Moores v. City of Newburgh School District

237 A.D.2d 265, 655 N.Y.S.2d 411, 1997 N.Y. App. Div. LEXIS 2176

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Orange County (DiBlasi, J.), dated February 22, 1996, which granted the defendant’s motion to renew a prior motion for summary judgment dismissing the complaint, and, upon renewal, granted the motion and dismissed the complaint.

Ordered that the order is affirmed, with costs.

The infant plaintiff was injured as a result of an incident which occurred in a classroom at the defendant’s school. While the teacher was outside the classroom, two boys were tossing an eraser back and forth. One of the boys missed the eraser and it hit a third student in the face. In response, the third student picked up a desk and threw it causing the infant plaintiff to sustain injuries.

We agree with the Supreme Court that the defendant was entitled to summary judgment, as none of the evidence submitted, including the defendant’s records concerning prior disciplinary problems with the third student, created an issue of fact as to whether the defendant had actual or constructive notice of prior similar conduct by the third student who caused the harm (see, Mirand v City of New York, 84 NY2d 44). Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.