Caleca v City of New York

[*1] Caleca v City of New York 2008 NY Slip Op 50227(U) [18 Misc 3d 1128(A)] Decided on January 31, 2008 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2008
Supreme Court, Kings County

Lucille Caleca, Plaintiff,

against

The City of New York, et ano., Defendants.



36009/05

Sylvia O. Hinds-Radix, J.

The City cross-moves for an order, pursuant to CPLR 2221, granting renewal of this Court's Order of January 31, 2007, which denied the City's motion for summary judgment and upon renewal, dismissing the plaintiff's complaint against the City herein pursuant to CPLR 3211 (a) (7) or, in the alternative, pursuant to CPLR 3212, granting the City summary judgment on all claims asserted against the City.

In this personal injury action, plaintiff, Lucille Caleca alleged that on June 23, 2005, she was injured while standing outside Grady High School in Brooklyn. Thereafter, she commenced this personal injury action against the City and the Board of Education in which it is alleged, among other things, that the City owned the subject premises, that it was maintained and operated by the Board of Education and that defendants "negligently and carelessly caused, allowed and permitted their/its said school and activities therein to become and remain dangerous."

In their motion, defendants point out that plaintiff was injured during the course of her employment as a school aide when she was struck in the head by a book. Since plaintiff was employed by the Board of Education, defendants contend that Workers' Compensation is her exclusive remedy insofar as the Board of Education is concerned [*2]and, therefore, the complaint against it should be dismissed. With respect to the City, defendants argue that it was an out-of-possession landowner which did not maintain or control the subject premises and, consequently, the complaint against it must likewise be

dismissed.

In opposition to the motion, plaintiff contends that defendants' argument that the City is not a proper party to this action has been preempted by the amendment of the Education Law § 2590 in 2002. According to plaintiff, the 2002 legislation "restructured the relationship between the City of New York and the New York City Board of Education in that the City took control of the Board and stripped it of its prior independent legal status." Plaintiff challenges defendants' contention that Workers' Compensation is her exclusive remedy because "school aides" are not mentioned in the Workers' Compensation Law, with the exception of certain categories not applicable here. Plaintiff also questions whether the Workers' Compensation Law is applicable since plaintiff may be considered in the direct employ of the City, given the amendments to the Education Law.

By decision and order dated January 31, 2007, this Court granted the Board of Education's motion for summary judgment finding that worker's compensation was the plaintiff's exclusive remedy. This Court, however, denied the City's motion for summary judgment and cited to its own decision in Nasser v Nakhbo, 13 Misc 3d 1225 (A) [Kings County, 2007] andto the decision in Perez v City of New York, 9 Misc 3d 934 [Bronx County, 2005]) in its finding that the 2002 amendments to the Education Law, restructured the governance of the school district of the City of New York and transferred power over the City schools from the Board of Education to the Mayor. This court further held that in light of the transfer of power and responsibility from the Board of Education to the Mayor, the City may not now shield itself from liability by claiming that the Board of Education is the responsible party.

Thereafter, on September 20, 2007, in response to plaintiff's motion for an order striking the City's answer for its willful failure to comply with court-ordered examination before trial, the City cross-moved for an order to renew this Court's January 31, 2007 decision and order denying the City's motion for summary judgment.

In support of the underlying cross-motion for renewal, the City contends that its motion is based upon new case law decided subsequent to this Court's January 31, 2007 decision and order denying its summary judgment motion. Specifically, the City relies upon the Appellate Division First Department's determination in Perez v. City of New York, 41 AD3d 378 [1st Dept. 2007], which reversed the Bronx County Trial Court's holding in Perez, 9 Misc, 3d 934, that the 2002 amendments to the Education Law subjected the City to liability for the Board's alleged torts. In reversing the Trial Court in Perez, the Appellate Division First Department, on June 28, 2007, held that "while the 2002 amendments to the Education Law (L 2002, ch 91) providing for greater Mayoral control significantly limited the power of the Board of Education . . . , the City and the [*3]Board of Education remain separate legal entities" (Perez, 41 AD3d 378 [1st Dept. 2007]. The Appellate Division First Department further noted that "the Legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts" (Id.). In further support of its motion for renewal, the City contends that "Perez is the only Appellate Division case that has addressed the effect (or lack thereof) of the 2002 Education Law amendments on the relationship between the City of New York and the Board of Education." As such, the City asserts that under the doctrine of stare decisis, Perez is controlling on all the trial courts of this state.

In opposition to the underlying cross motion for renewal, plaintiff argues that the Appellate Division First Department's decision in Perez does not provide a basis for renewal and there has been "no case law supporting the proposition that a motion to renew must be granted based upon subsequent Appellate Division interpretation in another department." Additionally, plaintiff points out that this Court's decision of January 31, 2007 was rendered before the Appellate Division First Department's decision in Perez. Plaintiff further argues that the Appellate Division First Department's decision in Perez has no stare decisis effect and is not binding on this Court. Plaintiff asserts that the City has failed to demonstrate that there has been a change of law in the Second Department that would affect the Court's decision of January 31, 2007, and, as such, the City's motion for renewal should be denied.

CPLR 2221 (e) provides that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (see Orange and Rockland Utilities, Inc. v. Assessor of Town of Haverstraw, 304 AD2d 668 [2003]; Glicksman v Board of education/Central Sch. Bd., 278 AD2d 364, 366 [2000]). Based upon a review of the record and in light of these new statements of the law announced by the Appellate Division, First Department in Perez, that the 2002 amendments to the education law, although it provided for greater mayoral control and significantly limited the power of the Board of Education, did not change the law pertaining to the relationship between the Board of Education and the City, the Court grants the City's motion for renewal. Upon renewal, so much of the Court's prior decision and order of January 31, 2007 denying the City's motion for summary judgment dismissing the plaintiff's complaint, is hereby vacated. Contrary to plaintiff's assertion, the doctrine of stare decisis requires trial court in this Department to follow precedents of another court until such time as the Court of Appeals or the Second Department pronounces a contrary rule (see, Mountain View Coach Lines v Storms, 102 AD2d 663). This Court notes that since neither the Court of Appeals nor the Appellate Division Second Department have spoken on this specific issue regarding the effect of the 2002 Education Law amendments on the relationship between the City of New York and the Board of Education, the doctrine of stare decisis compels this Court to follow the [*4]determination of the Appellate Division First Department in Perez.

Accordingly, upon reconsideration, the City's cross motion for summary judgment dismissing the plaintiff's complaint as against the City is granted in its entirety and all claims hereby are dismissed as against the City.

Based on the foregoing, plaintiff's motion for an order striking the City's answer and extending plaintiff's time to file her note of issue is thus moot and the Court will not decide the motion that seeks that relief.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.