Dinardo v. City of New York

• Decision Date: 01 December 2009
• Docket Number: No. 156,156
• Parties: ZELINDA ANTOINETTE DINARDO, Respondent, v. CITY OF NEW YORK, Defendant, and BOARD OF EDUCATION OF THE CITY OF NEW YORK, Appellant.
• Court: New York Court of Appeals Court of Appeals

13 N.Y.3d 872

2009 NY Slip Op 8853

921 N.E.2d 585

893 N.Y.S.2d 818

ZELINDA ANTOINETTE DINARDO, Respondent, v. CITY OF NEW YORK, Defendant, and BOARD OF EDUCATION OF THE CITY OF NEW YORK, Appellant.

No. 156

Court of Appeals of New York.

Argued October 15, 2009.

Decided December 1, 2009.

Michael A. Cardozo, Corporation Counsel, New York City (Marta Ross and Edward F.X. Hart of counsel), for appellant.

Clark, Gagliardi & Miller, P.C., White Plains (Henry G. Miller and John S. Rand of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Plaintiff Zelinda Dinardo, a special education teacher at a New York City public school, was injured when she tried to restrain one student from attacking another. The student had been verbally and physically aggressive for several months, and plaintiff had repeatedly expressed concerns to her supervisors about her safety in the classroom. The school's supervisor of special education and the principal had both told her that "things were being worked on, things were happening" and urged her to "hang in there because something was being done" to have the student removed. Following her injury, plaintiff commenced this action alleging, among other things, that by these assurances the Board of Education of the City of New York had assumed an affirmative duty to take action with respect to the removal of the student and that she justifiably relied upon those assurances. When the student was not removed in a timely fashion, plaintiff alleges, the altercation which led to her injury resulted.

At trial, at the close of plaintiff's proof, the Board of Education moved for judgment as a matter of law pursuant to CPLR 4401. Following a jury verdict in Dinardo's favor, the Board of Education moved to set aside the verdict under CPLR 4404 (a). Supreme Court denied both motions. The Appellate Division affirmed the trial court's judgment awarding Dinardo damages. Two Justices dissented on a question of law, and the Board of Education appeals as of right under CPLR 5601 (a).

The Board of Education now argues that the conduct alleged to have constituted a promise to act on her behalf was discretionary government action, which cannot be a basis for liability (see McLean v City of New York, 12 NY3d 194, 202-203 [2009]; Tango v Tulevech, 61 NY2d 34, 40-41 [1983]). We have no occasion to decide that question because, even assuming the school officials' actions in this case were ministerial, there is no rational process by which a jury could have found liability.

In negligence cases premised on a special relationship between municipality and plaintiff,

"the injured party's reliance is as critical ... as is the municipality's voluntary affirmative undertaking of a duty to act.... Indeed, at the heart of most of these `special duty' cases is the unfairness that the courts have perceived in precluding recovery when a municipality's voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [her] either to relax [her] own vigilance or to forego other available avenues of protection" (Cuffy v City of New York, 69 NY2d 255, 261 [1987]).

The assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff.

Affording Dinardo every inference that may properly be drawn from the evidence presented and considering the evidence in a light most favorable to her (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), we conclude that there is no rational process by which the jury could have reached a finding that plaintiff justifiably relied on assurances by the Board of Education. The vaguely worded statements by Dinardo's supervisor and principal that "something" was being done to have the student removed, without any indication of when, or if, such relief would come, do not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance. Indeed, plaintiff was aware that the administrative process for determining whether a student should transfer to a different program or school could take up to 60 days and was still ongoing when the incident occurred. There was therefore no "special relationship" between the Board of Education and plaintiff (see Cuffy, 69 NY2d at 259), upon which a cause of action for negligence could be based, and the Board of Education is entitled to judgment as a matter of law.

Chief Judge LIPPMAN. (concurring).

I disagree with the majority's conclusion that a rational jury could not have found that a special relationship existed between plaintiff and defendant Board. For several months prior to the incident giving rise to this action, the student exhibited increasing behavioral problems, including bringing a knife to school, which resulted in a week's suspension. Concerned about the student's behavior and the classroom safety risks it presented, plaintiff and her supervisor submitted to the Board's Committee on Special Education a written recommendation to remove the student from plaintiff's classroom and place him in a learning environment better equipped to his highly problematic conduct. The recommendation was supported by notes that plaintiff had kept regarding the student's behavior. These notes disclose that the subject student frequently punched, kicked and threw various items at his classmates. He also threatened to kill plaintiff, another teacher, and his fellow classmates on numerous occasions.

While the transfer request was pending, plaintiff repeatedly told her supervisors that she was concerned about the safety of her classroom and "didn't know how much longer [she could] hang in there." She testified, "it was getting more and more impossible to conduct the class ... I wanted to quit. I couldn't go on anymore ... It was getting unsafe, and I was concerned about safety in the classroom, and ... I did not want to return." In response, her supervisors told her to "hang in there" because "something was being done" and "things were happening."

Viewing the evidence, as we must at this juncture, in the light most favorable to plaintiff (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), I think the jury could have rationally concluded that a special relationship existed between the plaintiff and defendant Board. Although the transfer request was still outstanding when plaintiff was injured, the supervisors' repeated assurances that "things were happening" and "something was being done" suggested an impending solution to the dangerous situation. It would not be unreasonable for the jury to infer that plaintiff, in justifiable reliance on these assurances, chose to remain in the classroom and continue teaching rather than quitting as she had threatened. It should be stressed that the stark choice facing plaintiff was whether she should resign and abandon her class or continue to teach in a situation which was by any reasonable measure dangerous. In electing to follow the latter, socially desirable course, plaintiff relied upon the municipality's assurances that the situation would soon be rectified. Indeed, the evidence, properly viewed, practically compels the conclusion that the assurances made to plaintiff induced her to "relax [her] own vigilance or ... forego other available avenues of protection" (Cuffy v City of New York, 69 NY2d 255, 261 [1987]), and thus sufficed to establish the special relationship upon which recovery is conditioned.

Nevertheless, I concur in the majority's result on constraint of McLean v City of New York (12 NY3d 194 [2009]). In McLean, this Court held that government action, if discretionary, may never form the basis for tort liability, even if a special relationship exists...