Martinez v City of New York

[*1] Martinez v City of New York 2009 NY Slip Op 51564(U) [24 Misc 3d 1223(A)] Decided on July 21, 2009 Supreme Court, Kings County Miller, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2009
Supreme Court, Kings County

Luis Alfredo Martinez, by his Mother and Natural Guardian, MARIA HERNANDEZ and MARIA HERNANDEZ, Individually, Plaintiff,

against

The City of New York, THE DEPARTMENT OF SOCIAL SERVICES/ HUMAN RESOURCES ADMINISTRATION FOR CHILDRENS SERVICES, BUTTERFLY, INC. and KINGSWAY JEWIAH CENTER, Defendants.



13474/04



The plaintiffs are represented by Salenger, Sack, Schwartz & Kimmel, the defendants The City of New York, and The Department of Social Services/Human Resources Administration for Children Services are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Yolanda Guadagnoli, Esq., of counsel, the defendant Butterfly Inc. is represented by Walsh, Markus McDougal & DeBellis, LLP., by Matthew G. White, Esq., of counsel, the defendant Kingsway Jewish Center is represented by Patricia Zinke, Esq.

Robert J. Miller, J.

On March 3, 2003, Plaintiff Luis Alfredo Martinez, ("Martinez") an infant, was attending a city-registered daycare center operated by defendant Butterfly, Inc. ("Butterfly") at a facility owned by the defendant Kingsbay Jewish Center (KJC). While there, the plaintiffs testified that his teacher, a Butterfly employee, picked him up by the arm and then "threw" him down into a chair. Plaintiffs bring this action against The City of New York and The Department of Social Services/ Human Resources Administration for Children Services (collectively the City), Butterfly and KJC. The claim is that the injury arose due to the negligence of the City in referring the infant claimant to the Butterfly daycare center.

Martinez by his mother and guardian served a Notice of Claim on the City on June 2, 2003. The action was commenced by filing of a summons and complaint on April 28, 2004. On September 2, 2008, plaintiffs filed a Note of Issue. On September 22 , 2008, Butterfly filed a motion to vacate the Note of Issue and strike the action from the trial calendar due to outstanding discovery issues related to the plaintiffs. In that application, Butterfly did not assert that any further discovery was due from the City. This Court ordered the plaintiffs to provide the additional discovery requested, but did not vacate the Note of Issue.

The City now moves for summary judgment to dismiss the complaint arguing that the City owes no duty to Martinez who was allegedly injured by an employee of Butterfly, operator of a private day care center on premises owned by KJC. Plaintiffs do not oppose the motion which is opposed by Butterfly.

The primary basis of the claim against the City is that the Butterfly day care center is certified by

the City and that the infant Martinez's mother found out about the school "through welfare, from the welfare program."

Butterfly argues that this post Note of Issue motion for summary judgment in a case pending since April, 2004 is "premature". Butterfly further argues that the City has failed to comply with a prior May 8, 2007 order of this Court directing the production of certain documents. With respect to the alleged failure to comply with the May 8, 2007 order, as previously noted, Butterfly filed a motion to vacate the Note of Issue on the basis of incomplete discovery. The motion only referred to discovery needed from the plaintiffs. There was no claim of any failure by the City to provide any documents. Moreover, Butterfly took no action to [*2]compel compliance by the City with the May 8, 2007 Order. Thus, Butterfly's claim of the alleged importance of these documents is unconvincing. Its remedy was to move to vacate the Note of Issue on this basis which it did not do. (22 NYCRR 202.21)

With respect to the substantive opposition, Butterfly submits a five (5) page attorney's affirmation which as a matter of law is insufficient to raise triable issues of fact (Stahl v Stralberg, 287 AD2d 613 [2d Dept 2001]).

The City's motion was made prior to the Court of Appeals decision in McLean v The City of New York, 12 NY3d 194 [2009] which overruled the First Department's opinion in McLean v City of New York, 49 AD3d 393 [1st Dept 2008]).

In McLean, the plaintiff was injured while attending a city-registered daycare facility. The Court of Appeals stated "We have long followed the rule that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public". Ms. McLean asserted that a telephone conversation she had with a representative from the New York City Administration for Children's

Services established a special relationship. The Court in McLean applied the special relationship test established in Cuffy v. City of New York, 69 NY2d 255 (1987) which requires (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) the party's justifiable reliance on the municipality's affirmative undertaking. All four (4) prongs must be met to satisfy the test. Ms. McLean was unable to satisfy the first two prongs. The Court of Appeals found that no special relationship existed and ruled in favor of the defendant City stating that "The City's duty to Ms. McLean and Briana was neither more nor less than its duty to any other parent and child in need of day care."

Since the City's motion and Butterfly's opposition were submitted prior to the Court of Appeals McLean decision and since Butterfly relied on the First Department decision in McLean, the Court gave Butterfly an opportunity to distinguish McLean. It has failed to do so.

In attempting to satisfy the first and second elements of the Cuffy test, Butterfly relies on the alleged Martinez family application for child care and case file with the Department of Social Services both of which were requested during discovery but never provided by the City. Butterfly claims that the application and case file might show that a request for additional services was made, and if it did, then the first two (2) prongs of the Cuffy test would be met. This argument is pure speculation and even if it could be established that the application requested special services, it would fail to meet the Cuffy test. Butterfly offers no evidence to raise triable issues that the City assumed an affirmative duty on behalf of Martinez through promise or other action. [*3]

Alternatively, Butterfly claims a lack of detail "as there was no area on its [plaintiff] application submitted for child care that could be used to list any special needs and services that a child may have or need". This alleged lack of detail Butterfly argues, raises in some unspecified way, triable issues of fact as to a special relationship between Martinez and the City. This argument contradicts the first speculative argument and is unsupported by evidence or case law.

As such, the opposition to the summary judgment motion fails to raise any triable issues of fact that a special relationship existed between the City and Martinez.

Accordingly, the City's motion to dismiss the complaint and all cross-claims asserted against it is granted. The Clerk of the Court is directed to enter judgement dismissing the complaint and all cross- claims against the City defendants only. The case is transferred to a non-City part.

The foregoing constitutes the decision and Order of the Court.

_______________________Robert J. Miller

J.S.C.

July 21, 2009