The school of hard knocks.

At the § 50-h hearing, the infant plaintiff testified that three days before the incident which triggered the complaint, another student at his junior high school entered plaintiff's classroom, challenged him to a fight, and threw plaintiff's hat, which was on his desk, to the floor. The teacher ejected the other student from the classroom, but the next day he was back and, once again, he challenged plaintiff to a fight. This time the teacher merely instructed the students not to pay any attention to the intruding student.

On the day of the incident at issue, while plaintiff was in the basement lunchroom during lunch period, the same other student started staring aggressively at plaintiff. Fearing that the other student was going to hit him, plaintiff told the teachers in the lunchroom what was happening, but they were busy and told him they could not do anything.

Shortly thereafter, the other student approached plaintiff and pushed him. One of the counselors who was present in the lunchroom saw the contact, separated the boys, and directed them to leave the basement by different stairways. When plaintiff returned to the area of the second floor outside of his classroom, he was approached again by the other student, who this time had three friends with him. Plaintiff swung at the other student but missed, and the other student punched plaintiff in the mouth, breaking a tooth.

The Second Department denied defendant's motion for summary judgment, in Ambroise v. City of New York, which was decided on October 16, 2007. The court noted that liability for injuries resulting from a fight between two students cannot be predicated on negligent supervision if the plaintiff was a voluntary participant in the fight, and found that, on these alleged facts, there was a triable issue as to whether plaintiff was participating voluntarily in the fight, or was acting in self-defense.