GEICO v St. Agnes Academic School

[*1] GEICO v St. Agnes Academic School 2006 NY Slip Op 52159(U) [13 Misc 3d 1238(A)] Decided on September 30, 2006 Supreme Court, Nassau County Winslow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 21, 2006; it will not be published in the printed Official Reports.

Decided on September 30, 2006
Supreme Court, Nassau County

GEICO a/s/o Steven Hunchik and Nicole Hunchik, Plaintiffs,

against

St. Agnes Academic School and Roman Catholic Diocese of Brooklyn, Defendants



6697/05

F. Dana Winslow, J.

This action arises from subrogation claims for uninsured motorist benefits paid by plaintiff G.E.I.C.O. as a result of a motor vehicle accident which occurred on May 31, 2002. Defendants, ST.AGNES ACADEMIC SCHOOL ("SCHOOL") and the ROMAN CATHOLIC DIOCESE OF BROOKLYN ("RCDB"), in their motion and cross motion, seek dismissal pursuant to CPLR §3211(a)(1) and CPLR §3211(a)(7) on grounds that plaintiff's claims are barred by documentary evidence and that the complaint fails to state a cause of action. Defendant, RCDB, also seeks to dismiss the action pursuant to CPLR §3211(a)(5). In addition, SCHOOL seeks summary judgment pursuant to CPLR §3212. [*2]

In this case, SCHOOL contacted Institutional Services Inc. ("ISI"), a corporate entity which provides various purchasing services to religious institutions, and requested transportation services for students to Great Adventure in Jackson, New Jersey sometime prior to May 31, 2002. Subsequently, ISI initiated a contract with Trans Classic Coach Corp. ("TRANS"), a bus company, to provide buses for said event. TRANS allegedly then subcontracted the transportation services to an uninsured bus company named Watts Tours who provided two uninsured buses for the event. These buses collided with one another at a toll plaza on May 31, 2002 causing plaintiff's subrogee to suffer personal injuries.

On a motion to dismiss, plaintiff does not have to prove its claims in order for the action to survive. The governing standard is well- established:

"On a motion to dismiss pursuant to CPLR §3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefits of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Under CPLR §3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. In assessing a motion under CPLR §3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Leon v. Martinez , 84 NY2d 83, 87-88. See also Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314, 326.

With respect to RCDB's motion to dismiss based on documentary evidence pursuant to CPLR §3211(a)(1) RCDB submits a confirmation agreement' between ISI and TRANS regarding the provision of buses to transport students from SCHOOL to Jackson, NJ. This confirmation agreement', however, does not substantiate the defendants' claims, as it merely shows an agreement between the busing company TRANS and ISI, for transportation services to and from SCHOOL. It does not specify terms nor is it signed by either party involved. Accordingly, the court finds that this document is an estimate and not binding, and does not illuminate any other issues or support the claims made in this case.

The Court further observes that in the cross-motion submitted by SCHOOL there was mention of a contract' which required that TRANS meet certain insurance requirements as well as forbidding TRANS from subcontracting the work to other bus companies. However, the contract was not included in either of the defendants' motion papers and as such the Court has no basis to consider these allegations. Without evidence [*3]of contractual obligations, the Court finds no reason to dismiss the plaintiff's cause of action. The Court notes that the documentary evidence submitted, in the form of a confirmation agreement', fails to establish with whom liability rests when the transportation services were provided. Consequently, plaintiffs are entitled to discovery in an attempt to prove their claim.

Unless the claims are patently or demonstrably frivolous, the Court's inquiry is limited to their sufficiency, as opposed to their merit. See 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144. Based on this standard, the Court finds plaintiff has alleged facts sufficient to survive a motion to dismiss pursuant to CPLR §3211(a)(1).

The Court notes that defendants are correct in asserting that TRANS is the primarily liable individual. However, a question arises as to what obligations and duties a school actually has towards its students. Prior court decisions have abrogated the obligations once the school has entered into an agreement with an independent contractor. "Where the school district has engaged an independent contractor to provide busing, the school is not responsible for the students safety once the children board the contractor's bus and consequently the school district is not directly or vicariously liable for any violation of the Vehicle and Traffic Law § 1174 (b) by the independent contractor." Chainani v. Board of Educ., 87 NY2d 370, *372. See Womack v. Duvernay, 229 AD2d 488.

The termination of the school's obligation, however, cannot exempt SCHOOL from liability without restriction or constraint. This Court finds that an exception to this ruling is warranted as follows: Once St. Agnes knew or should have known that the buses which ISI would supply were not being provided a reasonable inspection, as may be required, including a request to see the drivers' license and registration, proof of insurance, and to make a telephone call to ISI to confirm that the substitution was consistent with the standards established between the two entities and the industry.

Moreover, the Court holds that RCDB cannot be held responsible as it is not a proper party in this action. RCDB does not owe a duty to the students of ST. AGNES nor do they hold a role as a guardian.

We have examined the parties remaining contentions and find them to be without merit. Accordingly, it is

ORDERED, that defendant, SCHOOL motion to dismiss the complaint pursuant to CPLR §3211(a)(1) and CPLR §3211(a)(7) is denied; and it is further . [*4]

ORDERED, SCHOOL's motion for summary judgment pursuant to CPLR §3212 is denied; and it is further

ORDERED, that defendant, RCDB's motion to dismiss pursuant to CPLR §3211(a)(7) is granted.

ORDERED, that defendant RCDB is directed to serve a copy of this Order upon all parties, within 15 days of entry in the records of the Nassau County Clerk.

This constitutes the Order of the Court.

Dated: September 30, 2006

ENTER:

________________________________

J. S. C.