Santiago v City of New York

[*1] Santiago v City of New York 2010 NY Slip Op 50005(U) [26 Misc 3d 1206(A)] Decided on January 5, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2010
Supreme Court, Kings County

Justin M. Santiago, by his Parents and Natural Guardian Elizabeth Santiago, Plaintiff,

against

The City of New York, the Department of Education and Laidlaw USA, Defendants.



1514/07



The plaintiffs are represented by Salzman & Salzman, LLP., by Robert M. Salzman, Esq., of counsel, the defendants the City of New York and the New York Department of Education are represented by Michael A. Cardozo, Esq., by Jonathan David Moran, Esq., of counsel, the defendant Laidlaw USA, Inc., is represented by Billig Law, P.C., by Suzanne M. Billig, Esq., of counsel.

Robert J. Miller, J.

Plaintiff Justin Santiago (Santiago) a six year old at the time of the alleged injury is a disabled child who is non-verbal, non-mobile, legally blind and confined to a wheel chair. On June 9, 2006, Santiago was taken to school by an ambulance service and then placed in the care of the New York City Department of Education when he was allegedly injured by the negligence of the school or the ambulance service.

Santiago by his parent and natural guardian Elizabeth Santiago (Elizabeth) commenced this action by the filing of a summons and verified complaint on January 12, 2007 as against the City of New York and the New York City Department of Education (City) alleging negligent supervision of the child. A supplemental summons and verified complaint was filed against Laidlaw USA (Laidlaw) which asserted that Laidlaw was the company that transported Santiago to school on the date of the incident. Issue was joined on April 7, 2008. A new action under index number 13173/09 was commenced against Park Ambulance Service Inc., d/b/a American Medical Response (Park) as they were identified as having transported Santiago on the date of incident.[FN1] The action against Laidlaw was discontinued without costs in a so ordered stipulation by this Court on June 12, 2009.

Plaintiffs move to strike the note of issue dated June 9, 2009 and for 22 NYCRR § 130 sanctions and attorneys fees against Laidlaw. Plaintiffs assert that Laidlaw's filing of a note of issue on June 9, 2009 a week after requesting a stipulation of discontinuance combined with Laidlaw's refusal to withdraw the note of issue in open court on June 12, 2009 at the time [*2]Laidlaw's motion for summary judgment was being withdrawn is frivolous conduct and is subject to sanctions. Plaintiffs further assert that Laidlaw falsely stated in its certificate of readiness that discovery was complete and that the case was ready for trial while knowing that plaintiffs had commenced a new and separate action against Park. Laidlaw cross-moves for costs and sanctions as against plaintiffs asserting that Laidlaw properly filed the note of issue as all discovery was complete and that sanctions should be granted because Laidlaw was never a proper party to the action and that plaintiffs never had a good faith basis to sue Laidlaw.

The City moves for summary judgment pursuant to CPLR § 3212 asserting that plaintiffs can not establish that the City negligently supervised Santiago or breached any other duty to Santiago. The City relies on the General Municipal Law (GML) §50-h testimony of Elizabeth Santiago and the testimony of Santiago's classroom teacher Ms. Springer-Harris. Plaintiffs oppose the motion asserting that the motion is premature as there has been no discovery in the new case against the defendant Park and that such discovery may yield material relevant evidence against the City since plaintiffs' claim of negligence against the City is based on circumstantial evidence.

The Court will first address the City's summary judgment motion. To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor (GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 [1985] ). Issue finding rather than issue determination is its function (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957] ). The evidence will be construed in the light most favorable to the one moved against (Weiss v. Garfield, 21 AD2d 156 [3rd Dept 1964] ).The City asserts that Elizabeth Santiago's GML § 50-h testimony as well as the deposition testimony of the special education teacher Ms. Springer-Harris establish that there was no breach of any duty to Santiago and no evidence to show that the City proximately caused the injury.

The undisputed facts are that Santiago was transported (as he was everyday) to and from school by an ambulance on the date of incident . He was picked up by two male attendants employed by the ambulance company in his apartment and carried on a stretcher from the apartment and taken on that stretcher in the ambulance to school. Santiago was assigned to a class room with five school staff members and one of those staff members, Ms. Vasques, was assigned as a "one on one" paraprofessional aide for Santiago. Elizabeth stated that her child was "fine" before he was transported to school. After arriving at school in the morning, the special education teacher heard Santiago crying while sitting in his wheel chair. Ms. Springer-Harris immediately instructed the staff to take Santiago to the nurses office. Elizabeth was contacted and was told Santiago was crying all morning and that he was holding his arm. After arriving home by ambulance, the child was sleeping. When Santiago woke up, he was in apparent pain and his mother noticed that the child's right arm "looked swollen" and that he was "holding his arm close to his body" and "whimpering" and that he had a bruise on his elbow. Ms. Santiago took her son to Woodhull Hospital where x-rays were taken and there was no finding of a fracture. Two days later on June 12, 2006, Elizabeth took Santiago to North Shore LIJ Schneider's Children's Hospital where additional x-rays were taken and the child was diagnosed with a non-displaced fracture of the elbow.

Schools are under a duty to adequately supervise the students in their care and they will [*3]be held liable for injuries proximately related to the absence of adequate supervision. (Lawes v Board of Educ., 16 NY2d 302 [1965].) The standard of care does not make schools the insurers of a child's safety because they cannot supervise and control all movements and activities of students. (Lawes v Board of Educ., 16 NY2d 302 [1965], Mirand v City of New York, 84 NY2d 44 [1994], Ohman v Board of Educ., 300 NY 306 [1949]).

The Court of Appeals in Mirand v City of New York, 84 NY2d 44 [1994] held that "a school will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision". Courts can properly consider the question of proximate cause as it relates to the act that led to the plaintiff's injury. (Derdiarian v Felix Contracting Corp., 51 NY2d 308 [1980].)

The City asserts that there in nothing in the record to establish that there was any inadequate supervision of Santiago as to be the proximate cause of his injury and that plaintiffs cannot identify the cause of the injury. At the 50-h hearing, Elizabeth testified that:

Q. Did you receive any information from any

source other than your attorneys about whether

your son came out of his wheelchair on the date in question.

A. No

Q. At this point in time, do you have any information about the

mechanism of injury to his right arm, in other words how this

fracture occurred?

A. No, I have no idea how it could have happened.

Q. Do you know if he fell out of the wheelchair, or if he banged his

arm on a doorway or some other object?

A. No, I have no idea how it happened.

The City further asserts that an inference must be more that mere speculation, guess or surmise (Rossetti v Board of Education of Schalmont Central School district, 277 AD2d 668 [3d Dept 200]) and that even if the plaintiffs could establish that the City caused the injury, plaintiffs cannot establish how the City's negligence actually caused Santiago's injury. Without any witnesses to the accident and Santiago's inability to give any testimony, the allegations in the complaint alone cannot establish how the incident occurred. The City relies on Abdullah v City of New York, 203 AD2d 397 [2d Dept 1994] where the Appellate Division found that the plaintiff could not establish how the incident actually occurred.

The Court finds that the City has met its initial burden that it is entitled to summary judgment. (Zuckerman v City of New York, 49 NY2nd 557 [1980], Winegrad v New York University Medical Center, 64 NY 2nd 851 [1985].) There is no evidence that any action by the City caused the injury and there is substantial evidence that the City provided adequate supervision and care of Santiago.

The burden now shifts to plaintiffs to raise triable issues of fact (Alverez v. Prospect Hospital, 68 NY2d 320 [1986]). The plaintiffs in response rely on the case of Schneider v Kings Highway Hospital Center , 67 NY2d 743 [1986] where circumstantial evidence was sufficient to establish that a nursing home patient fell from her bed as a result of a failure to raise bed rails. Plaintiffs also rely on the case of Rodriquez v State, 78 Misc. 174 [Ct of Claims 1974] where [*4]there was a five year old child who was profoundly retarded and the Court of Claims held that the degree of care owed to patients "should be measured by the physical and mental ailment of the patient and by his capacity to provide for his own safety". Plaintiffs assert that this case is based on more than mere speculation because Santiago was entrusted to the care of the City or the ambulance company.

Plaintiffs' reliance on Rodriquez is misplaced as the case was overruled by the Appellate Division, Third Department in Rodriquez v State, 50 AD2d 985 [3d Dept 1974] which found that the plaintiff could only show that the "injuries may have arisen from any one of a variety of causes, including perhaps, some which were negligent". Furthermore, the Court of Appeals in Corcoran v Banner Supermarket, 19 NY2d 425 [1967] held that it "is never enough for the plaintiff to prove merely that he has been injured by the negligence of someone unidentified." Here, on the facts as presented, plaintiffs have failed to establish that the City had exclusive control over Santiago and that the injuries only could have arisen from their negligence. In Dermatossian v. New York City Transit Authority 67 NY2d 219 [1986] the Court held:

"The exclusive control requirement, as generally understood,

is that the evidence must afford a rational basis for concluding

that the cause of the accident was probably such that the defendant

would be responsible for any negligence connected with it. The

purpose is simply to eliminate within reason all explanations for

the injury other than the defendant's negligence"

Plaintiffs' reliance on Schneider v Kings Highway Hospital Center , 67 NY2d 743 [1986] is also misplaced in that circumstantial evidence could be utilized in Schneider because the nursing home had exclusive control of the plaintiff, unlike this case, where the City did not.

Here, it is undisputed that Santiago was in the care of his mother on the morning of the injury, then in the care of the ambulance company which transported him to the school, he was then taken by the ambulance company back to home and the care of his mother. His mother then took him to Woodhull Hospital where he was in the care of Woodhull Hospital (which found no fracture) and then transferred back to the care of his mother. Lastly, he was placed in the care of North Shore Hospital where a fracture was diagnosed.

Plaintiffs further assert that the City's motion is premature because new discovery is needed in the case against Park which might raise triable issues of fact as against the City. However, it is mere speculation that the new case against Park (which has a pending default motion against Park) may raise triable issues. Plaintiffs commenced this action in January 2007 and has had adequate time to take discovery with respect to any claims against the City. Plaintiffs have failed to raise triable issues of fact so as to defeat the City's motion

The Court next looks to the plaintiffs' motion for sanctions and to strike the note of issue and the defendant Laidlaw's cross-motion for sanctions. Plaintiffs' motion to strike the Note of Issue is denied as moot. Plaintiffs assert that the filing of the Note of Issue on June 9, 2009 was done by Laidlaw one week after requesting execution by plaintiffs of a stipulation of discontinuance. However, the stipulation was not executed by all parties until after the filing of the note of issue. In addition, plaintiffs' sanctions

motion argues that Laidlaw allegedly litigated this case for over a year when they knew that "Laidlaw had no active business operations and was merely a holding company with no connections to the

allegations". The Court finds that neither the defendant Laidlaw nor the plaintiffs have demonstrated that either side has engaged in frivolous or harassing conduct.

Accordingly, the City's motion for summary judgment is granted. Plaintiffs' motion to strike the Note of Issue is denied as moot and the motion by the plaintiffs and the cross motion by defendant Laidlaw for sanctions are both denied.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

January 5, 2010 Footnotes

Footnote 1: Plaintiff has a pending motion against the defendant Park for a default judgment.