Shoemaker v. Whitney Point Central School District , 750 N.Y.S.2d 355 ( 2002 )

Mercure, J.

Appeal from an order of the Supreme Court (Monserrate, J.), entered April 9, 2002 in Broome County, which denied defendant’s motion for summary judgment dismissing the complaint.

Plaintiff brought this action to recover for injuries sustained by his son, Jeremy Shoemaker, during a December 20, 2000 altercation with a fellow student on the playground of Whitney Point Middle School in the Town of Whitney Point, Broome County. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint upon the ground that it was not negligent in its supervision of the students and that such negligence was not in any event a proximate cause of Jeremy’s injuries because the altercation was an “unanticipated intervening act.” Supreme Court denied the motion, and defendant appeals.

We affirm. It is well settled that “[sjchools 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” (Mirand v City of New York, 84 NY2d 44, 49). The adequacy of supervision and whether the lack thereof was a proximate cause of a particular injury are generally questions of fact (see Vonungern v Morris Cent. School, 240 AD2d 926, 926).

Although defendant supported its motion with competent evidence that, if uncontroverted, would have established that defendant had no reason to anticipate the altercation and, once underway, the altercation was of such a short duration that defendant could have done nothing to prevent the injury to Jeremy (see e.g. Walsh v City School Dist. of Albany, 237 AD2d 811; Tomlinson v Board of Educ. of City of Elmira, 183 AD2d 1023, 1024), plaintiff opposed the motion with contrary evidence tending to establish that the aggressor pursued Jeremy for as long as two minutes while a schoolteacher watched from a nearby doorway. Given that evidence and the fact that no school personnel were present on the playground at the time of the incident, we conclude that there is an unresolved factual issue as to whether, had school personnel been in a position to intercede on Jeremy’s behalf, such intervention may have prevented his injuries (see Thomas v Board of Educ. of Kingston City Consol. School Dist., 291 AD2d 710; Vonungern v Morris Cent. School, supra).

Contrary to the views of our dissenting colleagues, our holding is not contrary to this Court’s decision in Foster v New Berlin Cent. School Dist. (246 AD2d 880) or of the Second Department decisions in Janukajtis v Fallon (284 AD2d 428) and Convey v City of Rye School Dist. (271 AD2d 154). In Foster, our decision was premised on the fact that the five classes on recess at the time of the incident were being monitored by three teachers and the entire incident “lasted only a few moments” (Foster v New Berlin Cent. School Dist., supra at 881). In both Janukajtis and Convey, the holding was that lack of supervision is not the proximate cause of the injury where the accident occurs in so short a span of time that “ ‘even the most intense supervision could not have prevented it’ ” (Janukajtis v Fallon, supra at 430, quoting Convey v City of Rye School Dist., supra at 160). This is not such a case. We underscore that our holding is based upon the lack of a monitor on the playground at the time of the incident and evidence that the entire incident lasted far longer than a few moments.

In view of our determination, it is not necessary to reach plaintiffs alternative argument for affirmance.

Cardona, P.J., and Kane, J., concur.