Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this motion: Papers Numbered Notice of motion 1-2 Affirmation in Opposition 3 Reply 4 DECISION AND ORDER Upon the foregoing cited papers, and after oral argument, the decision and order on defendants’ motion for summary judgment, pursuant to CPLR 3212, seeking dismissal of the complaint against them and for such other and further relief as the Court deems proper, is as follows: Plaintiff commenced this action to recover damages for injuries allegedly arising from persistent attacks, sexual assault and harassment by bullies at his school. The City of New York (City) seeks summary judgment on the grounds that the City is not liable for the negligent or intentional acts of the Department of Education (DOE) and did not maintain or control the property or the employees at the school. DOE seeks summary judgment on the grounds that it is only liable for foreseeable injuries related to a lack of adequate supervision, its supervision was not negligent as a matter of law, and plaintiff was a voluntary participant in the activity which caused his injury. Plaintiff opposes the motion. In 2012, plaintiff, a male infant, born in March 2001, was a student at PS/IS104, located at 9115 5th Avenue in Brooklyn. Throughout the school year, some students played an unauthorized and unsupervised “game,” which they called “Bangkok Friday.” On Fridays they would punch the genitals of other students. According to plaintiff, he was repeatedly a victim of this “game,” despite his objections. On Fridays, he frequently walked around covering his genitals with his hands or avoided school altogether. Although this activity usually occurred on Fridays, it also occurred on other school days. According to plaintiff, it most often occurred during lunch when there were allegedly “no teachers watching the lunchroom and only a principal walking around” supervising approximately one hundred fifty students. It also occurred during the gym period where the sole gym teacher was far outnumbered by students, and during bathroom breaks and in school stairways where little or no supervision was provided. Plaintiff alleged he became a primary target of the Bangkok “game” in March 2012, and was punched in his genitals more than one hundred times. He was punched in the bathroom, lunchroom, gym, and other locations at the school. By May 2012, plaintiff had started skipping school altogether to avoid being punched and his grades dropped. In May 2012, in a bathroom annexed to the school cafeteria, plaintiff was punched in the genitals and severely injured. He was subsequently hospitalized and doctors determined that his genitals were twisted and severely bruised. Thereafter, he required medical treatment for two years. DOE averred plaintiff only complained of the attacks after he was injured in May 2012. Plaintiff, however, alleged he had previously complained to school personnel about the attacks. He further alleged the school responded by telling the students involved that they did not have to be friends, requiring them to write essays or shake hands. Ms. Brennan was the dean responsible for disciplinary matters at the relevant time. Dean Brennan acknowledged in her deposition testimony that she had been aware of “Bangkok Friday” for at least six months prior to plaintiff’s hospitalization and that it involved students in the sixth, seventh and eighth grades. She admitted she never disciplined the students involved, but averred she called the parents to school to discuss it and sometimes forbade students from going outside to play. Dean Brennan did not indicate what other efforts, if any, were taken to safeguard the children in her care. Ms. DiBella, the school principal, alleged that she was totally unaware of the game until the instant lawsuit. She also denied knowledge of a previous incident when plaintiff was threatened by a student who brought a knife to school, although school personnel retrieved the knife. The moving party is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case (Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). In order to obtain summary judgment, there must be no triable issue of fact presented…even the color of a triable issue of fact forecloses the remedy (In re Cuttitto Family Trust, 10 AD3d 656 [2d Dept 2004], quoting L.N.L. Constr. v. MTF Indus., 190 AD2d 714, 715 [2d Dept 1993]). If a party makes a prima facie showing of its entitlement to summary judgment, the opposing party bears the burden of establishing the existence of a triable issue of fact (Zuckerman, 49 NY2d at 562; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Generally, schools are not insurers of safety and “…cannot reasonably be expected to continuously supervise and control all movements and activities of students” (Mirand v. City of New York, 84 NY2d 44 [1994]). Nonetheless, “schools are under a duty to supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Murray v. Ardsley, 162 AD3d 890 [2d Dept 2018]; Mirand, 84 NY2d at 49). “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury…” (Mirand, 84 NY2d at 49; see B.J. v. Board of Educ. of the City of N.Y., 172 AD3d 693 [2d Dept 2019]). Here, contrary to DOE’s contention, the record establishes that the school had sufficient specific knowledge or notice of the dangerous conduct which caused plaintiff’s injury and there is a triable issue of fact as to whether the school provided adequate supervision (cf. Mitsel, 278 AD2d at 292-293; cf. B.J., 172 AD3d at 694-695). Unlike in B.J., where the school had no knowledge of prior instances of dogs being brought to the sports field and the act of one student running into another was spontaneous, the school in this case had knowledge of “Bangkok Friday” for several months prior to plaintiff’s injury. Dean Brennan acknowledged she was aware of “Bangkok Friday” and familiar with the students involved at least six months prior to May 2012. She also admitted the students were never disciplined, although she averred she held parent conferences and at times refused to permit the students to go outside for breaks. Moreover, plaintiff established he was repeatedly punched in his genitals by bullies and, despite his protests and reports to school personnel, the school failed to take appropriate action to prevent such, resulting in severe injuries and hospitalization. Therefore, a reasonable jury could find the injury was foreseeable and that a lack of adequate supervision was a proximate cause of the injury. DOE further contends, and plaintiff disputes, that plaintiff was a voluntary participant in “Bangkok Friday.” This, however, does not change the result. On a motion for summary judgment, “the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine, and [a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact” (Brown v. Kass, 91 AD3d 894, 895 [2d Dept 2012] [citations omitted]). Here, plaintiff’s testimony denying he voluntarily participated appeared to be genuine and not feigned, thus creating an issue of fact for a jury. Also, unlike the plaintiff in Williams v. Board of Educ. of City School Dist. of City of Mount Vernon, 277 AD2d 373 [2d Dept 2000], who injured himself when he put his arm through a window while attempting to hit a fellow student, plaintiff here alleged he never initiated the conduct and was, therefore, not a voluntary participant. Consequently, in as much as school personnel were aware of “Bangkok Friday” and its dangerous implications, there are issues of fact as to whether school personnel provided adequate supervision to prevent plaintiff’s injuries and whether the injuries were foreseeable. Accordingly, DOE’s motion for summary judgment is denied. It is also well-settled that the City is not liable for the supervision of students or the torts of the DOE on school property (see Matter of Allende v. City of New York, 69 AD3d 931, 932 [2d Dept 2010]). Accordingly, the City is not a proper party and summary judgment is granted in favor of the City. For the reasons indicated herein, the City’s motion for summary judgment is granted and DOE’s motion for summary judgment is denied.
