France v New York City Bd. of Educ.

[*1] France v New York City Bd. of Educ. 2005 NY Slip Op 51646(U) [9 Misc 3d 133(A)] Decided on October 17, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 17, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. PHYLLIS GANGEL-JACOB, Justices.
570479/04

Marsha E. France, Plaintiff-Respondent, THE

against

New York City Board of Education, Defendant-Appellant.

Defendant appeals from an order of the Civil Court, New York County, entered October 8, 2003 (Donna G. Recant, J.) which denied its motion for summary judgment dismissing the complaint.

PER CURIAM:

Order entered October 8, 2003 (Donna G. Recant, J.) affirmed, with $10 costs.

In this personal injury action, Civil Court properly denied defendant's motion for summary judgment dismissing the complaint. Plaintiff, a paraprofessional at an elementary school, was injured when she was assaulted by a parent of a student in her class while attempting to have the parent removed from the building premises prior to the conclusion of the regular school day. Although defendant did not owe plaintiff a special duty of protection because of her status as a school employee and the existence of a general security plan (see Vitale v City of New York, 60 NY2d 861 [1983], rearg denied 61 NY2d 759 [1984]), a triable issue of fact exists as to whether defendant assumed an affirmative duty to protect plaintiff from assault by the trespassing parent (see Palaez v Seide, 2 NY3d 186, 202 [2002]; Cuffy v City of New York, 69 NY2d 255, [*2]260 [1987]).

The record indicates that plaintiff approached the security guard at the guard's first floor desk and asked for assistance, at which time the parent, whom plaintiff initially observed upstairs outside of her classroom, reappeared. A heated verbal confrontation ensued between plaintiff and the parent. The guard intervened and tried to separate the two, directing plaintiff to "back off" or "walk away". As plaintiff left and began to walk upstairs moments later, the parent followed plaintiff and punched her. On this fact pattern, a jury reasonably could find that the guard's conduct in interceding was an implicit promise to act on plaintiff's behalf and assume the obligation to protect her from the parent, upon which plaintiff could rely (see Pascucci v Board of Educ. of City of New York, 305 AD2d 103 [2003]; Bloom v City of New York, 123 AD2d 594 [1986]; cf. Blanc v City of New York, 223 AD2d 522 [1996]). Plaintiff's evidence thus raised an issue of fact as to whether defendant's agent assumed a duty of protection.

This constitutes the decision and order of the Court.
Decision Date: October 17, 2005