Guerrieri v New York City Dept./Bd. of Educ.

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Guerrieri v New York City Dept./Bd. of Educ. 2013 NY Slip Op 32097(U) August 16, 2013 Sup Ct, Richmond County Docket Number: 13652/03 Judge: Thomas Aliotta Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X THOMAS GUERRIERI and SHERRY GUERRIERI, Part C-2 Plaintiffs, Present: -against- HON. THOMAS P. ALIOTTA DECISION AND ORDER NEW YORK CITY DEPARTMENT/BOARD OF EDUCATION, ASSOCIATION FOR METROAREA AUTISTIC CHILDREN, INC. and ASSOCIATION IN MANHATTAN FOR AUTISTIC CHILDREN, INC. Index No. 13652/03 Motion No. 892-010 Defendants. X NEW YORK CITY DEPARTMENT/BOARD OF EDUCATION, Third-Party Plaintiff, -against- MINIBUS SERVICE CORP., Third-Party Defendant. _______________________________________________X The following papers numbered 1 and 2 were fully submitted the 19th day of June, 2013. Papers Numbered Notice of Motion by Defendant New York City Department/Board of Education to Dismiss the Complaint and for Summary Judgment, with Supporting Papers (dated March 11, 2013)..................................................................................................... 1 Plaintiffs Affirmation in Opposition (dated June 12, 2013)........................................................................................................ 2 . [* 2] GUERRIERI v NEW YORK DEPARTMENT/BOARD OF EDUCATION Upon the foregoing papers, the motion of defendant New York City Department /Board of Education (hereinafter, DOE ) to dismiss the complaint pursuant to CPLR 3211(a)(7), or in the alternative, for summary judgment pursuant to CPLR 3212 is granted in accordance herewith. This personal injury action arises out of an incident that occurred on October 9, 2002 wherein plaintiff Thomas Guerrieri (hereinafter, plaintiff ), while operating a school bus owned by his employer, third-party defendant Minibus Service Corp., was allegedly injured by an autistic student whom plaintiff was transporting to an educational facility for developmentally disabled persons, codefendant Association in Manhattan for Autistic Children, Inc. (hereinafter, AMAC ). In his notice of claim, Mr. Guerrieri alleges that DOE failed to provide adequate supervision and control over the special education student, Allan C., who was in need of same to ensure the safety of the minibus employees and the other passengers. It is further asserted (in both the notice of claim and the complaint) that, although DOE had prior notice of this student s dangerous, violent and uncontrollable nature, it failed to provide the necessary paraprofessional to properly control and supervise the student during his transportation to and from co-defendant s facility. In moving to dismiss the complaint pursuant to CPLR 3211(a)(7), or in the alternative, for summary judgment, DOE maintains that plaintiffs have failed to plead and/or demonstrate the existence of a special duty, the absence of which precludes the imposition of liability upon the municipal defendant as a matter of law. In support, movant points out that the notice of claim and the complaint are devoid of the requisite factual allegations of a special relationship between the 2 [* 3] GUERRIERI v NEW YORK DEPARTMENT/BOARD OF EDUCATION municipal entity and the injured plaintiff arising from, e.g., direct contact with DOE personnel during which promises or assurances were made to plaintiff upon which he justifiably relied. In opposition, plaintiff maintains that prior to October 9, 2002, he and the matron assigned to his bus had filed 12 Student Misbehavior Reports with their employer which were allegedly forwarded to DOE s Office of Pupil Transportation by co-defendant AMAC . These reports purportedly described separate incidents wherein Allan C. behaved in a violent and uncontrollable manner on the bus. According to plaintiff, absolutely nothing was done to address this safety issue, i.e., DOE neither provided a special transportation paraprofessional nor suspended the student from bus transportation. In addition, plaintiff points to certain Individualized Education Programs ( IEPs ) prepared for Allan C. prior to the incident wherein DOE s Committee on Special Education made specific recommendation[s] that Allan C. be assigned a special transportation paraprofessional. According to plaintiff s expert, a retired District 75 special education school teacher, DOE was required to implement the recommendations of this Committee. Finally, plaintiff claims that upon informing his employer on multiple occasions that a special transportation paraprofessional was desperately needed for Allan C., he was assured by his employer that one would be supplied soon . It is well settled that in order [t]o invoke the special duty exception to the rule that a public entity is not liable for the negligent performance of its governmental functions, a plaintiff must establish that, through affirmative acts, the municipality has lulled him or her into foregoing other available avenues of protection or that it has voluntarily assumed a duty separate from that which 3 [* 4] GUERRIERI v NEW YORK DEPARTMENT/BOARD OF EDUCATION is owed to the public generally (Goga v Binghamton City School Dist., 302 AD2d 650, 651, citing Perry v Board of Educ., Gouverneur Cent. School Dist., 189 AD2d 939, 940 [internal quotation marks omitted]). Pertinently, it is well settled that a school s duty to supervise and police its students is a governmental function (id.). In the instant matter, plaintiff maintains that he was injured as a result of DOE s alleged negligence in failing to supply a transportation paraprofessional to supervise and control the special needs student in question. Inasmuch as DOE is a governmental entity whose purported negligence arose in the exercise of a governmental function, it was incumbent upon plaintiff to demonstrate a special relationship with [defendant], which create[d] a specific duty to protect [him], and [that plaintiff] justifiably relied upon the performance of that duty to his detriment (Perry v Board of Educ., Gouverneur Cent. School Distr., 189 AD2d at 940; see Valdez v City of New York, 18 NY3d 69, 75; Goga v Binghamton City School Dist., 302 AD2d at 651; Reynolds v Central Islip Union Free School Dist., 300 AD2d 292, 293). In the opinion of this Court, plaintiff has failed to sustain his burden. Here, DOE established, prima facie, that it did not assume a special duty toward plaintiff, who failed to rebut that showing and raise a triable issue of fact as to the existence of a special relationship between himself and the municipal defendant. In this regard, there is no evidence in the record before the Court that DOE s agents made any direct assurances to plaintiff, much less an assurance definite enough to generate justifiable reliance (Dinardo v City of New York, 13 NY3d 872,874; see Cuffy v City of New York, 69 NY2d 255, 260; Goga v Binghamton City 4 [* 5] GUERRIERI v NEW YORK DEPARTMENT/BOARD OF EDUCATION School Dist., 302 AD2d at 651; Reynolds v Central Islip Union Free School Dist., 300 AD2d at 293). In any event, plaintiff s failure to allege or provide facts sufficient to establish the necessary elements of a special relationship theory in his notice of claim or complaint is fatal to the maintenance of this action (see Blackstock v Board of Educ. of City of NY, 84 AD3d 524; Rollins v New York City Bd. of Educ., 68 AD3d 540, 541). Accordingly, it is ORDERED, that the motion for summary judgment by defendant, The New York City Department/Board of Education is granted; and it is further ORDERED that the complaint and any cross-claims as against this defendant are severed and dismissed; and it is further ORDERED that the Clerk enter Judgment and mark his records accordingly. This constitutes the Decision and Order of the Court. E N T E R, Dated: August 16, 2013 _/s/___________________________ Hon. Thomas P. Aliotta J.S.C. 5

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