Kessler v Zion

[*1] Kessler v Zion 2009 NY Slip Op 51178(U) [23 Misc 3d 1137(A)] Decided on June 11, 2009 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 16, 2009; it will not be published in the printed Official Reports.

Decided on June 11, 2009
Supreme Court, Kings County

Abraham Kessler, infant by his father and natural guardian Mayer Kessler, Plaintiff,

against

Bobover Yeshiva Bnei Zion and Gennadiy M. Nemtsov, Defendants.



32499/05



Plaintiff

Subin Associates

NY NY

Defendant

Catalano Gallardo & Petropoulos, LLP

Jericho NY

Arthur M. Schack, J.

In this personal injury action on behalf of infant ABRAHAM KESSLER

(ABRAHAM), by his father and natural guardian MAYER KESSLER (MAYER), then eight-year-old ABRAHAM was struck by a car driven by defendant GENNADIY M. NEMTSOV (NEMTSOV), shortly after his dismissal from the school operated by defendant BOBOVER YESHIVA BNEI ZION (BOBOVER). The accident occurred on March 16, 2005, at approximately 4:15 P.M., on 48th Street, between 15th and 16th Avenues, in Borough Park, Brooklyn, New York. On August 15, 2008, in a short-form order, I granted in full the motion of defendant BOBOVER for summary judgment and dismissal of plaintiff's complaint against it.

Plaintiff moves in a timely manner, pursuant to CPLR Rule 2221, for leave to reargue [*2]BOBOVER's summary judgment motion and if the Court grants leave to reargue for an order modifying the Court's dismissal of plaintiff's complaint against BOBOVER. Plaintiff's instant motion to reargue is based upon "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." (CPLR Rule 2221 [d] [2]).

After extensive oral argument by counsel for ABRAHAM and BOBOVER and a review of all papers presented to the Court with respect to the instant motion, this Court grants plaintiff's motion to reargue and finds that this Court overlooked matters of fact or law in its August 15, 2008 order. Therefore, plaintiff's motion to reargue is granted and the prior granting of summary judgment to defendant BOBOVER is modified in that:

summary judgment for defendant BOBOVER continues with respect to plaintiff's negligent supervision claims; and, there exist triable issues of fact whether defendant BOBOVER negligently created a hazardous condition by illegally barricading the corner of 48th Street and 15th Avenue and expanding its "orbit of authority" to the roadway of 48th Street, between 15th and 16th Avenues, which caused and/or contributed to the serious injuries suffered by plaintiff as a result of the March 16, 2005-accident.

Background

Plaintiff ABRAHAM, born in 1996, was a student at BOBOVER's yeshiva, at 1533 48th Street. His supplemental bill of particulars, in ¶ 2, describes the accident, stating that "plaintiff was playing in a closed road during school recess without proper supervision when he was struck by defendant's [NEMTSOV's] vehicle. The road was closed with saw horses that were removed without proper supervision." [Emphasis added]. ABRAHAM, according to ¶ 8 of his bill of particulars, was admitted to Lutheran Medical Center on the day of the accident and was a patient for eight days, suffering from multiple injuries, including fractures of the skull, facial bones, nasal bones, left tibia and fibula, loss of consciousness, cerebral edema, multiple contusions, and depression

Plaintiff alleges, in ¶ 11 of his corrected verified complaint and in ¶ 7 of his bill of particulars, that BOBOVER caused the accident by virtue of negligent supervision of the school's pupils and "in failing to properly and in improperly supervising children by allowing them to play in the roadway and failing to properly secure the roadway from moving traffic, all of which the defendants had constructive and/or actual notice thereof." [Emphasis added].

It is undisputed that defendant BOBOVER, at various times of the school day, placed barricades and saw horses at the corner of 48th Street and 15th Avenue to stop vehicular traffic from entering 48th Street, an eastbound one-way street, with traffic moving from 15th Avenue to 16th Avenue. Jonathan Muller, employed by BOBOVER as an Assistant Principal at its afternoon yeshiva session, was deposed [exhibit I of summary judgment motion]. He testified about BOBOVER's closing of 48th Street to vehicular traffic from 15th to 16th Avenue. Mr. Muller stated, at p. 19, lines 10-11, in answer to whether there was "a written policy and procedure in place governing monitoring the outside street area?" that "I am not aware of such a piece of paper." In describing how BOBOVER controls traffic on 48th Street from 15th to 16th Avenue, he testified at p. 21, lines 19 - 24, that "[t]here is a monitor at the corner. One of the school personnel stands at the corner and barricades. There's a barricade in the street, so any traffic coming through 15th Avenue will not be allowed down the street, period, because the kids play in the street." [Emphasis added]. [*3]

Further, Mr. Muller testified, at p. 22, lines 4 - 22:

Q. Is there more of a process you want to describe in terms

of if cars want to get onto the street? I want you to describe the

whole process for me.

A. If a person lives on the street and tells the monitor so

he lives on the street or if he has a delivery or car service or somebody

that needs to be on this particular street, then the monitor would

open the barricade and would allow the car to come down the street

after telling him to drive down slowly and carefully, because there

are children playing there and the children move off to the side and

let the car pass to do whatever he's supposed to. Other than that,

they don't allow any cars down the street because the children

are there.

Q. When the street is closed like this, does the school have

a permit to blockade the street?

A. I can't answer the question. I am sorry, I don't know.

[Emphasis added]

Then, Mr. Muller, at pp. 30 - 32, described the procedures for closing the street each school day for dismissal of third and fourth grade boys, including ABRAHAM, from about 3:45 P.M. to 4:10 P.M. Mr. Muller, at p. 32, testified that on the day of plaintiff's accident, Mr. Klein was the monitor at the gates blocking 48th Street at 15th Avenue. He testified, at p. 34, lines 3 - 7, that Mr. Klein, soon after the accident, told him that defendant NEMTSOV's car "had just come down the block, because he had opened the gate. There was a car that came down the block, hit Abraham Kessler, who was crossing from the other side of the street towards the school." Mr. Muller testified, at pp. 35 - 36, that Mr. Klein would be assisted at the 48th Street and 15th Avenue gates by eighth grade boys, wearing sashes with AAA badges, acting as monitors. He stated, at p. 37, line 8 - p. 38, line 3:

Q. Now, before the children were allowed to be monitors

or assist in the monitoring of the 15th Avenue barricade, let's call

it, were they given any type of training or what they're supposed

to do and how?

A. General, yes.

Q. What type of training would they receive?

A. They got instructions from either the principal or from

the person at the gate, how they're to behave at the corner or they'll

lose their privilege to be a monitor because it's an honor to be a

monitor.

Q. Did you ever give instruction to children in terms of

monitoring the gate prior to March 16, 05?

A. I might have told the children how to behave at the gate,

how to be respectful to cars coming in, who to let in and not let in.

Mr. Muller, at pp. 73 - 74, testified that BOBOVER's yeshiva did not have a gym and that a small enclosed play was on the 47th Street side of the school. Further, at p. 74, lines 8 - 9, he [*4]stated "that's why we have 48th Street as our designated play area."

David Fischer, a sixth grade English teacher was deposed [exhibit J of summary judgment motion]. Mr. Fischer testified, at p. 6, that he was the only school employee manning the 48th Street and 15th Avenue barricades at the time of plaintiff's accident, along with, at pp. 7 - 8, student monitors. This contradicts Mr. Muller, who testified that Mr. Klein was the school employee at the barrier prior to plaintiff's accident. Mr. Fischer was asked at p. 8, lines 12 -13, "[w]hat was the purpose of you being out on that particular corner period." He answered, at p. 8, lines 14 -15, "[t]o prevent any cars to come down the street during the recess." Then, at pp. 9 - 11, he testified that he barricaded the corner at about 3:45 P.M. each school day. Mr. Fischer stated, at p. 12, that he was assigned by Mr. Muller, whom he called "Rabbi Miller," to close off the street each school day at about 3:45 P.M. Asked at p. 12 what he was told to do each day, Mr. Fischer answered, at lines 24 -25, "[j]ust stop the cars from coming down," and at p. 13, line 5, "until the bell went off." The following questions and answers were given at p. 13, line 6 - p. 14, line 6:

Q. Were you given any written instructions, any written

rules or regulations or procedures to follow, in doing that?

A. Written, no.

Q. If, during that period of time, a resident, who lived on

that particular street, needed to drive down the street to get to his

or her home, what procedure would you follow?

A. I would allow them to go down.

Q. Did you have a procedure in terms of what to do, before

you would reopen the street, at the end of the recess period?

A. Yes.

Q. And what was that procedure?

A. The alarm went off, I told the kids they have to go up,

and then I moved the gait [sic] onto the sidewalk.

Q. What alarm would go off?

A. They have some kind of a - - like a - - at the end of the

recess, you know, like you have in public school, whatever, you

know, that time was up.

Then, Mr. Fischer testified, at p. 14, that he did not know the dismissal time for any of the lower grades, which included plaintiff. The following colloquy took place at p. 14, line 20 - p. 15, line 23:

Q. Do you know whether or not the street was barricaded

at all, after 4:05, as part of dismissal of any of the lower grades?

A. No.

Q. No, it not or no, you don't know?

A. No, I don't know.

Q. How about pickup for any of the children that would

be dismissed in the lower grade, the ones that don't walk home

and travel home by bus, would buses be parked anywhere near the

school? [*5]

A. I don't remember the buses being on that street.

Q. Were there any occasions where you had to move the

barricade, during your recess period, to allow any of the buses that

were going to transport home any of the lower grade children to

come onto the street, to park, to load up?

A. No.

Q. Would you remove the barricade before the street was

clear of children?

A. Once the bell went off, I tell the kids to go up. Once

I see the kids going up, that's when I move the barricade. [Emphasis

added]

Q. Where did you move the barricade to?

A. Onto the sidewalk.

Mr. Fischer, when asked specifically about the day of plaintiff's accident, testified at p. 21, line 21 - p. 22, line 6:

Q. When you removed the barricade at the end of the recess

session that afternoon, were there any vehicles waiting to enter onto

the roadway?

A. I don't recall. I just know I removed the barricade onto

the sidewalk and I started going up.

Q. Do you know which children were out with you at the

barricade that afternoon?

A. No.

Mr. Fischer was asked at p. 27, lines 23 -24, "[d]o you know if the school had a permit to cordon off the street." He answered at p. 28, line 3 - 5, "I don't think they did. I'm not sure, but I don't think they did. I was just told to stay there." [Emphasis added].

MAYER, plaintiff's father and a Talmud teacher at defendant BOBOVER's yeshiva, was deposed [exhibit L of summary judgment motion]. He testified with respect to the barricading of the 48th Street and 15th Avenue corner, at p. 93, lines 9 - 23:

Q. What is actually used to barricade the street?

A. A gate, fence whatever they have.

Q. Can you describe what it is, what is actually used?

A. They have like a police barricade, like a metal barricade?

Q. It's a police iron barricade?

A. I think so, I think the last few years that's what it is.

Q. Are you aware of who actually put the barricade in place?

A. I think the school has kids that are patrols and a teacher

in charge of them, they stand there. [Emphasis added].

MAYER was asked at p. 96, lines 13 - 14, "[a]re you aware of any set policy regarding children playing on the street?" He answered, at p. 96, lines 18 - 19, that "[t]hey close the street and it becomes a playground because they don't have any other place where the kids should be playing and the kids know they can run free as they want [Emphasis added]." Then, the following colloquy took place, at p. 96, line 23 - p. 97, line 8: [*6]

Q. You indicated before that on occasion vehicles are let

down on the road even though it's blocked off?

A. Right.

Q. Are there instructions given to the children regarding

those types of vehicles?

A. There are usually teachers watching and because the

guy is usually beeping they know to go on the side and he goes

very slowly and that's what it is.

MAYER testified, at p. 101, that New York City police officers are not stationed at the 48th Street and 15th Avenue barricades when they are used by BOBOVER to block the street [Emphasis added]. He was asked the following and responded with respect to the 48th Street and 15th Avenue barriers, at p. 104, line 23 - p. 105, line 9:

Q. Are you aware the barriers were in place and removed

just before your son's accident or that they were never in put in

place prior to your son's accident?

A. My knowledge when I got my information was there

were barriers, but it just opened that very second that that car

drove in, in other words, when my son crossed the street it was

still closed, but when he right away went back towards the school

it was reopened already. [Emphasis added]

Plaintiff attached, as exhibit A to its affirmation in opposition to the summary judgment motion, a handwritten affirmation by Menachem Vogel, an eyewitness to the accident, who stated that:

On 3/16/05 at approximately 4:10 P.M. I was traveling in a

car on 48th St. When I saw a car make a left turn onto 48th St. from

15th ave.

The car went at a high rate of speed since the roadway was

empty due to the fact that the barricades that close off 48th St. bet

15 & 16 aves. were just removed, but I saw 1 boy that was in the

middle of the roadway & he was knocked down by this car, I did not

see any teachers or rabis present, I later learned that the boy was

Abraham Kessler [sic]. [Emphasis added]

Plaintiff, in his affirmation in opposition to the summary judgment motion, attached exhibit B, containing an affirmation of the assistant principal, Mr. Miller. He stated, in part, that BOBOVER "regularly closes the roadway in front of the building to thru traffic Monday to Thursday from 3:45 - 4:05. During that time frame children from the school play in the street. An adult stands at the corner at 15th avenue to redirect traffic. At the conclusion of play time he opens the street and allows the flow of traffic to resume unimpeded [sic] [Emphasis added]." Mr. Muller never stated whether the adult school employee stationed at the barricade is required to look down 48th Street towards16th Avenue to determine if the roadway is clear of pedestrians before removing the barricades. Further, Mr. Muller admitted that BOBOVER took it upon itself to barricade the street and redirect traffic.

Granting of plaintiff's motion to reargue[*7]

My complete handwritten August 15, 2008 short-form order, granting BOBOVER summary judgment, states in full:

After oral argument, defendant BOBOVER YESHIVA BNEI

ZION's motion for summary judgment & dismissal of plaintiff's

complaint & cross claims pursuant to CPLR 3212 is decided as

follows: Motion is granted in its entirety. There are no triable issues

of fact. At the time of the accident 48th Street was open to vehicular

traffic and infant Kessler had been dismissed from school and was

in the street which was outside "the orbit of authority" of the school

and the "school's custodial duty also ceases." (Pratt v Robinson, 39

NY2d 554, 560 [1976]). "A school is not the insurer of the safety

of its students." (Tarnaras v Farmingdale School Dist., 264 AD2d

391 [2d Dept 1999]).

"Generally a school cannot be held liable for injuries that

occur off school property and beyond the orbit of its authority."

(Vernali v Harrison Central School District, 51 AD3d 782 [2d

Dept 2008]).

The determination of whether to grant the instant motion, pursuant to CPLR Rule

2221 (d) (2), to reargue the prior summary judgment motion "is within the sound discretion of the court which decided the prior motion, provided the movant shows that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision." (Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]). It is also clear that the Court may not grant a motion to reargue if it "offers a party a new theory of law not previously advanced by it." (Frisenda v X Large Enterprises, Inc., 280 AD2d 514 [2d Dept 2001]). (See Foley v Roche, 68 AD2d 558, 567-568 [1d Dept 1979]). Plaintiff, in the instant matter, successfully demonstrated that I made my August 15, 2008 determination on its negligent supervision theory but did not address plaintiff's theory that defendant BOBOVER created a hazardous condition which caused and/or contributed to plaintiff's accident and injuries. Both ¶ 11 of plaintiff's verified complaint and ¶ 7 of plaintiff's bill of particulars, as previously noted, state that defendants caused the accident by "failing to properly secure the roadway from moving traffic, all of which the defendants had constructive and/or actual notice thereof." [Emphasis added].

Modification of summary judgment to defendant BOBOVER

In analyzing whether defendant BOBOVER should be granted summary judgment with respect to plaintiff's claim that BOBOVER negligently barricaded the corner of 48th Street and 15th Avenue at the time of the accident, the Court must determine if defendant BOBOVER, as the proponent of the summary judgment motion made a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York University Medical Center, 64 NY2d 851 [1985] Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d [*8]Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]).

CPLR 3212 (b) requires that for a court to grant summary judgment the court must

determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

It is clear that in viewing the evidence presented in defendant BOBOVER's summary judgment motion in the light most favorable to non-movant plaintiff ABRAHAM as to plaintiff's claim that BOBOVER negligently created a hazardous condition which caused and/or contributed to plaintiff's accident and injuries, defendant BOBOVER failed to tender sufficient evidence to eliminate any material issues of fact whether defendant BOBOVER's barricading of the subject street corner at 48th Street and 15th Avenue, prior to plaintiff's accident, was not negligent. There are triable issues of fact whether BOBOVER's closing of the subject street corner, in apparent violation of the New York City Administrative Code, created a dangerous and illegal condition in which defendant BOBOVER owed a duty to plaintiff ABRAHAM, by its constructive expansion of defendant yeshiva's schoolyard to include the 48th Street roadway from 15th to 16th Avenues.

As quoted earlier, defendant BOBOVER's Assistant Principal Mr. Muller testified at his deposition, p. 21, lines 21 - 24, that "[t]here's a barricade in the street, so any traffic coming through 15th Avenue will not be allowed down the street, period, because the kids play in the street," and at p. 22, lines 10 - 19, that if "somebody . . . needs to be on this particular street, then the monitor would open the barricade and would allow the car to come down the street after telling him to drive down slowly and carefully, because there are children playing there . . . Other than that, they don't allow any cars down the street because the children are there."

Defendant BOBOVER's sixth grade teacher, Mr. Fischer, who manned the barriers at the subject corner prior to the accident testified at his examination before trial, p. 12, that Mr. Muller had him close off the street corner each school day at 3:45 P.M. and, at p. 12, lines 24 - 25, he testified that Mr. Muller told him to "[j]ust stop the cars from coming down." Further, Mr. Fischer, at p. 13, testified that he didn't receive any written instructions, rules, regulations or procedures about closing the subject street corner, and stated, at p. 13, line 5, that he was told to barricade the corner "until the bell went off." He was asked at p. 15, lines 16 -17, "[w]ould you remove the barricade before the street was clear of children." Mr. Fischer, in his answer, never stated that he checked to see if the 48th Street roadway in front to the yeshiva was clear of children before removing the barriers from the street corner. He answered, at p. 15, lines 18 -20, "[o]nce the bell went off, I tell the kids to go up, that's when I move the barricade."

Also, both Mr. Muller and Mr. Fisher testified at their depositions that to their knowledge defendant BOBOVER did not have a permit to close 48th Street to vehicular traffic. In answering questions whether BOBOVER had a permit to close the street, Mr. Muller testified at p. 22, lines 23 -24, "I can't answer the question. I am sorry, I don't know," and Mr. Fischer testified at p. 28, lines 3 - 4, "I don't think they did. I'm not sure, but I don't think they did. I was [*9]just told to stay there." MAYER testified at his examination before trial, p. 93, lines 14 - 15, that the barricades used to block 48th Street

"were like a police barricade, like a metal barricade."

The three decisions I cited in my August 15, 2008 order, Pratt v Robinson, 39

NY2d 554 (1976); Tarnaras v Farmingdale School Dist., 264 AD2d 391 (2d Dept 1999), and Vernali v Harrison Central School District, 51 AD3d 782 (2d Dept 2008), for granting summary judgment to defendant BOBOVER on plaintiff's negligent supervision claim are all distinguishable with respect to plaintiff's claim that defendant BOBOVER negligently created a hazardous condition which caused and/or contributed to plaintiff's accident and injuries.

In Pratt a seven-year-old girl on her way home from school was struck by a truck while crossing a street several blocks from where she had been discharged from a school bus. In discussing a school's "orbit of authority" over a child, the Court invoked in loco parentis, holding at 560, that "[t]he duty owed by a school to its students . . . stems from the fact of its physical custody over them . . . When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is free to reassume control over the child's protection the school's custodial duty also ceases." Further, at 562, the Pratt Court instructed that "[w]e see no basis, wither in statutes or common law, for the creation of a school's duty to protect its students from hazards which may best them once they are on their way home and outside the control of the school."

Defendant BOBOVER, in the instant action, by periodically closing the subject corner to vehicular traffic extended its "orbit of authority" to the roadway of 48th Street between 15th and 16th Avenues. The 48th Street roadway from 15th to 16th Avenues, when the 15th Avenue corner was barricaded, constructively became a play area or schoolyard for BOBOVER's yeshiva. Assistant Principal Muller, in his deposition, at p. 74, lines 8 - 9, admitted "that's why we have 48th Street as our designated play area." Thus, if defendant BOBOVER expanded its "orbit of authority" by barricading the subject street corner, defendant BOBOVER could be negligent in the removal of the barriers at the subject corner and liable to plaintiff ABRAHAM for his accident caused by third party NEMTSOV. The Pratt Court held, at 560:

It is clear that a school district does have a special relationship to its

students, as that term is used in the negligence context, a relationship

analogous to that between carriers and their passengers or innkeepers

and their guests (Restatement Torts 2d § 315, subd [b]; § 320). This

special duty owed to students requires a school to act when a child,

while in its charge, is threatened by the negligence of a third party,

and it must make reasonable efforts to anticipate such threats (§ 320).

Mr. Fischer, the teacher at the 48th Street and 15th Avenue barriers prior to the accident, testified that he never looked down 48th Street to check if the roadway was clear of children prior to opening the barriers. Therefore, there is a genuine question of fact as to whether defendant BOBOVER negligently operated its barriers at the time of ABRAHAM's injury.

The 17-year-old plaintiff in Tarnaras left school and was assaulted inside her home by an estranged boyfriend, who had stalked her. The Tarnaras Court, at 392, held that the "school is not an insurer of the safety of its students." It ruled against plaintiff because of "the [*10]circumstances of this case" and held that "where a student is injured off school premises, there can generally be no actionable breach of a duty that extends only to the boundaries fo the school property." BOBOVER, in the instant case, constructively extended the "boundaries of the school property" and owes a duty to plaintiff ABRAHAM to protect him from the actions of third-party driver NEMTSOV if BOBOVER negligently operated its barricades at the subject street corner.

The 12-year-old plaintiff in Vernali alleged that he was injured while running across a street after being dismissed from school. When plaintiff was dismissed from school, he called his mother on his cell phone. His mother informed him that she was parked across the street from the school. Plaintiff chose, at 783, "to cross in the middle of the street at the direction of and under the supervision of his mother, rather than the supervised area located on school property designated for the pick-up and discharge of students." The Vernali Court found, at 783, in citing Pratt and Tarnaras, that defendant school district did not owe a duty to plaintiff "because he was not on school property and was under the control of his mother." The street outside the school in Vernali was not closed to vehicular traffic by school officials. Plaintiff, in Vernali, was outside the school's "orbit of authority," unlike plaintiff ABRAHAM in the instant case, when he was struck by a car in the street.

Lee v Board of Ed. of City of New York (263 AD 23 [1d Dept 1941]) deals with a 14-year-old plaintiff who was a student at James Monroe High School in the Bronx. As part of a required gym class he was playing touch football in the street adjacent to the school when he was injured by a passing car. While this case was decided prior to Pratt, the Court found that there were triable issues of fact whether the Board of Education was negligent when it compelled students to play in the street and owed a duty to protect plaintiff Lee from injury by automobiles in a "school street."

The Lee Court, at 26 -27, noted:

The street was not marked a play street, but police stanchions

were at both ends marked "School street, ten miles an hour." During

the game defendant Selkin, the physical training instructor, walked

up and down on the adjacent sidewalk watching and supervising

the play. He had a whistle which could be used to designate the end

of a playing period or to give warning of approaching vehicles . . .

As the street was marked a school street it was known to

the teacher and to the board of education, his employer, which has

assumed responsibility for his negligence, that traffic was not eliminated

from the highway . . .

Under all the facts and circumstances disclosed we think

plaintiffs established enough to raise an issue of fact for the jury as

to whether defendants were negligent in compelling the boy with [*11]

his classmates to conduct their physical training period in a public

highway through which automobiles and other vehicles were in the

normal course of events expected to pass.

Not only is there a triable issue of fact in the instant action whether defendant BOBOVER negligently exercised control of the subject street corner, creating a dangerous and/or hazardous condition by which plaintiff suffered injuries, but there is also a triable issue of fact whether defendant BOBOVER's closings each day of 48th Street from 15th to 16th Avenues to vehicular traffic are illegal. Title 19, Chapter 1, Subchapter 1 of the New York City Administrative Code is concerned with the Department of Transportation and "Construction, Maintenance, Repair and Obstruction and Closure of Streets." § 19-101 (a) of Subchapter 1 defines "commissioner" as the "commissioner of transportation." §19-107 of Subchapter 1, "Temporary closing of streets," states in relevant part:

a. (i) Except as otherwise provided by law, it shall be unlawful for

any person to close any street, or a portion thereof, within the

jurisdiction of the commissioner, to pedestrian or vehicular traffic

without a permit from the commissioner. (ii) The commissioner may temporarily close or may issue a permit

to temporarily close to pedestrian or vehicular traffic any street, or

a portion thereof, within his or her jurisdiction, when, in his or her

judgment, travel therein is deemed to be dangerous to life, in

consequences of there being carried on in such street activities such

as building operations, repairs to street pavements, sewer connections,

or blasting for the purpose of removing rock from abutting property,

or upon advice from the police commissioner, fire commissioner or

commissioner of the office of emergency management that such

closure will promote or protect safety or life, or when such closure may

be necessary for a public purpose. [Emphasis added]

The deposition testimony of BOBOVER's representatives, Mr. Muller and Mr. Fischer, raises a triable issue of fact whether defendant BOBOVER ever had a permit to temporarily close 48th Street on school days from 15th to 16th Avenues. Not only is it unlawful to close the street in front of BOBOVER's yeshiva on 48th Street without a permit from the Commissioner of the Department of Transportation, but BOBOVER failed to present any evidence there is any "advice from the police commissioner, fire commissioner or commissioner of the office of emergency management that such [street] closure will promote or protect safety or life" or that BOBOVER's closing of the street "may be necessary for a public purpose."

Also, BOBOVER's closings of 48th Street, in violation of §19-107, could subject its officers to significant criminal penalties, pursuant to § 19-149 of Subchapter 1. It is a violation [*12]to temporarily "close any street . . . to . . . vehicular traffic without a permit from the commissioner," and an unclassified misdemeanor if "any person knowingly violates" §19-107.

The §19-149 criminal penalties are as follows:

a. Any person who violates any of the provisions of this subchapter . . .

shall be guilty of a violation and upon conviction thereof shall be punishable by a fine of not more than five thousand dollars, or imprisonment for not more than fifteen days, or both such fine and imprisonment for each violation.

b. Any person who knowingly violates any of the provisions of this subchapter

. . . who knowingly causes, authorizes or permits such violation shall be guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine of not more than seven thousand five hundred dollars, or by imprisonment not exceeding sixty days, or both such fine and imprisonment for each violation. c. In the case of a continuing violation, each day's continuance shall be a separate and distinct offense.

Thus, theoretically BOBOVER's continuing violations of §19-107, several times each school day, could result, pursuant to § 19-149, in BOBOVER paying millions of dollars in fines and in the conviction and imprisonment of its leadership.

Additionally, if defendant BOBOVER needed barricades at the corner of 48th Street and 15th Avenue to protect its students at various times of the school day, it was required to apply to the Commissioner of the New York City Department of Transportation because of the environmental impact of the barriers at the subject street corner on the community and public. "The installation of [traffic] barriers has the potential to cause changes in traffic patterns, resulting in increased traffic, noise, air pollution, and stress on neighborhood facilities." (Chatham Green, Inc. v Bloomberg, 1 Misc 3d 434 [Sup Ct, New York County 2003]). Instead, it appears that defendant BOBOVER took it upon itself to usurp control of traffic on a public street, absent any authority to do so, and then failed to exercise its control over traffic on a public street, 48th Street between 15th and 16tthAvenues, in a non-negligent manner.

Defendant BOBOVER's illegal barriers created some type of traffic congestion just prior to plaintiff ABRAHAM's accident. Upon the removal of the barriers by defendant BOBOVER's agent, Mr. Fischer, the NEMTSOV vehicle proceeded down 48th Street and struck plaintiff. Therefore, a question of fact exists whether the negligent operation of the barricades at the subject street corner allowed the NEMTSOV vehicle to have traveled down 48th Street at the moment it struck pedestrian plaintiff ABRAHAM. Also, questions exist for the trier of fact whether defendant BOBOVER's agent properly removed the subject street corner barricades just prior to plaintiff ABRAHAM's accident and whether it was safe to do so after checking to see if pedestrians such as plaintiff ABRAHAM were in the 48th Street roadway in front of the yeshiva. Thus, plaintiff ABRAHAM has asserted viable claims, separate and distinct from the dismissed negligent supervision claims, against defendant BOBOVER.

Conclusion

Accordingly, it is [*13]

ORDERED that the motion of plaintiff ABRAHAM KESSLER, by his father and natural guardian MAYER KESSLER, pursuant to CPLR Rule 2221, for leave to reargue the granting of summary judgment to defendant BOBOVER YESHIVA BNEI ZION on August 15, 2008 is granted, in that this Court overlooked matters of fact and law in determining the summary judgment motion, pursuant to CPLR Rule 3212; and it is further

ORDERED that the August 15, 2008 granting of summary judgment to defendant BOBOVER YESHIVA BNEI ZION, pursuant to CPLR Rule 3212, is modified, in that: summary judgment continues with respect to the denial to plaintiff ABRAHAM KESSLER, by his father and natural guardian MAYER KESSLER, of any claims based upon negligent supervision by defendant BOBOVER YESHIVA BNEI ZION; and, summary judgment, pursuant to CPLR Rule 3212, is now denied to defendant BOBOVER YESHIVA BNEI ZION with respect to any claims of plaintiff ABRAHAM KESSLER, by his father and natural guardian MAYER KESSLER, that defendant BOBOVER YESHIVA BNEI ZION negligently created a hazardous condition which caused and/or contributed to the serious injuries suffered by plaintiff ABRAHAM KESSLER as a result of the March 16, 2005-accident on 48th Street, between 15th and 16th Avenues, Brooklyn, New York.

This constitutes the Decision and Order of the Court.

E NTER

HON. ARTHUR M. SCHACK

J. S. C.