Tsai v Zong-Ling Duh

[*1] Tsai v Zong-Ling Duh 2009 NY Slip Op 51782(U) [24 Misc 3d 1237(A)] Decided on August 6, 2009 Supreme Court, Queens County Flug, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2009
Supreme Court, Queens County

Andrew Tsai

against

Zong-Ling Duh, et al.



1743 2007



Plaintiff Attorney:

Goidel & Siegel, LLP

122 East 42 Street

Suite 4500

New York, NY 10168

Defendants Matco Service Corp. and Michael P. Doyle Attorney:

Lewis John, Avallone & Aviles, PC

425 Broad Hollow Road

Suite 400

New York, NY 11747

Defendant Zong-Ling Duh attorney:

Muscarella & Diraimo, LLP

61 New Hyde Park Road

Garden City, New York 11530

Defendant City of New York attorney:

Michael Cardozo

Corporation Counsel

100 Church Street, Room 4-213

New York, NY 10007

by: Jacob Levin

Phyllis Orlikoff Flug, J.

This action arises out of an accident which occurred on February 27, 2006 near the intersection of 58th Avenue and Utopia Parkway in Queens when pedestrian plaintiff Andrew Tsai, a student on a lunch break from Francis Lewis High School, was struck by a vehicle owned by Matco and operated by Doyle which was propelled into plaintiff by a vehicle operated by defendant Zong-Ling Duh (Duh).

The deposition evidence demonstrates that, whether Doyle was stopped at a red light at the intersection or had just started to move into the intersection when the light turned green, no negligence can be attributed to Doyle in the occurrence of this accident. It is undisputed that Doyle had only seconds to react when the out of control Duh vehicle hurtled towards him head on, colliding with the Matco/Doyle vehicle and propelling it into plaintiff.

A driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic. Such an event constitutes a classic emergency situation, thus implicating the "emergency doctrine" (see Levine v Li-Heng Chang, 56 AD3d 530 [2008]; Koenig v Lee, 53 AD3d 567 [2008]; Gajjar v Shah, 31 AD3d 525 [2006]; Eichenwald v Chaudhry, 17 AD3d 403 [2005]; Lyons v Rumpler, 254 AD2d 261 [1998]; Williams v Econ, 221 AD2d 429 [1995]; Greifer v Schneider, 215 AD2d 354 [1995]; Gaeta v Morgan, 178 AD2d 732 [1991]; Moller v Lieber, 156 AD2d 434 [1989]). Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context (Vitale v Levine, 44 AD3d 935 [2007]; see Caristo v Sanzone, 96 NY2d 172 [2001]; Bello v Transit Auth. of NY City, 12 AD3d 58 [2004]).

Herein, Doyle's reaction-to brace himself and apply his brakes-was reasonable as a matter of law under the circumstances (see Caban v Vega, 226 AD2d 109 [1996]). Thus, defendants Matco and Doyle have established their prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that Doyle was faced with a sudden and unforeseen occurrence not of his own making leaving him with only a second or two to react and virtually no opportunity to avoid a collision (see Lee v Ratz, 19 AD3d 552 [2005]; Boos v Bedrock Materials, Inc., 16 AD3d 447 [2005]; Gonzalez v City of New York, 295 AD2d 122 [2002]; Caban v Vega, 226 AD2d 109 [1996]; Koch v Levenson, 225 AD2d 592 [1996]; Williams v Econ, 221 AD2d 429 [1995]). Under any reasonable view of the evidence, the emergency doctrine applies. The burden now shifts to plaintiff to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In opposition to Matco and Doyle's prima facie showing of entitlement to judgment as a matter of law, plaintiff submits an attorney's affirmation and an affidavit of an expert in accident reconstruction whose opinion is based upon photographs of the scene and his review of depositions. The conclusory assertions in the affidavit of plaintiff's accident reconstruction expert are insufficient to raise an issue of fact (see Gonzalez v 98 Mag Leasing Corp, [*2]95 NY2d 124 [2000]; Shatzkin v Village of Croton-on-Hudson, 51 AD3d 903 [2008]; Herod v Mele, 62 AD3d 1269 [2009]; Veccia v Clearmeadow Pistol Club, 300 AD2d 472 [2002]; Speirs v Dick's Clothing & Sporting Goods, 268 AD2d 581 [2000]; Liccione v Gearing, 252 AD2d 956 [1998], lv denied 92 NY2d 818 [1999]). Such speculation, grounded in theory rather than fact, is insufficient to defeat a motion for summary judgment (see Zuckerman v City of New York, supra; Levitt v County of Suffolk, 145 AD2d 414 [1988]; Baly v Chrysler Credit Corp., 94 AD2d 781 [1983]).

Turning to the City's summary judgment motion, plaintiff's causes of action asserted against the City are based on negligent supervision. A school is not an insurer of the safety of its students (Ohman v Board of Educ., 300 NY 306 [1949]). It is well settled that a school's duty of care is coextensive with, and concomitant to, its physical custody and control over a child (see Chainani v Board of Educ., 87 NY2d 370 [1995]; Mirand v City of New York, 84 NY2d 44 [1994]; Pratt v Robinson, 39 NY2d 554 [1976]). As a result, where a student is injured off school premises, there can generally be no actionable breach of a duty that extends only to the boundaries of school property (see Chalen v Glen Cove School Dist., 29 AD3d 508 [2006]; Tarnaras v Farmingdale Sch. Dist., 264 AD2d 391 [1999]; Harker v Rochester City School Dist., 241 AD2d 937 [1997]; Reyes v City of New York, 238 AD2d 563 [1997]; Wenger v Goodell, 220 AD2d 937 [1995]).

In opposition to the City's motion, plaintiff asserts a new theory of liability alleging the existence of a special relationship between plaintiff and the City. According to this theory, since there is a closed lunch policy at plaintiff's high school and the City provided security at the high school, the City had a special duty to protect the plaintiff by preventing him from leaving the high school during lunch. This theory is not contained in the plaintiff's notice of claim or complaint. Causes of action for which a notice of claim is required which are not listed in the plaintiff's original notice of claim may not be interposed (Hendler v City of New York, 2 AD3d 685 [2003]; Mazzilli v New York, 154 AD2d 355 [1989]; DeMorcy v City of New York, 137 AD2d 650 [1988]).

Furthermore, plaintiff has failed to raise triable issues of fact regarding whether the City, in providing security at the high school, had assumed an affirmative duty to act, giving rise to a special duty (see Vitale v New York, 60 NY2d 861 [1983]; Pascucci v Board of Educ. of City of NY, 305 AD2d 103 [2003]). The elements of a special relationship are an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; knowledge on the part of the agents of the municipality that inaction could lead to harm; direct contact between those agents and the injured party; and the injured party's justifiable reliance on the municipality's affirmative undertaking (see Mastroianni v County of Suffolk, 91 NY2d 198 [1997]; Cuffy v City of New York, 69 NY2d 255 [1987]; Moreno v City of New York, 27 AD3d 536 [2006]; Pascucci v Board of Educ., supra). The mere provision of security at a high school does not give rise to a special duty of protection (see Jerideau v Huntington Union Free School Dist., 21 AD3d 992 [2005]; Bain v New York City Bd. of Educ., 268 AD2d 451 [2000]; Dickerson v City of New York, 258 AD2d 433 [1999]). Herein, the record [*3]does not demonstrate that any of the elements required for the undertaking of a special relationship existed (see France v New York City Bd. of Educ., 40 AD3d 268 [2007]; Moreno v City of New York, supra; Bowers v City of New York, 294 AD2d 526 [2002]; DiGravina v City of New York, 278 AD2d 359 [2000]; Meyers v Board of Educ., 260 AD2d 557 [1999]).

In any event, even assuming that a "special duty" existed, the breach of that duty was not a proximate cause of plaintiff's injuries. Under the circumstances of this case, the vehicular collision constituted a superseding intervening act which severed any link between the City's alleged negligence and plaintiff's injuries (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]; Jennifer R. v City of Syracuse, 43 AD3d 1326 [2007]; Maldonado v Tuckahoe Union Free School Dist., 30 AD2d 567 [2006]).

Accordingly, the summary judgment motions of defendants Matco and Doyle and of defendant City are both hereby granted.

Dated: August 6, 2009

J.S.C.