Castillo v City of New York

[*1] Castillo v City of New York 2017 NY Slip Op 51062(U) Decided on August 24, 2017 Supreme Court, Bronx County Barbato, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2017
Supreme Court, Bronx County

Andy Castillo, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, FRANCISCA ALBA AND FRANCISCA ALBA INDIVIDUALLY, Plaintiff(s),

against

The City of New York, THE NEW YORK CITY DEPARTMENT OF EDUCATION, AND HOYT TRANSPORTATION, Defendants.



13664/07



Counsel for Plaintiff: Pena & Kahn

Counsel for Defendant Hoyt Transportation: Wilson Elser Moskowitz Edelman & Dicker, LLP

Counsel for the City and Department of Education: New York City Law Department
Ben Barbato, J.

In this action for negligent supervision of a student within a school bus - such negligent supervision resulting in an alleged injury - defendant HOYT TRANSPORTATION (Hoyt) moves for an order granting it summary judgment. Hoyt avers that, inter alia, insofar as plaintiff ANDY CASTILLO's (Castillo) injuries were caused by the sudden and spontaneous act of another student, it bears no liability as a matter of law. Plaintiffs oppose the instant motion asserting that questions of fact with respect to the spontaneity of the instant accident as well as with respect to prior notice of Pollard's assault upon Castillo preclude summary judgment. Defendant THE NEW YORK CITY DEPARTMENT OF EDUCATION (the Department) cross-moves seeking summary judgment for reasons identical to those asserted by Hoyt. Defendant THE CITY OF NEW YORK (the City) cross-moves seeking dismissal of this action pursuant to CPLR § 3211(a)(7) on grounds that the complaint fails to state a cause of action because the accident alleged occurred while Castillo was in the Department's custody. As such, the City contends that as a matter of law, the City is an improper party. Plaintiffs oppose the Department's cross-motion on the same grounds they oppose Hoyt's motion. The City's cross-motion is unopposed.

For the reasons that follow hereinafter Hoyt's motion and the Department and the City's cross-motion are granted.

The instant action is for alleged personal injuries premised on the negligent supervision of a student within a school bus. The complaint alleges that on February 28, 2006, Castillo, while a student at PS 169, located in New York County, and owned, maintained, and operated by the Department and the City, was [*2]injured while within a school bus. It is alleged that the foregoing defendants and Hoyt owned, operated and maintained the bus. Plaintiffs further allege that on the foregoing date, while Castillo was a passenger in the aforementioned bus, he was assaulted by another student, sustaining injuries as a result. It is alleged that defendants were negligent in failing to properly supervise the students within the bus, such negligence causing the incident and injuries alleged. Plaintiff FRANCISCA ALBA (Alba), Castillo's mother, interposes a derivative loss of services claim.

Summary Judgment

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 law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a 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 v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]).

Once movant meets his initial burden on summary judgment, 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 (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact. Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement [*3]of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case(Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). When the proponent of a motion for summary judgment fails to establish prima facie entititlment to summary judgment, denial of the motion is required "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

It is well 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 supervision" (Mirand 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. of Coop. Educ. Servs., 4 AD3d 387, 388 [2004]). The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians (Mirand at 49; Pratt v Robinson, 39 NY2d 554, 560 [1976] ["The duty owed by a school to its students, however, stems from the fact of its physical custody over them. As the Restatement puts it, by taking custody of the child, the school has deprived the child of the protection of his parents or guardian. Therefore, the actor who takes custody of a 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 [*4]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)]).

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 are proximately caused by the absence of such supervision (Garcia v City of New York, 222 AD2d 192, 194 [1st Dept 1996]). Stated differently, the duty to provide adequate supervision has been breached when "school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been 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, generally the sine qua non to liability in any case alleging inadequate supervision is actual or constructive notice to the school of prior similar conduct (Mirand at 49). This of course, makes perfect sense insofar is it is beyond cavil that school personnel cannot reasonably be expected to guard against conduct, the likes of which, they were unaware and, therefore, likely to recur (id.). 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 the five-year-old plaintiff to proceed to the bathroom alone."]). 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 liability for a school's negligence to properly supervise students within its charge is premised on the foreseeability of the injurious conduct alleged, it is well settled that a school cannot be liable for conduct which is so sudden and spontaneous that no amount of supervision could have prevented it (Mirand v City of New York, 84 NY2d 44, 49 [1994] ["Actual or constructive notice to the school of prior similar conduct is generally required because, obviously, school personnel cannot reasonably be expected to guard against all of [*5]the 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 NY, 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."]; Huertas v Our Lady of Refuge Parochial School, 273 AD2d 79, 79 [1st Dept 2000] ["Moreover, the facts afford no reason to suppose that a higher level of supervision would have prevented plaintiff's injury. 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 suggest that vigilance should have been taken to guard against the occurrence which took place."]). Accordingly, a teacher is generally not required to intervene in the absence of notice that students are engaged in the type of energetic play that could result in injury (Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650, 652 [2d Dept 1989]), and even when there is a clear violation of the duty to provide supervision, if the acts upon which the injury is premised are sudden, spontaneous, and, thus, unforeseeable, liability will not lie [FN1] (Mirand at 50; Siegell v Herricks Union [*6]Free School Dist., 7 AD3d 607, 608-609 [2d Dept 2004] ["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 Dist., 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 skater, which happened in a matter of seconds, could not have been anticipated or avoided by the most intensive supervision."], affd 28 NY2d 636 [1971]).

Significantly, because the duty owed to a student is "coextensive with and concomitant to its physical custody of and control over the child" (Pratt v Robinson, 39 NY2d 554, 560 [1976]), when a school undertakes to provide busing from its school, the duty owed to the student while at school continues until the student is discharged from the bus "[w]hen 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" (id. at 560). Notably, it is well settled that the foregoing law, and duties promulgated therein, apply equally to a bus operator to whom the care of a student is entrusted (Thomas v Bd. of Educ. of Kingston City Consol. School Dist., 291 AD2d 710, 711—12 [3d Dept 2002] [*7]["The nature of the duty owed to students is to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances. Further, a bus operator such as Laidlaw owes the very same duty to the students entrusted to its care and custody" (internal citation and quotation marks omitted).]; Harker v Rochester City School Dist., 241 AD2d 937, 938 [4th Dept 1997]).

Hoyt's Motion.

Hoyt's motion seeking summary judgment is hereby granted insofar as the uncontroverted evidence establishes that it had no prior notice that plaintiff had been physically assaulted by Mark Pollard (Pollard) before the instant accident such that it was - as urged - required to keep them apart and because, in any event, it is clear that the assault herein was spontaneous, incapable of being prevented under any reasonable level of supervision.

In support of the instant motion, Hoyt submits Castillo's deposition transcript wherein he testified, in pertinent part, as follows: On February 28, 2006 between 3 and 4PM, Castillo was involved in an incident while in small school bus on his way home from school. At the time of the incident, Castillo was on the bus with a male bus matron, a bus driver, and three other students. Pollard was one of the students, who also attended Castillo's school. Upon entering the bus at school, Pollard was attempting to trip Castillo to no avail. Castillo then sat near the back of the bus and Pollard sat behind him. Pollard then began to kick the back of the Castillo's seat. Castillo informed the matron, seated about eight feet away, who either did nothing or asked that Castillo "go to the other seat in front." Castillo then "moved to the other seat in front of [him]," and away from Pollard. Sometime thereafter, when the bus was on the highway, halfway to Castillo's house, Pollard grabbed Castillo's arm and broke it. Prior to this incident, Pollard had never bothered Castillo while on the bus, but had bothered him at school. Castillo complained to a teacher, who merely laughed. On one occasion, while in the lunchroom, Pollard struck plaintiff with apples.

Hoyt submits Alba's deposition transcript wherein she testified, in pertinent part, as follows: On February 28, 2006, while at work, she received a call from her sister informing her that Castillo, her son, had been involved in an incident on a school bus. Prior to the instant incident, Alba had been to the school on numerous occasions to complain to Castillo's teachers about Castillo being hit and harassed by other students while at school. Prior to this incident, Castillo had not been involved in any fights with other students while at school.

Hoyt submits Karl Henry Beliard's (Beliard) deposition transcript wherein he testified, in pertinent part, as follows: On February 28, 2006 he was employed by Hoyt as a bus matron. [*8]His duties and responsibilities involved supervising students while they rode the school bus and helping them board and alight from the bus. On the foregoing date, he recalls an incident involving Castillo, a student at PS 169. Specifically, on the morning of the foregoing date, while Castillo rode the bus from his home to school, he refused to stay in his assigned seat; moving from seat to seat instead. Thereafter, while Castillo rode the bus from school to his home, Castillo again refused to remain in his assigned seat, refused to wear his seat belt, and moved from his assigned seat near the front of the bus, to a seat near the rear and in front of Pollard, another student on the bus. Both times, Beliard, who would sit in the middle of the bus, between the students sitting in the rear and the front of the bus, asked Castillo to stay in his seat and use his seat belt. Both times Castillo refused. On the trip home, after Castillo moved and sat in front of Pollard, Beliard noticed that they were engaged in conversation. Thirty minutes thereafter and upon arriving at Castillo's stop, Beliard noticed that the volume of the conversation between Castillo and Pollard had risen, but never witnessed any physical contact. Immediately thereafter, when Beliard asked Castillo to exit the bus, Castillo refused and indicated that he had been hurt by Pollard. Beliard testified that during the bus ride to Castillo's home, there were other students on the bus, but that she repeatedly observed the interaction between Pollard and Castillo, never witnessing any physical contact between them. Beliar also testified that she was prohibited from physically touching the students on the bus because of their age.

Based on the foregoing, Hoyt establishes prima facie entitlement to summary judgment insofar as it establishes that prior to the instant incident, it had no notice that Pollard had ever physically attacked Castillo and that the instant incident, on this record, was spontaneous and thus not preventable with more supervision.

As noted above, it is well 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 supervision" (Mirand at 49; Doe, 4 AD3d at 388). Thus, while 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), they nevertheless are required to provide 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 at 526; Mirand at 49). Schools are under a duty to adequately supervise their students and are liable for foreseeable injuries which are proximately caused by the absence [*9]of such supervision (Garcia at 194). Stated differently, the duty to provide adequate supervision has been breached when "school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" (Mirand at 49; Brandy B. at 302; Conklin at 1425). Accordingly, the sine qua non to liability in any case alleging inadequate supervision is actual or constructive notice to the school of prior similar conduct (Mirand at 49). Significantly, because liability for a school's negligence to properly supervise students within its charge is premised on the foreseeability of the injurious conduct alleged, it is well settled that a school cannot be liable for conduct which is so sudden and spontaneous that no amount of supervision could have prevented it (Mirand at 49; Ohman at 310; Huertas at 79; Wilber at 406). Accordingly, a teacher is generally not required to intervene in the absence of notice that students are engaged in the type of energetic play that could result in injury (Gattyan at 652), and even when there is a clear violation of the duty to provide supervision, if the acts upon which the injury is premised are sudden, spontaneous, and, thus, unforeseeable, liability will not lie (Mirand at 50; Siegell at 608-609; Convey at 160; Baker at 886). Because the duty owed to a student is "coextensive with and concomitant to its physical custody of and control over the child" (Pratt at 560), when a school undertakes to provide busing from its school, the duty owed to the student while at school continues until the student is discharged from the bus "[w]hen 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" (id. at 560). Again, it is well settled that the law and duties prescribing and imposing supervision over students apply equally to a bus operator to whom the care of a student is entrusted (Thomas at 711—12 [3d Dept 2002]; Harker at 938).

Here, while on this record, there exist questions of fact on the circumstances giving rise to this accident, under all factual scenarios supported by the record, Hoyt bears no liability. First, under the version of the events testified to by plaintiffs, Hoyt had no prior notice that Pollard had ever physically assaulted Castillo. Moreover, under this version of the facts, the alleged assault on the bus by Pollard was spontaneous and unforeseeable as a matter of law. Specifically, with regard to prior notice, Castillo testified that the only complaints he made to the teachers at PS 169 were about Pollard bothering him. Notably, Pollard never testified that his teachers were aware that Pollard had previously hit him with two apples in the lunchroom, the only time that Castillo alleges he [*10]was actually and previously hit by Pollard. In fact, Castillo testified that prior to the instant bus ride, Pollard had never bothered him while he rode the school bus. Thus, since the duty to provide adequate supervision has been breached when "school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" (Mirand at 49; Brandy B. at 302; Conklin at 1425), here under Castillo's version of the facts, where the school had no knowledge of any prior violent conduct by Pollard toward Castillo or toward anyone for that matter, Hoyt's duty of care was not breached and no liability lies as a result.

The same is true under the version of the facts proffered by Alba, who only testified that prior to this incident she had only made complaints to the school about students (in general) having hit Castillo. She did not complain - as required for liability - that Pollard had previously hit the Castillo.

Additionally, under both Castillo's version of the incident and that proffered by Beliard, the alleged assault by Pollard was spontaneous and unforeseeable. Significantly, Castillo testified that prior to the assault by Pollard, he had attempted to trip Castillo to no avail and then proceeded to kick the rear of Castillo's seat. Upon complaining to Belliard, he either did nothing or asked Castillo to move to another seat away from Pollard, which Castillo testified he did. Thereafter, while Belliard was seated eight feet away, Castillo felt Pollard grab his arm and break it. Thus, under this version of the facts, prior to suddenly and spontaneously breaking Castillo's arm, he had not assaulted Castillo nor touched him. Thus, there was no notice that Pollard would assault Castillo - as alleged - and the assault itself - as described by Castillo - was sudden, unforeseeable, spontaneous and, thus, not preventable (Mirand at 50; Siegell at 608-609; Convey at 160; Baker at 886).

The foregoing is true under the version of the events described by Belliard, since he testified that beyond Castillo misbehaving immediately prior to moving, sitting in front of Pollard, and having friendly conversation, despite frequently observing them, Beliard did not observe any assault by Pollard upon plaintiff. Thus, under Belliard's version of the events he observed nothing less than friendly interaction between Pollard and Castillo followed by Castillo's assertion that Pollard had hurt his arm.

Thus, Hoyt establishes prima facie entitlement to summary judgment and nothing submitted by plaintiffs raises an issue of fact sufficient to preclude summary judgment. Indeed, plaintiffs evidence is the very same warranting summary judgment in Hoyt's favor.

The Department's Cross-Motion

The Department's cross-motion for summary judgment is granted for the very same reasons that Hoyt's motion has been granted, namely, that the record establishes that like Hoyt, the Department had no prior notice of any physical assaults on Castillo by Pollard and because the alleged assault was spontaneous and unforeseeable.

The City's Cross-Motion to Dismiss

The City's cross-motion seeking dismissal of this action is hereby granted insofar as the complaint fails to state a cause of action. Significantly, in cases alleging negligence within public schools the City is not a proper party.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) all allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (Cron at 366. In opposition to such a motion a 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]). In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff 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] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated 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.

As such, a complaint must contain facts essential to give notice of a claim or defense (DiMauro v Metropolitan Suburban Bus Authority, 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. 2006); Stoianoff v Gahona, 248 AD2d 525, 526 [2d Dept 1998]). When the allegations in a complaint are vague or conclusory, dismissal for failure to state a cause of action is warranted (Schuckman Realty, Inc. v Marine [*11]Midland Bank, N.A., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk Chapter, Local No. 852, Civil Service Employees Association, Inc., 95 AD2d 800, 800 [2d Dept 1983]).

It is well settled that the City and the Department/Board of Education 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]). 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]).

Here, taking the allegations in the complaint as true, it is clear that this accident, while not occurring within PS 169, stems from the Department's custody over Castillo while in its school and then on a bus providing transportation arranged by the Department. Thus, the City is an improper party to this action. Accordingly, the complaint fails to state a cause of action against the City and the City's cross-motion seeking dismissal of the action as against the City is granted. It is hereby

ORDERED that plaintiffs' complaint be dismissed, with prejudice. It is further

ORDERED that defendants 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: August 24, 2017

Bronx, New York

_________________________

Ben Barbato, ASCJ

Footnotes

Footnote 1: This is merely the application of the well settled law on proximate causation. Significantly, it is well settled that proximate cause is an essential element to liability, and accordingly, unless both negligence and proximate causation are established, there can be no finding of liability against a defendant (Sheehan v City of New York, 40 NY2d 496, 501 [1976]; Lee v New York City Housing Authority, 25 AD3d 214, 219 [1st Dept 2005]; Lynn v Lynn, 216 AD2d 194, 195 [1st Dept 1995]). Proximate cause means the substantial cause of the events which produced the injury claimed (Derdiarian v Felix Contracting Corp., 51 NY2d 308, 314 [1980]; Lynn at 195). While in establishing proximate cause, a party is not required to eliminate every other possible cause of an accident (Bernstein v City of New York, 69 NY2d 1020, 1022 [1987]; Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]), proximate cause must nevertheless be conclusively established and cannot be based on speculation (Bernstein at 1022; Teplitskaya v 3096 Owners Corp., 289 AD2d 477, 478 [2d Dept 2001]; Smith v Wisch, 77 AD2d 619, 620 [2d Dept 1980]). The law draws a distinction between a condition that merely sets the occasion for and facilitates an accident and an act that is a proximate cause of the accident; the latter and not the former giving rise to liability (Sheehan at 503; Lee at 219). Stated differently, if a defendant's negligence is not the immediate effective cause of an accident, it cannot be said, that such negligence proximately caused the accident (Lee at 219). In Lee, for example, plaintiff was injured when, while playing ball, the ball went through a hole in a negligently maintained fence by defendant, the owner of the property and the fence surrounding it (id. at 215). Plaintiff went to fetch the ball, not through the hole but after walking around the fence and as he retrieved the ball, plaintiff was hit by a car (id. at 215). In granting summary judgment in favor of the appellant - the defendant/owner of the fence - the court concluded that even though defendant was negligent in maintaining the fence, such that it did not prevent the ball from going through a hole thereat, said negligence was not the proximate cause of the accident (id. at 219-220). Specifically, the court found that the proximate cause of plaintiff's accident was the independent intervening acts of the driver of the vehicle which struck plaintiff, such independent intervening acts breaking the causal connection between a defendant's negligence and an accident (id. at 220).