Martinez v City of New York

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Martinez v City of New York 2013 NY Slip Op 32577(U) October 18, 2013 Sup Ct, New York County Docket Number: 111536/2009 Judge: Kathryn E. Freed 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. SCANNED ON 10/22/2013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ·~. . PRESENT: HON. KATHRYN FREED JUSri1CE OF SUPRE.ME COURT PART / '0 Justice Index Number : 111536/2009 MARTINEZ, JOSEPH vs. CITY OF NEW YORK SEQUENCE NUMBER: 001 DISMISS C. I') L INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. _ __ ~ ~ "1, <=j The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, it is ordered that this motion is w () ;::: C/) :::> .., DECfD!D IN ACCORDANCE WITH ACCOMPANYING DECISION I ORDER 0 I- C w a:: a:: w LL w a:: .. >- ....... -' ~ -' 0 z :::> u. <( I- "' () w w a:: g, (!) w z a:: C/) 3: - 0 w -' C/) - ' <( () 0 LL - :::c z w 0 I- ;:: a:: 0 :IE 0 LL Dated: Jo ---1 ?-i 3 OCT 1 R 2013 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 0 CASE DISPOSED GRANTED ODENIED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0DONOTPOST 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 5 ---------------------------------------------------------------------)( JOSEPH MARTINEZ, INDIVIDUALLY AND AS THE FATHER AND NATURAL GUARDIAN OF THE INFANT, ASHLEY MARTINEZ, Plaintiffs, -against- CITY OF NEW YORK AND NEW YORK CITY DEPARTMENT OF EDUCATION, DECISION/ORDER Index No. 111536/2009 Seq. No. 001 FILED OCT 2 2 2013 Defendants. ---------------------------------------------------------------------)( KATHRYNE. FREED, JSC: COUNTY CLERK'S OFFICE NEW YORK RECITATION, AS REQUIRED BY CPLR§2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION. PAPERS NOTICE OF MOTION AND AFFIDAVITS ANNEXED .................. . ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED ........... . ANSWERING AFFIDAVITS ............................................................... . REPLYING AFFIDAVITS ................................................................... . EXHIBITS ............................................................................................. . OTHER.................................................................................................. . NUMBERED ...... 1-2 ( Exhs. A-F) ......... 3 .......... . ........ .4 ......... .. UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS: Defendants move for an Order pursuant to CPLR §3211 (a)(7), dismissing plaintiffs' Verified Complaint and/or pursuant to CPLR§ 3212, granting summary judgment to defendants dismissing all claims and cross-claims. Plaintiffs oppose. After a review of the papers presented, all relevant statutes and case law, the Court grants the motion as to the City only. Factual and procedural background: This is an action to recover monetary damages for personal injury allegedly sustained by 14 year old infant plaintiff, Ashley Martinez, ("plaintiff'), on May 27, 2008. Plaintiff, a seventh grader [* 3] at that time, alleges that she was assaulted by approximately eight females at the Lieutenant William Tighe Triangle, which is also known as Riverside Inwood Neighborhood Gardens, located where Riverside Drive, Dyckman Street and Broadway intersect in New York County. Plaintiff's father, Joseph Martinez, sues for loss of services and expenses. According to infant plaintiff, on May 27, 2008, she was a student at Public School LS. 218. On that particular day, she apprised school Dean Robert Guzman, that she was "attacked off of school property" a few days earlier by another student named Yadel Taveras. Nevertheless, Mr. Guzman sent plaintiff to class. Later that day, during 5th period lunch, plaintiff was warned by another student named Michele, that Tavares's friends planned to attack plaintiff after school. Michele showed plaintiff an e-mail on her phone which confirmed this warning. Plaintiff and Michele then showed said e-mail to Teacher James Figueroa, who asked Michele to forward theemail to his e-mail address. He also stated that he would inform the principal and call plaintiff's mother. Plaintiff also attempted to show the e-mail to Principal June Barnett, but was not permitted access to her. Later that day, plaintiff went to see both Mr. Figueroa and Dean Guzman, who were unable to speak with her. Having received no direction from school officials, plaintiff decided to leave school early in an effort to avoid any confrontation with the prospective attackers. She left with a friend, Alba Hernandez. Approximately one block from school, eight young women confronted plaintiff and Alba, identifying themselves as friends and relatives of Tavares. After one of the young women struck plaintiff, a fight ensued wherein Alba was stabbed and plaintiff was cut multiple times with what she perceived at that time to be a box cutter. Consequently, she was transported to Columbia Presbyterian Hospital Emergency Room. She sustained severe lacerations resulting in disfiguring scars to her head and back. Thereafter, on August 22, 2004, plaintiff's father Joseph Martinez, individually and as the father and natural guardian of plaintiff, served a Notice of Claim on defendants. He also commenced 2 [* 4] the instant action via service of a Summons and Verified Complaint on or about September 23, 2009. Defendants joined issued via service of an Answer on or about October 1, 2009. Mr. Martinez served a Bill of Particulars on or about April 27, 2011. On January 23, 2009, plaintiff testified at a hearing pursuant to General Municipal Law§ 50-h. Positions of the parties: The City argues that it since it and the Department of Education are separate entities, it is not a proper party to the instant suit and as such, the complaint must be dismissed as against it. Plaintiffs argue that defendants have failed to make a prima facie showing of entitlement to summary judgment in that it is well settled that school districts have a duty to provide supervision to ensure the safety of those students in their charge. This duty continues when the student in released into a potentially hazardous situation which poses a foreseeable risk of harm. Conclusions of law: "The proponent of a summary judgment motion must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" ( Dallas-Stephenson v. Waisman, 39 A.D.3d 303, 306 [1st Dept. 2007], citing Winegradv. New York Univ. Med Ctr., 64 N.Y.2d 851, 853 [1985] ). Once the proponent has proffered evidence establishing a prima facie showing, the burden then shifts to the opposing party to present evidence in admissible form raising a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1989]; People ex rel Spitzer v. Grasso, 50 A.D.2d 535 [I st Dept. 2008] ). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture or speculation" (Morgan v. New York Telephone, 220 A.D.2d 728, 729 [2d Dept. 1985] ). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied ( Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]; Grossman v. Amalgamated Hous. Corp., 298 A.D.2d 224 [1st Dept. 2002] ). 3 [* 5] It is well settled that the Board of Education continues to exist as a separate and distinct entity from the City of New York (see Education Law§ 3590-g[2]; Perez ex rel Torres v. City of New York, 41A.D.3d378 [1st Dept.], Iv dismissed 16 N.Y.3d 733 [2011]; Goldv. Cityo/New York, 80 A.D.2d 138, 140 [!51 Dept. 1981]; Montgomery-Costa v. Cityo/New York, 26 Misc.3d 755, N.Y. Slip Op. 29461 (Sup Ct NY County 2009) ). In the case at bar, it is clear that the City is not a proper party to the suit. Indeed, in plaintiffs' opposition papers, they proffer arguments that are directed specifically to the Department of Education. Therefore, in accordance with the foregoing, it is hereby ORDERED that defendant City ofNew York's motion for summary judgment is granted and the complaint and any cross claims are hereby severed and dismissed as against said defendant, and the Clerk is directed to enter judgment in favor of said defendant; and it is further · ORDERED that the remainder of the action shall continue, and it is further ORDERED that defendant City shall serve a copy of this order with notice of entry on the Trial Support Office at 60 Centre Street, Room 158; and it is further ORDERED that this constitutes the decision and order of the Court. DATED: October 18, 2013 OCT 1 P. 2013 ENTER: FILED OCT 2 2 2013 COUNTY CLERK'S OFFICE NEW YORK 4 Hon. Kathryn E. Freed HON. l<AftiUlYN FREED rosncB OF SUPREMli COURT

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