JA v. City of New York, 2026 NY Slip Op 2084 – NY: Appellate Div., 2nd Dept. 2026:
“VOUTSINAS, J.
Appeal by the plaintiffs, in an action to recover damages for
personal injuries, etc., from an order of the Supreme Court (Kevin J.
Kerrigan, J.), dated August 1, 2023, and entered in Queens County. The
order, insofar as appealed from, granted that branch of the motion of
the defendants City of New York, New York City Department of Education,
and Catherine and Count Basie Middle School 72 which was for summary
judgment dismissing the complaint insofar as asserted against the
defendants New York City Department of Education and Catherine and Count
Basie Middle School 72.
This appeal concerns whether the defendants New York City Department
of Education (hereinafter DOE) and Catherine and Count Basie Middle
School 72 (hereinafter the school) demonstrated, prima facie, that they
did not have adequate notice of the alleged verbal and physical
harassment and physical assaults that the infant plaintiff, J.A., a
student at the school, was being subjected to or that the steps these
defendants took to supervise J.A. and protect him from harm were
adequate. We conclude that the DOE and the school (hereinafter together
the DOE defendants) failed to establish, as a matter of law, that they
did not have sufficient notice of the harassment and assaults or that
they took adequate steps to properly supervise and protect J.A. We also
conclude that because of the continuing wrong doctrine, the notice of
claim served by the plaintiffs was timely with respect to all of the
allegations.
I. Factual and Procedural Background
The instant matter presents a case of harassment and assault of a
student by other students at his school. J.A. allegedly was bullied by
his fellow students throughout the 2017-2018 school year, while a
student at a public middle school located in Queens. The incidents began
in October 2017 and continued through May 2018. J.A. allegedly was
repeatedly verbally and physically harassed and physically assaulted by
other students. On October 6, 2017, while under the supervision of the
DOE defendants, a classmate identified as N. punched J.A. in the head
and face during recess. On February 7, 2018, another classmate,
identified as R., called J.A. a racial slur, kicked him, and threatened
to jump him if he told a teacher. On March 6, 2018, J.A. was at a nearby
store off school grounds when another classmate, identified as A.,
pushed J.A. to the ground. On April 13, 2018, another classmate,
identified as O., threw a crate of books at J.A.’s head and then punched
him on the left and right sides of his face. On May 21, 2018, J.A. was
physically assaulted in a classroom, injuring his left eye. As a result
of these incidents, J.A. suffered injuries to both of his eyes, his
head, his face, and his teeth.
On May 25, 2018, J.A., through his mother, filed a notice of claim
encompassing all of these incidents, alleging that the defendants
provided negligent supervision of J.A. On January 3, 2019, J.A., by his
mother, and his mother (hereinafter the plaintiff mother) suing
individually, commenced this action against the City, the DOE
defendants, and another defendant, alleging, inter alia, negligent
supervision.
J.A. testified at his deposition about the incidents with his
classmates. In describing the physical assault by N., J.A. stated that
he was sitting on a bench when he was punched in the head and face. When
J.A. came to his senses after blacking out, he had ringing in his ears,
had blurry vision, and was spitting blood. As to the physical assault
by R., R. called J.A. a racial slur, then R. got out of his seat and
kicked J.A. When J.A. told a teacher about the incident with R., the
teacher seemed to dismiss J.A.’s report, stating that she “could not
deal with crazy.” Regarding the incident during which O. threw a crate
of books at J.A.’s head and punched him, J.A. testified that he and O.
did not say anything to one another prior to the crate being thrown.
After that incident, J.A. went to the nurse. The nurse contacted J.A.’s
parents, who picked him up from the school. J.A. did not speak to any
teachers or school administrators about the incident prior to being
picked up. Concerning the incident on May 21, 2018, in which his left
eye was injured, J.A. had no recollection of what happened, including
who hit him. J.A. testified that N., O., and the other classmates who
harassed him were all friends who “hung out” together.
The plaintiff mother testified extensively at her deposition
concerning the school’s response to the verbal and physical harassment
of J.A., including additional incidents. She testified that following
many of the incidents, she had to initiate contact with school
administrators to learn what had happened, and she was not otherwise
informed of the incidents. The plaintiff mother testified that following
the incident with O., during which the crate of books was thrown at
J.A., she went to the school’s office to see its principal, Omotayo
Cineus. Initially, Cineus did not want to see the plaintiff mother, but
she refused to leave until Cineus spoke to her.
The plaintiff mother further testified that following the incident
with N., she left numerous messages with Cineus and Thompson Young, the
school’s former dean of students. Eventually, a meeting was held with
Cineus, three or four teachers, J.A., the plaintiff mother, N., and N.’s
mother “to address the situation and prevent anything further from
happening.” The plaintiff mother also testified that the school nurse
called to inform the plaintiff mother that another student had spat on
J.A. The plaintiff mother further testified that she was informed by
Young that J.A. was spat on accidentally. However, the plaintiff mother
testified that J.A. reported that he was spat on three days in a row by
the same student. Moreover, that student, prior to spitting on J.A.
again, had called him a “bombing nigger” and a “terrorist.” The
plaintiff mother could not recall the student’s name. She testified that
she had contacted the school about these additional spitting incidents
and left messages, but she did not receive a call back. A few days
later, while the plaintiff mother was leaving the school after trying to
meet with Cineus or Young about the spitting incidents, she was
threatened by a female student, who told the plaintiff mother that the
female student would put the plaintiff mother in a neck cast.
The plaintiff mother also testified that prior to the incident in
February 2018, J.A. was kicked by a different student, identified as T.
This kicking incident occurred in math class, while a substitute teacher
was out of the classroom, making copies. The plaintiff mother initially
contacted the school about the incident but received no reply. She had
to ask a teacher about the incident during a standard parent teacher
conference a week or two later. The plaintiff mother further testified
about an incident during which a student identified as R. had threatened
to punch J.A., prior to assaulting him later that day on the way to a
school bus, and stated that R.’s threat was heard by a teacher. She
testified that there was no meeting at the school following the assault
by R.
In addition, the plaintiff mother testified that she learned of the
incident in which O. threw the crate of books at J.A. from the school
nurse, not administrative staff. J.A. told his mother that prior to O.
throwing the crate at him, R. had whispered something to O., who became
enraged and threw the crate. The plaintiff mother also described the
incident at the store, where A. threw J.A. to the ground. The plaintiff
mother testified that it was her understanding that her son’s assailants
were all friends. In addition, she testified that she repeatedly called
and visited a school district superintendent’s office to initiate a
safety transfer for J.A.
Clevelon Akil, who became the dean of students at the school in
January 2018, testified that since she was not the dean at the time of
the incident in October 2017, she only became aware of it by reviewing
an incident report. Akil testified that in February 2018, she
investigated the incident during which R. hit J.A. on the way to the
school bus. Akil testified that she spoke with a teacher who was present
during that incident, J.A., R., and the plaintiff mother. Akil further
testified that she became aware of the prior incidents involving J.A.
after reviewing incident reports. Akil testified that despite her
knowledge of the assaults on J.A. and the prior incident reports, she
did not believe that J.A.’s safety was at risk or that there was a
safety issue, describing the occurrences as “incidents [that] happen in
middle school constantly.” Akil testified that she did not know whether a
specific plan was devised for J.A.’s safety and stated that while she
believed that J.A. was eventually transferred to a different class, she
could not recall when the transfer occurred or if it was related to the
incidents.
Cineus testified that, as principal, she was familiar with J.A. She
further testified that she remembered the incident during which N.
struck J.A. and recalled that, prior to that incident, N. had taken
J.A.’s phone from his bag. Cineus stated that following the incident,
both J.A.’s and N.’s families were contacted. Cineus also recalled the
incidents in February 2018, March 2018, and April 2018, and testified
that prior to the incident with O. in April 2018, J.A. allegedly had
made a joke about O.’s recently deceased father.
Cineus testified that she met with the plaintiff mother regarding
these incidents on only three occasions. Cineus further testified that
the school moved J.A. to a different class and provided him with a
paraprofessional in response to the concerns of the plaintiff mother.
Cineus also permitted J.A. to eat lunch in the school office, and she
spoke with the students in his classes about being kind to one another.
Cineus, however, could not recall precisely when these actions took
place.
Motion for Summary Judgment
In May 2023, the City and the DOE defendants moved for summary
judgment, among other things, dismissing the complaint insofar as
asserted against the DOE defendants. They contended, inter alia, that
the plaintiffs’ claims concerning any incidents prior to February 23,
2018, should be dismissed as time-barred because the plaintiff failed to
comply with General Municipal Law § 50-e and that the plaintiffs’
claims concerning the remaining incidents, sounding in negligent
supervision, should be dismissed, because the DOE defendants provided
adequate supervision.
The plaintiffs opposed that branch of the motion, contending, among
other things, that the DOE defendants were on notice of all of the
incidents in the notice of claim and had more than sufficient time to
investigate the incidents. The plaintiffs contended that the notice of
claim was timely because the repeated incidents fell within the
continuing wrong doctrine. The plaintiffs further contended that after
the incidents began, the DOE defendants failed to adequately supervise
J.A.
In an order dated August 1, 2023, the Supreme Court, inter alia,
granted that branch of the motion. The court concluded that the claims
concerning incidents that occurred prior to February 24, 2018 (90 days
before the notice of claim was filed), were barred by General Municipal
Law § 50-e for failure to serve a timely notice of claim. With respect
to the plaintiffs’ claims premised upon the incident on March 6, 2018,
which happened at a store near the school, the court determined that the
DOE defendants were not responsible for protecting the plaintiff from
incidents that occurred off school grounds. As to the remaining
incidents, the court determined that J.A.’s alleged injuries were not a
result of lack of supervision. The plaintiffs appeal.
II. Legal Analysis
A. The Timeliness of the Notice of Claim.
A plaintiff commencing an action against a school district must, as a
condition precedent, serve a notice of claim upon the school district
within 90 days of a cause of action accruing (see Education Law §
3813[2]; General Municipal Law § 50-e). The notice of claim provides a
municipal agency, in this case the DOE, “with an opportunity to timely
and effectively investigate the claim” (Stiff v. City of New York, 114 AD3d 843, 843).
“The test of sufficiency of a Notice of Claim is merely whether it
includes information sufficient to enable the [municipality or agency]
to investigate” (Brown v. City of New York, 95 NY2d 389, 393 [internal quotation marks omitted]).
This Court holds that the notice of claim was timely because the continuing wrong doctrine applies (see Motta v. Eldred Cent. Sch. Dist., 172 AD3d 1575).
As a general rule, the continuing wrong doctrine may be “employed where
there is a series of continuing wrongs and serves to toll the running
of the limitations period to the date of the commission of the last
wrongful act” (Garron v. Bristol House, 162 AD3d 857, 858-859).
The continuing wrong doctrine allows a later accrual date of a cause of
action “where the harm sustained by the complaining party is not
exclusively traced to the day when the original wrong was committed” (Capruso v. Village of Kings Point, 23 NY3d 631, 639
[internal quotation marks omitted]). “The distinction is between a
single wrong that has continuous effects and a series of independent
wrongs” (York v. York, 235 AD3d 1032, 1034 [internal quotation marks omitted]).
This Court has not previously addressed the question of whether the
period within which a notice of claim may be filed is tolled where there
is a continuous pattern of harassment and/or unlawful conduct in a
school setting and allegedly negligent supervision of a student by
school administrators charged with a duty to properly supervise their
students. In Motta v. Eldred Cent. Sch. Dist. (172 AD3d 1575, 1576-1577),
a case factually similar to this one, the Appellate Division, Third
Department, among other things, affirmed the Supreme Court’s denial of a
motion for summary judgment dismissing claims alleging negligence with
respect to any incidents that occurred more than 90 days prior to the
filing of a notice of claim. In Motta, the student was
continually verbally taunted and harassed by the same group of students,
he continually reported those incidents to school administrators, and
the school was continuing to take action with regard to the student’s
complaints when the notice of claim was filed (see id. at 1577). The Motta
Court found that “given the continuing nature of the alleged bullying
and negligent supervision” and the fact that the defendant “had actual
notice of the claim in time to properly investigate and obtain
evidence,” the notice of claim was timely with respect to all of the
alleged incidents (id.).
This Court has, in analogous circumstances, concluded that a continuing violation tolls limitation periods. In Matter of Lozada v. Elmont Hook & Ladder Co. No. 1 (151 AD3d 860, 861),
this Court held that the continuing violation doctrine applied to a
hostile work environment claim because that claim, by its very nature,
was predicated on a series of separate acts that constituted an unlawful
discriminatory practice. In so doing, this Court noted that “`[a]
continuing violation may be found where there is proof of specific
ongoing discriminatory policies or practices, or where specific and
related instances of discrimination are permitted by the employer to
continue unremedied for so long as to amount to a discriminatory policy
or practice'” (id. at 861-862, quoting Clark v. State of New York, 302 AD2d 942, 945).
Similarly, in the context of an employment discrimination action, the
Appellate Division, First Department, has held that claims sounding in
negligent supervision begin to accrue on the date of the last underlying
act (see Pichardo v. New York City Department of Education, 99 AD3d 606, 607).
Schools are obligated to provide students with a safe place to
acquire an education. Children, on a daily basis, leave the safety of
their homes to attend school, where their parents expect that they will
be provided a safe place to grow and learn. While they have physical
custody of these children, schools are said to act “in loco parentis,”
or in place of the parents, and in that role are required to provide the
same protection and care for a child that a parent would provide (see e.g. Pratt v. Robinson, 39 NY2d 554).
Here, J.A. was a student with an individualized education plan
(hereinafter IEP) who is contending, in essence, that he was subjected
to a hostile educational environment through repeated harassment and
assaults. The record establishes that the faculty and administration of
the school were on notice of the allegations of a continuous pattern of
harassment and assaults. The deposition testimony of Akil, Cineus, and
the plaintiff mother indicates that the school had notice of every
incident, which were recorded in the school’s incident reporting system.
Moreover, the plaintiff mother testified that she repeatedly contacted
the DOE defendants to express her concerns for J.A.’s safety. Under
these circumstances, the continuing wrong doctrine applies. The time
period for the plaintiffs to file their notice of claim regarding all of
the incidents began to run when the last incident occurred in May 2018.
Furthermore, as discussed more fully below, questions of fact exist
concerning whether the DOE defendants acted appropriately to adequately
supervise J.A., given the DOE defendants’ notice and knowledge. In
addition, because the DOE defendants allegedly were aware of a
continuing pattern of harassment, they had ample time to properly
investigate the plaintiffs’ claims and to obtain evidence. Accordingly,
the Supreme Court erroneously concluded that the claims based on
incidents that occurred outside the 90-day period prior to the filing of
the notice of claim were time-barred (see Motta v. Eldred Cent. Sch. Dist., 172 AD3d 1575).
B. The DOE Defendants’ Supervision of J.A.
As a threshold matter, to the extent that the plaintiffs allege
damages for any injuries that occurred off school grounds, including any
injuries resulting from the incident on March 6, 2018, which occurred
at a nearby store, J.A. was no longer in the DOE defendants’ custody
and/or under their control during that incident. Accordingly, the DOE
defendants cannot be liable for injuries arising from alleged incidents
which occurred off school grounds (see Donofrio v. Rockville Ctr. Union Free Sch. Dist., 149 AD3d 805).
1. Notice to the DOE Defendants
“Schools 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).
“`[I]n 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; that is, that the third-party acts could reasonably be
anticipated'” (A.P. v. John W. Lavelle Preparatory Charter Sch., 228 AD3d 138, 150, quoting Mirand v. City of New York, 84 NY2d at 49).
“Actual or constructive notice to the school of prior similar conduct
is generally required, and injury caused by the `impulsive,
unanticipated act of a fellow student ordinarily will not give rise to a
finding of negligence absent proof of prior conduct that would have put
a reasonable person on notice to protect against the injury-causing
act'” (J.S. v. Ramapo Cent. Sch. Dist., 205 AD3d 947, 948, quoting Mirand v. City of New York, 84 NY2d at 48).
“To find that a lack of adequate supervision is a proximate cause of a
student’s injury, it must be established that school authorities had
sufficiently specific knowledge or notice of the dangerous conduct which
causes the injury” (B.J. v. Board of Educ. of the City of N.Y., 172 AD3d 693, 694 [alteration and internal quotation marks omitted]).
Here, viewing the evidence in the light most favorable to the plaintiffs as the non-moving parties (see Qureschi v. Gleason, 231 AD3d 878, 879),
the DOE defendants failed to establish, prima facie, that they did not
have specific knowledge or notice of the dangerous conduct of J.A.’s
classmates such that the acts that led to his injuries could not have
been reasonably anticipated. As set forth in the discussion of the
timeliness of the notice of claim, the DOE defendants had notice of the
incidents that targeted J.A. On behalf of these defendants, Akil and
Cineus testified that they were aware of the specific incidents wherein
J.A. was assaulted and harassed. Moreover, the testimony of the
plaintiff mother details the repeated instances when she either
contacted school administrators to report incidents herself or was
contacted by school employees other than the administrators concerning
incidents involving J.A. She also testified that she and Young discussed
that the students who were harassing J.A. all belonged to the same
group of friends.
The evidence submitted in support of the motion clearly demonstrated
that the DOE defendants had actual notice of the prior similar conduct
by J.A.’s classmates and the continued verbal and physical harassment of
J.A., which gave the DOE defendants an opportunity to take proper
measures to protect J.A. while he was attending the school (see J.S. v. Ramapo Cent. Sch. Dist., 205 AD3d at 949; see also Nizen-Jacobellis v. Lindenhurst Union Free Sch. Dist., 191 AD3d 1007).
Since the DOE defendants failed to demonstrate their prima facie
entitlement to judgment as a matter of law dismissing the complaint
insofar as asserted against them based on lack of notice, this Court
need not consider the sufficiency of the plaintiffs’ submission in
opposition (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325).
2. The Adequate Supervision of J.A.
In examining the question of whether J.A. was adequately supervised,
that determination “`depends largely on the circumstances attending the
event'” (Sclafani v. Young Adult Inst., Inc., 240 AD3d 816, 817 [internal quotation marks omitted], quoting Mei Kay Chan v. City of Yonkers, 34 AD3d 540, 541).
“The adequacy of a school’s supervision of its students is generally
left to the trier of fact to resolve, as is the question of whether
inadequate supervision was the proximate cause of the plaintiff’s
injury” (id. at 817-818 [internal quotation marks omitted]; see also L.S. v. Massapequa Union Free Sch. Dist., 215 AD3d 708).
Here, viewing the evidence in the light most favorable to the plaintiffs as the non-moving party (see Qureschi v. Gleason, 231 AD3d 878, 879), the DOE defendants failed to establish, prima facie, that they provided adequate supervision to J.A. (see Sclafani v. Young Adult Inst., Inc., 240 AD3d at 818).
The record is replete with allegations of the DOE defendants’
indifference to the alleged wrongful actions of J.A.’s classmates. For
example, the incident in which J.A. was spat on was described as
accidental, and when J.A. attempted to report the incident during which
he was kicked in class, a teacher dismissed him by saying that she
“could not deal with crazy.” The school had knowledge of these repeated
incidents, yet Akil, the dean, testified that she did not believe that
J.A.’s safety was at risk or that there was a safety issue, describing
J.A.’s experiences as incidents that “happen in middle school
constantly.” There is no indication in the record that any plan was
devised for J.A.’s safety. Akil believed that J.A. was transferred to
another class, however she could not recall when J.A. was transferred or
whether it was related to the incidents. Cineus confirmed that J.A. was
moved to another class and also testified that J.A. was provided with a
paraprofessional. The record is unclear, though, as to whether the
paraprofessional was provided based on J.A.’s IEP or as a result of the
harassment and assaults he experienced. Cineus further testified that
J.A. was permitted to eat lunch in the school office. However, other
than providing J.A. with the paraprofessional and the option to eat
lunch in the school office, there is no evidence presented to show what
actions the DOE defendants took to protect J.A. Moreover, there is no
evidence in the record demonstrating that the DOE defendants consequated
the students allegedly harassing J.A. in an effort to stop their
pattern of harassing and assaultive behavior, other than Cineus stating
that she spoke to all of the students in J.A.’s classes and asked them
to be kind to one another.
Under these circumstances, the DOE defendants failed to establish
that any lack of supervision on their part was not a proximate cause of
J.A.’s injuries (see RT v. Three Village School Central School District, 153 AD3d 747).
Significantly, the deposition testimony of the school employees,
including regarding their failure to prepare an individual safety plan
for J.A., failed to eliminate triable issues of fact concerning whether
the DOE defendants took adequate steps to supervise the plaintiff and
prevent the incidents that led to J.A.’s injuries (see Sclafani v. Young Adult Institute, Inc., 240 AD3d at 818; J.S. v. Ramapo, 205 AD3d at 949; Nizen-Jacobellis v. Lindenhurst Union Free School District, 191 AD3d at 1008).
Instead, the evidence indicates that despite their notice and
knowledge, employees of the DOE defendants were indifferent to the
harassment that J.A. was enduring, describing the incidents as merely
the type that happen constantly at a middle school and testifying that
they did not believe J.A.’s safety was at risk.
Given that the DOE defendants failed to demonstrate their prima facie
entitlement to judgment as a matter of law dismissing the complaint
insofar as asserted against them based on a showing that they provided
J.A. with adequate supervision, this Court need not consider the
sufficiency of the plaintiffs’ opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325).
III. Conclusion
Accordingly, the order is modified, on the law, by deleting the
provision thereof granting that branch of the motion of the City and the
DOE defendants which was for summary judgment dismissing so much of the
complaint as was predicated on alleged incidents which occurred on
school grounds, insofar as asserted against the DOE defendants, and
substituting therefor a provision denying that branch of the motion; as
so modified, the order is affirmed insofar as appealed from.
BARROS, J.P., CHRISTOPHER and WARHIT, JJ., concur.
ORDERED that the order is modified, on the law, by deleting the
provision thereof granting that branch of the motion of the defendants
City of New York, New York City Department of Education, and Catherine
and Count Basie Middle School 72 which was for summary judgment
dismissing so much of the complaint as was predicated on alleged
incidents which occurred on school grounds, insofar as asserted against
the defendants New York City Department of Education and Catherine and
Count Basie Middle School 72, and substituting therefor a provision
denying that branch of the motion; as so modified, the order is affirmed
insofar as appealed from, with costs to the plaintiffs.”