Diaz-Herrera v City of New York
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Diaz-Herrera v City of New York 2014 NY Slip Op 33445(U) December 3, 2014 Supreme Court, Bronx County Docket Number: 3500558/09 Judge: Mitchell J. Danziger 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] . FJLE8 ·Dec 12 2014 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX I . ----------------------------~-~-----------x CHRISTIAN DIAZ-HERRERA, AN ,INFANT BY HIS FATHER AND NATURAL GUARDIAN, CHRISTIAN DECISION AND ORDER DIAZ, Index No: 3500558/09 Plaintiff(s), - against THE CITY OF NEW YORK AND I THE BOARD EDUCATION OF THE CITY OF NEW YORK, OF 'Defendant(s). ---~-----------------------7------------x In this action for negligent supervision of a student within a public school such negligE'.nt supervision resulting in an alleged injury - defendants move for an order granting them summary ; judgment as to plaintiffs' claims of negligent supervision. Defendants aver that insofar as plaintiff CHRISTIAN DIAZ-HERRERA's (Diaz-Herrera) injuries were 'caused by the sudden and spontaneous act of anotrer student, defendants bear no liability as a matter of law. Alternatively, defendaqts seek an order pursuant to CPLR § 3211 (a) (7) dismissing this act;ion against defendant THE CITY OF NEW YORK (The City) on grounds thqt because the complaint evinces that the accident alleged occurred within a school, as a matter of law, this action can only be maint~ined EDUCATION OF THE CITY OF NEW separate and distinct schools. Thus, ~ORK against defendant THE BOARD OF (the Board), rather than City, a legal :entity, not responsible for public defendants argue that as against the City, . I I Page 1 of i . 19 the [* 2] FILED Dec i2 2014 Bronx County Clerk complaint fails to state a c9use of action. portion of 'motion defendants' Plaintiffs oppose the seeking judgment summary preliminarily averring that insofar as this motion was served upon them more than 120 days aftet they filed their Note of Issue, the i instant motion is untimely and no good cause exists warranting consideration of defendants' belated motion. Moreover, plaintiffs aver that inasmuch as Diaz-He'rrera' s accident was precipitated and preceded by an altercation between him and the student which caused his accident, the accident herein was foreseeable and extant questions of fact as to whether this accident was spontaneous and whether defendants provided adequate supervision preclude summary Plaintiffs do not oppose the portion of defendants' judgment. motion seeking dismissal of this action against the City. For the reasons that fol]ow hereinafter, defendants' motion is hereby granted, in part. The instant action is fo1r alleged personal injuries premised on the negligent playground. supervision a and operated by the Bars located with~n within a school defendan~ts on PS 89 - a school owned, maintained, - was pushed and kicked off the school Plaintiffs allege that defendants adequately student The complaint alleges that on February 9, 2009, Diaz- Herrera, while a student Monkey of supervise the grounds by another were negligent student. in failing stu;dents, such negligence Page 2 of 19 to causing the [* 3] FILED Dec 12 2014 Bronx County Clerk accident and the injuries resµlting therefrom. Plaintiff CHRISTIAN I DIAZ (Diaz), Diaz-Herrera's father, asserts a derivative loss of services claim. Preliminarily, the cause for the delay prescribed by the Cour~ in holds that defendants establish good m~king this CPLR insofar as attempts to serve this motio~ the motion within the time record establishes that upon plaintiffs within the 120 days following plaintiffs' filing of their Note if Issue were fruitless solely because plaintiff's counsel failed to apprise defendants that he had moved his office ·to a new location. CPLR §3212(a) prescribes the time within which summary judgement motions may be made and states that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. Absent a showing of "good cau~e" for the delay in timely filing a motion for summary judgment, a court cannot consider such a motion on the merits and must instead decline to hear the motion outright (Brill v City of New York, 2 IDY3d 648, 652 [2004]; Miceli v State Farm Mutual Automobile Insura~ce Company, 3 NY3d 725, 727 i [2004]; Glasser v Ibramovitz, 37 AD3d 194, 194 [1st Dept 2007]; Rocky Point I ' Page 3 of 19 [* 4] FILED Dec 12 2014 Bronx County Clerk Drive-In, v Town Accordingly, 2007]). action L. P. is meritless, of Brookhaven, 37 AD3d 805, 808 whether a motion has merit, summary judgment is in [2d Dept the cause of the interest of judicial economy, or that the opponent will not be prejudiced by I the court's consideration oflthe motion, the foregoing shall not, I absent a showing of good cause, be sufficient grounds for the court to hear a belated motion for summary judgment (Brill at 653). I is b~cause This "statutory time frpmes - like court-ordered time frames - are not options, they are ~equirements, to be taken seriously" (Miceli at 727) . For purposes of CPLR for the delay in filing § 3212, good cause means a good excuse the motion, meaning explanation for the delay (Br:ill at 652) . a satisfactory More specifically, (g] ood cause is written expression or explanation by the1 party or his legal representative e~incing a viable, credible reason fo1r the delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement (Bruno Surace v Diane Lostrappo, 176 Misc2d 408, 410 [Supreme Court Nassau County 1998]). Ultimately, what constitutes good cause has less to do with the merits of tthe actual motion and mpre to do with reason for Services, the Inc., untimeliness 289 AD2d 90, (Luciano 91 I provided that good cause is shown, I . Page 4 of [1st v Apple Dept Maintenance 2001]), and, & thus, a court is always within its 19 [* 5] FILED Dec i2 2014 Bronx County Clerk discretion to hear a motion for summary judgment regardless of the delay in making the same (id.). It is well settled that law office failure, or ignorance, does ' not constitute good cause warranting consideration of a belated motion for summary judgment (Giudice v Green 292 Madison, LLC, 50 AD3d 506, 506 [1st Dept 2008] argument, existed ["Nor are we persuaded by USADATA's raised for the fiEst time on appeal, by preliminary reason of compliance the ·ambiguity order and created compliance that good cause by the court's conference orders. USADATA's failure to appreci~te that its motion was due within 45 ' days after the filing of the note of issue is no more satisfactory than a perfunctory claim of l~w office failure" (internal quotation marks omitted).]; Azcona v Salem, 49 AD3d 343, 343 [1st Dept 2008] [Defendant's motion for summary judgment was denied as untimely because court held that defendant's failure to learn that new note of issue had been filed, which started the clock on the time within which to make such motion, constituted law office failure and was, thus, not tantamount to good: cause.]; Inc., 45 AD3d 284, 286 Crawford v Liz Claiborne, [1st Dept 2007] [Defendant's motion for summary judgment denied when made after the deadline set by the court. Court held that defemdant's failure to be aware that the court ·had shortened the time to make motion was tantamount to law office failure, which does not constitute good cause], revd on other grounds 11 NY3d 810 [2008]; Farkas v Farkas, 40 AD3d 207, 211 Page 5 of 19 [* 6] FILED Dec i2 2014 Bronx County Clerk [1st Dept 2007] [Court held ;that plaintiff's failure to abide by I statutory time frame due to o.versight was tantamount to law office failure, which does not am6unt to good cause], revd on other grounds 11 NY3d 300 [2008]; Breiding v Giladi, 15 AD3d 435, 435 [2d I Dept 2005] . [Court held that clerical inadvertence and reassignment of counsel were not tantamount to good cause so as to warrant consideration of a belated motion for summary judgment.]). Here, service while it is true that defendants as evinced by their affidavit of did not properly serve counsel with the instant motion until July 1, plaintiffs' 2014 almost seven months after January 30, 2014, the date when plaintiffs filed their Note· of Issue, the very same affidavit evinces that defendants attempted to serve plaintiffsi' counsel with the instant motion on May 30, filed. 2014, within the 120 days after the Note of Issue was However, as evinced by the defendants affidavit of service and the envelope within which the instant motion was mailed, the motion was returned as undeliverable to the very address listed within plaintiffs' Ultimately, Notice defendants of Claim and learned of summons plaintiff's and complaint. counsel current address and on July 1, 2014, served him.with the instant motion. Because, as per CPLR §22l1 "[a] motion on notice is made when a notice of the motion or an order to show cause is served" (Ageel ' v Tony Casale, Inc., 44 AD3d 572, 572 [1st Dept 2007]; Gazes v Bennett, 38 AD3d 287, 2B8 [1St Dept 2007]), there is no question Page 6 of 19 [* 7] FILED Dec 12 2014 Bronx County Clerk that this motion was made when it was properly served upon plaintiffs in July, well beyond the 120 days within which to timely However, since def~ndants were never properly apprised make it. that plaintiffs' counsel had relocated, they mistakenly served him at the address they had on ifile and once apprised of his new address promptly and properly served him there. Thus, defendants establish good cause for making this belated motion and the Court will decide the same on the merits. Notably, the mistake here cannot be deemed inexcusable law office failure because although plaintiffs' counsel new address was listed within the Note of Issue he filed in January, he nevertheless failed to formally officially apprise defendants' that he had moved his office. defendants were entitled to assume and rely on the and Thus, address initially provided to them as early as April 20, 2009, which was listed within the On the ~otice merits, of Claim filed howevet, b~ plaintiffs. defendants' motion for summary judgment must be denied insofar as plaintiffs' evidence raises an issue of fact as whether . defendants to whether properly the accident supervised was spoptaneous Diaz-Herrera so as and to prevent his accident and the resulting injuries. The proponent of a motion for summary judgment carries the initial burden of tendering; sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of Page 7 of 19 [* 8] FILED Dec 12 2014 Bronx County Clerk law (Alvarez v Prospect 68 Hospital, NY2d 320, 49 NY2d 557, 562 Zuckerman v City of New York, 324 [1986]; [1980]). Thus, a I I defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence~ the merits of the claim or defense, ; and not merely by pointing to gaps in plaintiff's proof (Mondello I v Distefano, 16 AD3d 637, 6~8 [2d Dept 2005]; Peskin v New York 304 AD2d 634, City Transit Authority, 634 [2d Dept 2003]). movant meets the initial burden on summary judgment, Once the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible \form, to establish the existence of a triable issue of fact It is well (Zuckerman at 562). settled that ·" [s] chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervistion" (Mi rand v City of New York, 84 NY2d 44, 49 [1994]; Doe v Rohan, 17 AD3d 509, 511 [2d Dept 2005]; Doe v Orange-Ulster Bd. [2004]). in of·Coop. Educ. Servs., 4 AD3d 387, 388 The duty owed derives from the simple fact that a school, assuming physical custody and control over its students, ' effectively takes the place of parents and guardians (Mi rand a:t 4 9; Pratt school v Robinson, to its 39 NY2d 554, students, 560 [1976] however, stems Page 8 of 19 ["The duty owed by a from the fact of its [* 9] FILED Dec 12 2014 Bronx County Clerk physical custody over them. custody of the child, As the Restatement puts.it, by taking the school has deprived the child of the protection of his parents 9r1 guardian. takes custody of a Therefore, the actor who child is properly required to give him the protection which the custody or the manner in which it is taken has deprived him. The school's duty is thus coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases." [internal citation and quotation marks omitted) J). However, schools are not insurers of safety and cannot reasonably be expected to continuously supervise and control all movements and activities of the students in their charge (Mirand at 49; Doe, 4 AD3d at 388). Thus, the standard of care a school owes to its students - as it relates to supervision - is the supervision and protection which "a parent of ordinary prudence would observe in comparable circumstances" (Doe, 17 AD3d at 511; Doe, 4 AD3d at 388; David v County of Suffolk, 1 NY3d 525, 526 [2003]; Mirand at 49). Hence, schools are under a duty to adequately supervise their students and are liable for foreseeable injuries which proximately caused by the absence of such supervision City of New York, 222 AD2d · 192, 194 Page 9 of 19 [1st Dept 1996]). are (Garcia v Stated [* 10] FILED Dec 12 2014 Bronx County Clerk differently, breached the duty to pr,ovide adequate supervision has been when "school i authorities is, that the sufficiently specific d~ngerous conduct which caused injury; third-party acts could reasonably have been knowledge or notice of the that had I anticipated" (Mirand at 49; Brandy B. v. Eden Cent. School Dist., 15 NY3d 297, 302 [2010]; Conklin v Saugerties Cent. School Dist., 106 AD3d 1424, 1425 [3d Dept 2013]). Accordingly, the sine qua non to liability in an~ case alleging inadequate supervision is actual or constructive notice (Mirand at 49). to the school of prior similar conduct This of course, makes perfect sense insofar is it is beyond cavil that school personnel cannot reasonably be expected to guard against conduct, and, therefore, the likes of which, likely to recur (id.). they were unaware Once on notice of prior dangerous conduct, a school is liable if it fails to provide the requisite degree of supervision to reasonably prevent harm (Garcia at 196 ["In view of the foregoing, and by the use of plain common sense, we conclude that the school, acting in loco parentis, did not act with ordinary prudence in allowing plaintiff to proceed to the bathroom alone."]). the five-year-old Whether the steps taken by a school to protect a student from foreseeable harm are adequate is generally a question of fact for a jury (Mirand at 51; Conklin at 1426). Because supervise liability students for within a school~s its charge Page 10 of 19 negligence is to premised properly on the [* 11] FILED Dec 12 2014 Bronx County Clerk foreseeability of the injurious conduct alleged, it is well settled I that a school cannot be liable for conduct which is so sudden and I spontaneous that no amount of supervision could have prevented it (Mirand v constructive generally notice required reasonably 84 NY2d 44, City of New York,, be to 49 (1994] ["Actual or the ·school of prior similar conduct because, · obviously, expected to guard school against personnel all of the is cannot sudden, spontaneous acts that take place among students daily; an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act."]; Ohman v Board of Educ. of City of N.Y., 300 NY 306, 310 [1949] [No liability for an event that could "occur equally as well in the presence of the ·teacher as during her absence."]; Parochial School, facts afford no Huertas v Our Lady of Refuge 273 AD2d 79', 79 [1st Dept 2000] reason to suppose that a ["Moreover, the higher supervision would have prevented plaintiff's injury. level of Indeed, the impulsive, careless act of the: infant plaintiff's co-student in the course of ordinary recess play activities was not the sort of conduct foreseeably related to supervisory inadequacy that schools may be fairly charged with preventing."]; Wilber v City of Binghamton, 271 AD 402, 406 [3d Dept 1946] ["There is nothing in the record to show that prior to the accident anything had occurred to Page 11 of 19 \ [* 12] FILED Dec 12 2014 Bronx County Clerk suggest that vigilance should have been taken to guard against the occurrence which took plac~."]). Accordingly, inte~vene generally not required to a teacher is in the absence of notice that i I students are engaged in th~ type of energetic play that could result in injury (Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650, 652 ' [2d De'.pt 1989]), and even when there is a clear violation of the duty to provide supervision, upon. which the injury is premised are sudden, if the acts spontaneous, and, thus, unforeseeable, liability will not lie (Mirand at 50; Siegell 7 AD3d 607, v Herricks Union Free School' Dist., 2004] 608-609 [2d Dept ["Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the School defendants is warranted."]; Convey v City of Rye School D~st., 271 AD2d 154, 160 [2d Dept 2000] [same]; Baker v Eastman Kodak Co., 34 AD2d 886, 886 [4th Dept 1970] ["The sudden and abrupt action of the unknown happened in a matter of seconds, could not have been avoided by the most intensive supervision."], skater, which anticip~ted or affd 28 NY2d 636 [1971]). Here, defendants' evidence in support of their motion ' establishes prima facie entitlement to summary judgment insofar as ' it paints a version of the facts where Diaz-Herrera was the victim of the spontaneous unforese~n act by another student who suddenly Page 12 of 19 [* 13] FILED Dec 12 2014 Bronx County Clerk and without warning kicked him while he was on top of the Monkey Bars, knocking him to the gro'Lmd. Specifically, defendants submit Diaz-Herrera's 50-h transcript wherein he te~tified that while in the schoolyard, in the presence of a teacher, Mrs. Maria, he was kicked by another boy while atop of the Monkey Bars. Defendants also submit Diaz' 50-h tran$cript, February 9, he receiv~d a call from PS 89, where his son, 2009, wherein he testified that on Diaz-Herrera, attended school informing him that Diaz-Herrera had been involved in an accident. injured when he was another student. He then learned that his son was kicked and knocked off the Monkey Bars by Diaz furtber testified that his son indicated that immediately prior to the accident, he had been pushed twice by the other student and that this same student then followed him to the Monkey Bars, kicking him while they were both thereon. defendants (Ciacca), submit a Herrera's the deposition testimony of Maria Lastly, Ciacca school aid employed at PS 89 on the date of Diaz- accident. Ciacoa testified that she was in the playground with approximately three kindergarten classes on the date of the instant accident and with at least one other school aid. She further stated that she was first informed that plaintiff had been involved in an accident when he approached her and told her that he had fallen off the Monkey Bars located thereat. I Ciacca I did not see the accident and testified that if she had observed any rough play, pushing, or shoving amongst the students, Page 13 of 19 she would [* 14] FILED Dec i2 2014 Bronx County Clerk have intervened, telling them not to behave in that manner. I The foregoing evidence establishes that the instant accident was the kind of sudden and spontaneous accident for which a school cannot be held liable even if the school had been negligent in the level of supervision provided (Mirand at 50; Siegell at 608-609; Convey at 160; Baker at 886). herein was student preceded by who ultimately While Diaz testified the accident Diaz-Herrera kicked him being off shoved by the Monkey the same Bars, such testimony is inadmissible hearsay, which while certainly fatal if credited, presents no impediment to defendants' initial burden insofar as hearsay cannot be considered in support a motion for summary judgment (Pichel v Dryden Mut. *273 [3d Dept 2014]; Hernandez v Tepan, 2012]; Wen Ying Ji v [1st Dept 2006]). Rockros~ denied insofar Co., 117 AD3d 1267, 92 AD3d 721, 722 [2d Dept Development Corp., 34 AD3d 253, 254 Accordingly defendants establish prima facie entitlement to summary Defendants' Ins. judgm~nt. motion as for summary judgment, plaintiffs' evidence in however, opposition must be raises a triable issue of fact as to whether this accident was spontaneous or whether it was in fact foreseeable and preventable. Saliently, plaintiff submits an affidavit from Diaz-Herrera wherein he states I that immediately prior to be~ng pushed kicked and knocked off the Monkey bars, the student who kicked him had just pushed him to the Pag¢ 14 of 19 [* 15] FILED Dec 12 2014 Bronx County Clerk ground as he stood in a group looking at Spiderman Cards. Thereafter, this same student followed Diaz-Herrera to the Monkey i\1f1 Bars, whereupon he proceeded to kick him from behind, knockingvto the ground. The foregoing controverts defendants evidence, which as discussed above, which was so established that this accident was the kind sponta~eous could have prevented it in nature that no amount of supervision (Huertas at 79; Wilber at 406). On the contrary, crediting Diaz-Heriera's version of the events, the fact that he was shoved and knocked to the ground arguably should have led to intervention by Ciacca (Gattyan at 652 [In the absence of notice that students are engaged in the type of energetic play that could result in injury, intervene.]) a teacher is generally not required to Such intervention, a reasonable jury could conclude, would have prevented the instant accident. of fact as Accordingly, questions to the spontaneity of this accident and, thus, the adequacy of the supervision provided by defendants preclude summary judgment in their favor. Contrary to defendants' assertion this case is inapposite to De Los Santos v New York City Dept. of Educ. 2007]), where the court gralnted defendant's motion for judg~ent noti~e (42 AD3d 422 [2d Dept summary on grounds that defendant established "that it was not on that the children were1 engaged in dangerous or inappropriate play so as to warrant closer supervision or intervention" (id. at 423). While in De Los Santos, plaintiff was injured while playing Page 15 of 19 [* 16] FILED Dec 12 2014 Bronx County Clerk a game, which was neither "dangerous" nor constituted "inappropriate play," thereby leading the court to hold that the degree of supervision was reasonable and adequate here by Ciacca' s accident - own standard the (id. event preceding the at 423), instant ' the pushing of Diaz-Herrera to the ground by antoher student - was inappropriate and of the kind she would have stopped had she observed it. In fact, ; here, the events preceding the accident - the pushing and the following - as described by DiazHerrera - substantially diminish the spontaneity of the instant accident inasmuch as ~ jury could conclude that it was foreseeable that the pushing immediately preceding the accident would continue atop. of the Monkey Bars. Stated differebntly, a jury could conclude that defendants "ha·d sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts [of the other student] could reasonably have been anticipated" (Mirand at 49). Defendants' motion for summary judgment must, therefore, be denied. Defendants' motion seeking dismissal of this action against the City. is hereby granted insofar as the complaint fails to state a cause of action because in cases alleging negligence within public schools the City is not a proper party. f I On a motion to dismiss a comp~aint pursuant to CPLR 3211(a) (7) all allegations in the complaint are deemed to be true I I . I Page 16 of ' I I 19 (Sokoloff v [* 17] FILED Dec i2 2014 Bronx County Clerk Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [19~8]). All reasonable inferences which can be drawn from the complai'nt and the C!llegations therein stated shall be resolved in favor of the plaintiff (Cron at 366. In opposition to such a motion ~ plaintiff may submit affidavits to remedy defects in the complaint (id.). If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.) The court's, role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414 [2001]). fact, In the law mandates that the court's inquiry be not limited solely to deciding whether p]aintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994] the pleading has a [''(T)he criterion is whether the proponent of cause of' action, not whether he has one. "] ) . CPLR § 3013, states that [s] tatements in a, pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause ·of action or defense. Page 11 of 19 stated [* 18] D Dec 12 2014 Bronx County Clerk As such,. a complaint must contain facts essential to give notice of I a claim or defense (DiMauro v Metropolitan Suburban Bus Authority, 1 105 AD2d 236, 239 [2d Dept 1984]). Vague and conclusory allegations will not suffice (id.); Fowler v American Lawyer Media, ; Inc., 306 AD2d 113, 113 [1st Dept 2003]); Shariff v Murray, 33 AD3d . 688 (2nd Dept. 1 Dept 1998]). conclusory, 2006); I Stoianoff v Gahona, When the allegations in a 248 AD2d 525, 526 [2d complaint are vague or dismissal for failure to state a cause of action is warranted (Schuckman Realty, .,·,Inc. v Marine Midland Bank, N.A., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk ChapteE, Local 852, Civil Service Employees Association, Inc., No. 95 AD2d 800, 800 [2d Dept 1983]). It is well settled that, the City and the Board are separate legal entities (Gold v City of New York, 80 AD2d 138, 140 [1st Dept 1981]; Perez v City of New York, 41 AD3d 378, 379 [1st Dept 2007], lv denied 10 NY3d 708 (2008]; Campbell v City of New York, 203 AD2d 504, 505 [2d Dept 1994]), a;nd, thus, in an action arising from injuries sustained on school, grounds, the City is never a proper party (Flores at 506; Corzino v City of New York, 56 AD3d 370, 371 (2008]; Bailey v City of New York, 55 AD3d 426, 426 [1st Dept 2008]). I Here, taking the allegations in the complaint as true, it is I ' nevertheless clear that this', accident occurred at PS 89, a public i Page 18 of 19 [* 19] FILED Dec 12 2014 Bronx County Clerk school under the auspices of the Board and that, thus, the City is an improper party to this action. Accordingly, the complaint fails to state a cause of action against the City and defendants' motion seeking dismissal of the act~on as against the City is granted. It i is hereby ORDERED dismissed. that plaintiffs' complaint against the City be It is further ORDERED that defendant$ serve a copy of this Decision and Order with Notice of Entry upon plaintiffs within thirty (30) days hereof. This constitutes this Court's decision and Order. Dated December_3, 2014 Bronx, New York Mitch~er, Page 19 of 19 ASCJ
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