(dissenting in part). We are all in agreement that, at the close of plaintiffs’ case, the trial court properly dis*250missed the case as against defendant, the City of New York. My point of divergence arises from the dismissal as against defendant, the Board of Education. My colleagues are of the opinion that this was improper. Accordingly, they would reverse and remand the matter for a new trial as against the Board only. Inasmuch as I am of the opinion that the trial court properly dismissed the action as to both defendants, I dissent and would affirm.
At the times pertinent to this action, plaintiff Joan Rubino was employed as a "cluster” teacher by the Board. Included among her duties was the conducting of classes for emotionally disturbed students, classes for regular students and classes for those specially gifted.
Mrs. Rubino was assigned to P.S. 59 in The Bronx, located on Bathgate Avenue, some blocks north of Tremont Avenue. Her duties required her to spend time at the Monterrey Annex of P.S. 59, located approximately 2 or 3 blocks distant from the main building.
The Monterrey Annex is a one-story building, shaped in the form of a V or U, with a play yard located in the middle. The yard is totally enclosed; on one side by the school building, and, on the other, by a link fence reaching almost to the height of the school building. Bordering the fence is an apartment building and an empty lot.
The evidence at the trial, which was limited to the issue of liability only, indicated that on April 21, 1980, Mrs. Rubino had taught a class immediately preceding the lunch period, covered the lunch period and then taken the lunch period class, her second class of the day, to the school yard. However, a fight broke out among the children and she husbanded them back into the school building. At the time, she promised them that if they completed their regular work before the period ended she would again take them to the yard. The regular work was completed at about 2:15 p.m. and the children and Mrs. Rubino returned to the yard. Some 5 or 10 minutes later, a cylindrical metal object which weighed some 4% ounces, having a diameter of three quarters of an inch and a depth of VA inches came hurtling over the link fence and struck Mrs. Rubino in the left knee. She testified that some of the children screamed that "some boys had thrown something at me”, testimony which the trial court permitted under the excited utterance exception to the hearsay rule. After Mrs. Rubino was hit by the object she fell to the ground. Another teacher *251helped her into the school building and shortly thereafter she was taken to the hospital.
Additionally, there was testimony that, over a four-year period, running from 1974 to 1978, some two years prior to the incident here involved, there were several occasions on which raw eggs, buckets of water, rubble and debris had been thrown into the yard and that, by reason thereof, the assistant principal then in charge of the Annex had directed that the school yard not be used, a directive which, apparently, was ignored. Other testimony indicated that some 2 or 3 such incidents had occurred subsequent to 1978 and as late as January, February or March 1980.
At the close of plaintiffs’ case, defendants moved to dismiss on the ground that plaintiffs had failed to establish a prima facie cause of action. After extended legal argument the trial court recessed for the day. The following morning the court opened the proceeding with the following statement: "After much blood and sweat and tears and being up at 5:30 this morning, I have come to the unhappy conclusion that I must dismiss the complaint”. It then proceeded to read into the record its formal decision.
At trial, as in this court, plaintiffs recognized the dichotomy, long embodied in the law, which fixed liability on a governmental entity on the basis of ordinary negligence when such entity is acting in a proprietary capacity (Miller v State of New York, 62 NY2d 506; Preston v State of New York, 59 NY2d 997), but which exempts such entity from liability for negligence when acting in the performance of a governmental function unless it has assumed a special relationship or responsibility to the person injured (Sorichetti v City of New York, 65 NY2d 461; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Vitale v City of New York, 60 NY2d 861; Hiss v City of New York, 22 NY2d 579; Schuster v City of New York, 5 NY2d 75; Garrett v Town of Greece, 78 AD2d 773, affd 55 NY2d 774; Glick v City of New York, 53 AD2d 528, affd 42 NY2d 831). However, plaintiffs argue that the maintenance of schools, colleges, housing developments and other functions are performed by private as well as governmental bodies and are, therefore, entitled to no greater immunity than are these private institutions. With this as foundation stone, plaintiffs proceed to argue that, by reason of the prior incidents, it was foreseeable that injury would occur and the failure of the Board to guard against recurrence subjected it to liability.
*252The argument, however carefully crafted, falls because its major premise is flawed. NY Constitution, art XI, § 1 expressly provides: "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated”. Pursuant to the authority vested in it by the Constitution, the Legislature has enacted a comprehensive Education Law which makes compulsory the attendance at school of minors between the ages of 6 and 16 (§ 3205) and specifies the nature of the instruction to be given (§ 3204). It further provides for the acquisition of sites at which such instruction is to be given and delegates the day-to-day operation to Boards of Education and professional staffs. It also provides for the selection of teachers and supervisory staff and the salaries which shall be paid to them. In addition, it provides that there shall be school budgets and the manner in which they shall be fixed. In sum, the entire organizational structure of the school system is mandated by law. All that remains open is the day-to-day operation of the classroom.
This complete control of the primary and secondary school system pyramids upward into the office of the Commissioner of Education who "shall have general supervision over all schools and institutions which are subject to the provisions of this chapter, or of any statute relating to education” (§ 305 [2]). In sum, these provisions make abundantly clear that the operation of the common schools of the City of New York is a governmental function. The operation of that system is delegated to the Board of Education and through it to local community boards.
Since it is not claimed that the Board assumed any special relationship or responsibility to Mrs. Rubino, no liability accrued to it for the injury suffered by her.
Plaintiffs place great reliance on Miller v State of New York (62 NY2d 506, supra) to support their claim that the Board, in the operation of the school system, is acting in a proprietary capacity. In that case, plaintiff was a student at a State university and resided in a dormitory owned and operated by the school. She was confronted in the laundry room of her residence hall by a man wielding a "large butcher knife”, who dragged her to a third floor dormitory room and there raped her twice. In her action against the State she advanced two separate theories of liability; one predicated on the failure of the university to provide adequate police protection and the other, that in renting dormitory rooms to students, it was *253acting as a landlord, i.e., in a proprietary capacity, and hence, was entitled to no greater immunity than a private landlord. While the first theory was held inadequate to establish liability, the second theory was sustained. As landlord, the university was held to the same accountability as a private landlord under the principles of tort law (Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Loeser v Nathan Hale Gardens, 73 AD2d 187; Sherman v Concourse Realty Corp., 47 AD2d 134).
That Miller (supra) is not applicable to the facts in this case is made abundantly clear by Glick v City of New York (53 AD2d 528, affd 42 NY2d 831, supra) and Vitale v City of New York (60 NY2d 861, supra). In Glick, a teacher was raped by a student in a teachers’ ladies’ room. In Vitale a teacher was assaulted by one of the students when he sought to break up an altercation in the hallway of the school. In each case liability was sought to be bottomed on the failure to provide adequate protection. In each case governmental immunity was invoked and sustained on the ground that no special relationship existed and, in the absence of a special duty, no liability existed.
In these circumstances, I am of the opinion that the trial court properly determined that the Board was not liable. Accordingly, I would affirm the judgment appealed from.
Murphy, P. J., Sandler and Asch, JJ., concur with Ellerin, J.; Bloom, J., dissents in part in a separate opinion.
Judgment, Supreme Court, Bronx County, entered on April 27, 1984, unanimously modified, on the law, insofar as it directs a dismissal of the complaint against the defendant Board of Education, the complaint reinstated, a new trial directed as against that defendant, and, as so modified, otherwise affirmed, without costs and without disbursements.