Brumer v. City of N.Y.

• Decision Date: 21 October 2015
• Docket Number: 2014-00461, Index No. 32716/09.
• Citation: 18 N.Y.S.3d 149,132 A.D.3d 795,2015 N.Y. Slip Op. 07611
• Parties: Betty BRUMER, appellant, v. CITY OF NEW YORK, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 795

18 N.Y.S.3d 149

2015 N.Y. Slip Op. 07611

Betty BRUMER, appellant

v.CITY OF NEW YORK, et al., respondents, et al., defendant.

2014-00461, Index No. 32716/09.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 21, 2015.

Cronin & Byczek, LLP, Lake Success, N.Y. (Linda M. Cronin of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Margaret King, and Keegan K. Staker of counsel), for respondents.

L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Landicino, J.), dated July 5, 2013, which granted that branch of the motion of the defendants City of New York, New York City Department of Education, Principal Douglas Avila, and Assistant Principal Joseph Simione which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that order is affirmed, with costs.

The plaintiff, a fourth grade teacher at a public school in Brooklyn, alleges that she was injured when she was assaulted by one of her students. According to the plaintiff, the student had been restrained by a school security guard after engaging in a fight with another boy during a fire drill. Although the security guard escorted the student away from the rest of the class, the student subsequently returned to the scene and began fighting again. The plaintiff alleges that during this second episode, the student hit her, causing her to fall to the ground and sustain injuries.

The plaintiff commenced this action, inter alia, to recover damages for personal injuries. After depositions were conducted, the defendants City of New York, New York City Department of Education, Principal Douglas Avila, and Assistant Principal Joseph Simione (hereinafter collectively the school defendants) moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, contending that there was no special relationship between them and the plaintiff, and, as such, that they did not owe her a duty of care. The Supreme Court granted that branch of the school defendants' motion.

A school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge, at least in the absence of a special duty to the person injured (see Dinardo v. City of New York, 13 N.Y.3d 872, 874, 893 N.Y.S.2d 818, 921 N.E.2d 585 ; Ferguson v. City of New York, 118 A.D.3d 849, 988 N.Y.S.2d 207 ; Stinson v. Roosevelt U.F.S.D., 61 A.D.3d 847, 847–848, 877 N.Y.S.2d 400 ; Moreno v. City of New York, 27 A.D.3d 536, 536–537, 813 N.Y.S.2d 143 ). Although a school district owes a special duty to its minor students, that duty does not extend to teachers, administrators, or other adults on or off school premises (see Ferguson v. City of New York, 118 A.D.3d at 850, 988 N.Y.S.2d 207 ; Stinson v. Roosevelt U.F.S.D., 61 A.D.3d at 847–848, 877 N.Y.S.2d 400 ).

With regard to teachers, administrators, or other adults on or off school premises, a special relationship with a municipal defendant can be formed in three ways: “ ‘(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation’ ” (Thomas v. New York City Dept. of Educ., 124 A.D.3d 762, 763, 2 N.Y.S.3d 178, quoting Pelaez v. Seide, 2 N.Y.3d 186, 199–200, 778 N.Y.S.2d 111, 810 N.E.2d 393 ).

Here, as the...