Ocasio v Town of Greenburgh

Ocasio v Town of Greenburgh 2010 NY Slip Op 08863 [79 AD3d 426] December 2, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Angel Rubio Ocasio, an Infant, by His Guardian Matitza Rosado, et al., Respondents,
v
Town of Greenburgh et al., Defendants, and Greenburgh Eleven Union Free School District, Appellant.

—[*1] Cartafalsa Slattery Turpin & Lenoff, Tarrytown (Patricia A. Hughes of counsel), for appellant.

Krieger, Wilansky & Hupart, Bronx (Aaron N. Solomon of counsel), for respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about November 27, 2009, which denied without prejudice defendant School District's motion for summary judgment, and also denied a change of venue from Bronx to Westchester County, unanimously affirmed, without costs.

A central issue in this case is which defendant(s) owed a duty to the injured infant plaintiff, a passenger in a bus, the primary purpose of which was to transport students to and from Greenburgh Eleven Union Free School District. The District's affidavit offers only self-serving conclusions (see Ayotte v Gervasio, 81 NY2d 1062 [1993]), and summary disposition was premature before completion of discovery (see Palmer v Trachtenberg, 268 AD2d 304 [2000]). In light of the alleged assault's occurrence in the Bronx and the presence of the municipal codefendants in this action, denial of change of venue outside New York City was a sound exercise of discretion (CPLR 504 [3]; see Fucito v Board of Educ. of City of N.Y., 190 AD2d 605 [1993]). Concur—Tom, J.P., Friedman, DeGrasse, Freedman and Manzanet-Daniels, JJ.