State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 520231 

________________________________

MELISSA B. LaVALLEY, as Parent

and Guardian of NICHOLAS J.

LaVALLEY, an Infant,

Respondent,

v MEMORANDUM AND ORDER

NORTHEASTERN CLINTON CENTRAL

SCHOOL DISTRICT et al.,

Appellants.

________________________________

Calendar Date: June 3, 2015

Before: Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

__________

Kelly & Leonard, LLP, Ballston Spa (Michael Regan of

Congdon, Flaherty, O'Callaghan, Reid, Donlan, Travis &

Fishlinger, Uniondale, of counsel), for appellants.

Law Office of Stephen A. Johnston, Plattsburgh (Stephen A.

Johnston of counsel), for respondent.

__________

Rose, J.

Appeal from an order of the Supreme Court (Muller, J.),

entered September 3, 2014 in Clinton County, which denied

defendants' motion for summary judgment dismissing the complaint.

Plaintiff commenced this action seeking to recover for

injuries sustained by her son, Nicholas J. LaValley, when he was

assaulted by Timothy Breyette, a fellow ninth grade student at 

the high school in defendant Northeastern Clinton Central School

District. After joinder of issue and discovery, defendants moved

for summary judgment dismissing the complaint. Supreme Court
-2- 520231 

denied the motion and defendants appeal. 

"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

[1994] [citations omitted]). Where a fellow student

intentionally injures another, the duty is breached if the school

had actual or constructive notice of the conduct that caused the

injury such that the acts of the fellow student could have been

reasonably anticipated (see Hofmann v Coxsackie-Athens Cent.

School Dist., 70 AD3d 1116, 1117 [2010]; Wilson v Vestal Cent.

School Dist., 34 AD3d 999, 1000 [2006]; Druba v East Greenbush

Cent. School Dist., 289 AD2d 767, 768 [2001]). The adequacy of

supervision and proximate cause are generally issues of fact for

the jury (see Conklin v Saugerties Cent. Sch. Dist., 106 AD3d

1424, 1426 [2013]; Wood v Watervliet City School Dist., 30 AD3d

663, 664 [2006]). 

Viewing the evidence in the light most favorable to

plaintiff as the nonmovant (see Renwick v Oneonta High School, 77

AD3d 1123, 1124 [2010]; Wood v Watervliet City School Dist., 30

AD3d at 664), we note that Breyette had a history of assaultive

behavior, including a previous assault against LaValley in middle

school that resulted in Breyette's out-of-school suspension. 

There is also evidence that, within the month prior to the

assault, Breyette specifically threatened violence against

LaValley, and plaintiff testified that she immediately informed

the high school principal about this threat. Plaintiff also

testified that she brought up the conflict between LaValley and

Breyette during a meeting with the principal and her son's

teachers. Although the principal acknowledged that plaintiff had

informed him about the conflict and he testified that he spoke to

Breyette about it, Breyette denied that the principal had spoken

to him prior to the attack. The attack itself occurred in the

school cafeteria, in close proximity to a teacher who had not

been notified of the threat or the conflict between the two

students. According to Breyette, he calmly approached LaValley,

called his name to get his attention and proceeded to punch him

in the head 37 times without any adult intervention. He did not

stop until another student intervened. In light of this
-3- 520231 

evidence, we agree with Supreme Court that factual issues exist

with respect to the adequacy of defendants' supervision and

whether the lack of adequate supervision was a proximate cause of

LaValley's injuries (see Hofmann v Coxsackie-Athens Cent. School

Dist., 70 AD3d at 1118; Wilson v Vestal Cent. School Dist., 34

AD3d at 1001; Druba v East Greenbush Cent. School Dist., 289 AD2d

at 768). 

Peters, P.J., McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court