. Board of Education , 771 N.Y.S.2d 89 ( 2004 )

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered December 11, 2002, which denied the motion of defendant The Jewish Home and Hospital for the Aged (JHHA) for summary judgment dismissing the complaint against it, reversed, on the law, without costs, the motion granted and the complaint as against it dismissed. The Clerk is directed to enter judgment accordingly.

In September 1996, plaintiff Michele M. was a 19-year-old mentally handicapped student at McSweeney Occupational Training School, operated by the New York City Board of Education. As part of her educational program, Michele, who functioned at the level of a seven year old, participated in one of the school’s off-site training programs, conducted in a facility operated by defendant, The Jewish Home and Hospital for the Aged. It is alleged that another student in the program named Max repeatedly raped Michele in JHHA and threatened to kill her if she told anyone. Michele therefore told no one about the rapes, which were only disclosed after her mother, plaintiff Martha M., noticed that Michele had missed her period. When testing indicated that Michele was pregnant, she told her mother what Max had done to her. Michele subsequently had an abortion. Plaintiffs commenced this action against JHHA and the New York City Board of Education in August 1998.

Following discovery, defendant JHHA moved for summary judgment dismissing the complaint to the extent it was directed against it. Supreme Court denied the motion and this appeal followed.

JHHA asserts that it is not a school, did not operate or administer the training program, and did not have any responsibility to supervise the participating students. JHHA also argues that it had no notice or knowledge of Max’s alleged assaults upon Michele or of his dangerous propensities and, thus, cannot be held liable for her injuries. Plaintiffs counter that JHHA had a duty coextensive with the duty of the McSweeney school to supervise the students in the training program and that JHHA is, therefore, liable for Michele’s injuries, regardless of whether it had notice of the potential danger Max posed to Michele.

To defeat JHHA’s motion for summary judgment, plaintiffs must produce evidence in admissible form to demonstrate the existence of a disputed issue of material fact sufficient to require a trial (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In this case, we need not determine if JHHA had the same or similar duty to supervise students in the McSweeney occupational training program since, even if JHHA were under such a duty, it could not be held liable for Michele’s injuries unless it had notice or knowledge of Max’s conduct toward Michele or of any predilection Max might have had to engage in such conduct (Mirand v City of New York, 84 NY2d 44, 49 [1994] [to impose liability on a school for injuries inflicted by one student on another, “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”]; see also Shante D. v City of New York, 190 AD2d 356 [1993], affd 83 NY2d 948 [1994] [school will be liable for any foreseeable injury proximately related to a failure to supervise]). Plaintiffs acknowledge that there is no evidence establishing that JHHA had the requisite notice or knowledge of Max’s dangerous conduct toward Michele or his propensity to engage in such conduct. Absent such evidence, there is no basis for holding JHHA liable.

We note that in the case of Garcia v City of New York (222 AD2d 192 [1996], lv denied 89 NY2d 808 [1997]), the student was only five years old, was on school premises and had been sent unaccompanied, by his teacher, to the bathroom, where he was attacked, “despite two separate school memoranda, circulated amongst the school’s staff, which explicitly provided security procedures to the contrary” (id. at 194). Thus, the circumstances provided a basis for finding foreseeability (see Mirand at 50). No such circumstances are present in the instant matter, and imposition of liability would improperly subject JHHA to liability as an insurer of the safety of the participants in defendant McSweeney’s occupational training program (see Mirand at 49). Concur—Tom, J.P., Rosenberger and Marlow, JJ.