France v New York City Bd. of Educ.

France v New York City Bd. of Educ. 2007 NY Slip Op 03842 [40 AD3d 268] May 3, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Marsha E. France, Respondent,
v
New York City Board of Education, Appellant.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), for respondent.

Order of the Appellate Term of the Supreme Court, First Department, entered October 18, 2005, which affirmed an order of Civil Court, New York County (Donna G. Recant, J.), entered October 8, 2003, denying defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff school employee has failed to raise triable issues of fact regarding whether a school safety agent, in undertaking to resolve a confrontation between plaintiff and an angry parent, had assumed an affirmative duty to act, giving rise to a special duty (see Pascucci v Board of Educ. of City of N.Y., 305 AD2d 103 [2003]). The school safety agent witnessed a confrontation between plaintiff and the parent and attempted to separate the two, advising plaintiff to walk away. When plaintiff walked back to a staircase to return to her classroom, in a matter of seconds the parent followed her into the stairwell, where he attacked her. The record does not support plaintiff's contention that the agent was aware that the allegedly belligerent parent posed a threat of violence, nor that there was inaction on the agent's part that posed a risk of harm to plaintiff. Finally, there is no evidence of record that plaintiff relied on the agent to protect her from harm. Concur—Mazzarelli, J.P., Andrias, Gonzalez, Catterson and Malone, JJ.