Chetrick, P.C., New York, NY, for appellants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis
& Fishlinger, Uniondale, NY (Christine Gasser of
counsel), for respondents.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal, as limited by their brief, from (1) so
much of an order of the Supreme Court, Nassau County (Parga,
J.), entered April 7, 2015, as granted that branch of the
motion of the defendants Rockville Centre Union Free School
District and Southside Middle School which was for summary
judgment dismissing the complaint insofar as asserted against
them, and (2) so much of a judgment of the same court dated
April 27, 2015, as, upon the order, is in favor of the
defendants Rockville Centre Union Free School District and
Southside Middle School and against the plaintiffs dismissing
the complaint insofar as asserted against those defendants.
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is affirmed insofar as
appealed from; and it is further, ORDERED that one bill of
costs is awarded to the defendants Rockville Centre Union
Free School District and Southside Middle School.
appeal from the order must be dismissed because the right of
direct appeal therefrom terminated with the entry of judgment
in the action (see Matter of Aho, 39 N.Y.2d 241,
248). The issues raised on the appeal from the order are
brought up for review and have been considered on the appeal
from the judgment (see CPLR 5501[a]).
December 17, 2012, the 12-year-old infant plaintiff, a
seventh-grade student at the defendant Southside Middle
School within the defendant Rockville Centre Union Free
School District (hereinafter together the defendants),
allegedly sustained injuries when he was struck by a car
while crossing Lakeview Avenue, at or near its intersection
with North Forest Avenue, in Rockville Centre, after being
dismissed from school. Prior to the accident, the infant
plaintiff had attempted to board the school bus, but he was
denied entry because he did not have his bus pass. The infant
plaintiff immediately called his mother and they agreed that
she would meet him halfway home. As the infant plaintiff was
walking home on Lakeview Avenue, which was located about a
block from the school, his mother called him back and told
him to cross Lakeview Avenue. The infant plaintiff attempted
to cross the avenue and was struck by a vehicle operated by
the defendant Guiseppe DiPaolo.
school's duty to supervise the students in its charge
arises from its physical custody and control over them
(see Chainani v Board of Educ. of City of N.Y., 87
N.Y.2d 370, 378; Hernandez v City of New York, 147
A.D.3d 821; Begley v City of New York, 111 A.D.3d 5,
23). "When that custody ceases because the child has
passed out of the orbit of its authority in such a way that
the parent is perfectly free to reassume control over the
child's protection, the school's custodial duty also
ceases" (Pratt v Robinson, 39 N.Y.2d 554, 560;
see Pistolese v William Floyd Union Free Dist., 69
A.D.3d 825, 826). "Generally, a school cannot be held
liable for injuries that occur off school property and beyond
the orbit of its authority" (Vernali v Harrison
Cent. School Dist., 51 A.D.3d 782, 783).
the defendants established their prima facie entitlement to
judgment as a matter of law by demonstrating that the infant
plaintiff had left school grounds with the permission of his
mother and, thus, was no longer in the defendants'
custody or under their control and was outside the orbit of
their authority (see Hernandez v City of New York,
147 A.D.3d at 821; Pistolese v William Floyd Union Free
Dist., 69 A.D.3d at 826; Vernali v Harrison Cent.
School Dist., 51 A.D.3d at 783). The defendants also
demonstrated, prima facie, that the infant plaintiff was not
released into a foreseeably hazardous setting that the
defendants had a hand in creating (see Diaz v Brentwood
Union Free Sch. Dist., 141 A.D.3d 556, 558; cf.
Ernest v Red Cr. Cent. School Dist., 93 N.Y.2d 664,
672). In opposition, the plaintiffs failed to raise a triable
issue of fact.
the Supreme Court properly granted that branch of the
defendants' motion which was for summary judgment