Busby v. Ticonderoga Central School District

222 A.D.2d 882, 636 N.Y.S.2d 131, 1995 N.Y. App. Div. LEXIS 12877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1995
• Status: Published

Opinion

Mikoll, J.

Appeal from an order of the Supreme Court (Dawson, J.), entered March 27, 1995 in Essex County, which denied defendants’ motions for summary judgment dismissing the complaint.

This action stems from an altercation between two students of defendant Ticonderoga Central School District in which, according to plaintiffs complaint, Jeremy Busby was assaulted by Robert Fleury, Jr. as he was boarding a bus owned by de-. fendant Bridgewater Transport Company and used for transport of students. Plaintiff sued defendants for personal injuries sustained on behalf of Jeremy Busby. After interposing an answer, defendants moved for summary judgment dismissing the complaint, which was denied by Supreme Court. This appeal by defendants ensued.

There should be an affirmance. A party opposing a motion for summary judgment is allowed considerable leeway in demonstrating an acceptable excuse for the failure to meet the strict pleading requirements of CPLR 3212 (see, River Bank Am. v Daniel Equities Corp., 213 AD2d 929). At the time defendants brought the motion, depositions had not yet been conducted of witnesses to the actual event and to Fleury’s aggressive behavior prior to the assault. Since this proof was necessary for plaintiff to establish his claim of negligent supervision (see, e.g., Mirand v City of New York, 84 NY2d 44, 49), the motions were properly denied.

Cardona, J. P., Crew III, Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.