Opinion
7010/09
02-27-2012
Devin Moreno, an infant, by his father and natural guardian RAUL MORENO, and RAUL MORENO, individually, Plaintiff, v. Sports Leisure and Entertainment RPG, PERUVIAN 2000 SOCCER LEAGUE, LIGA CONTINENTAL, THE NEW YORK CITY DEPARTMENT OF EDUCATION AND THE CITY OF NEW YORK, Defendant.
Plaintiff Attorney: Pena & Kahn, PLLC Defendant Attorney: Michael Cardozo Corporation Counsel of the City of New York BY: Susanna A. Roif, Esq.
Plaintiff Attorney:
Pena & Kahn, PLLC
Defendant Attorney:
Michael Cardozo
Corporation Counsel of the City of New York
BY: Susanna A. Roif, Esq.
, J.
Defendants, the City of New York (hereinafter "City") and the Board of Education of the City of New York s/h/a New York City Department of Education (hereinafter "BOE"), move for summary judgment, dismissing plaintiff's complaint and all cross-claims asserted against them. Plaintiffs, Devin Moreno and Raul Moreno, separately move for a default judgment against defendants Juan Fernando Merma a/k/a Fernando Merma, the BOE, and the City. Plaintiffs also cross-move to compel discovery from the City and the BOE.
This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff Devin Moreno, on Sunday June 6, 2008, as a result of being assaulted while participating in a soccer game at P.S. 214, located at 31-15 140th Street, in the County of Queens, City and State of New York. Plaintiffs admit in their cross-motion that the soccer game was organized by defendant Liga Continental (hereinafter "Liga').
Plaintiffs served their initial summons and complaint on the City and the BOE on March 20, 2009. The City and the BOE timely answered plaintiff's initial summons and Complaint. Plaintiffs served a supplemental summons and complaint on June 25, 2010. The City did not respond to the supplemental summons and complaint until February 14, 2011. Although plaintiffs' attorney claims the answer was not received, that mere denial is insufficient to rebut the presumption of proper services established by the City and BOE's submission of an affidavit of service (See US Consults v. APG, Inc., 82 AD3d 753 [2d Dept. 2011]; Valiotis v. Psaroudis, 78 AD3d 683, 684 [2d Dept. 2010]).
The amended summons and complaint did not add any new allegations against the City or the BOE. As such, plaintiffs' claims that they were prejudiced by the City and the BOE's late service of an answer are wholly without merit. In light of this, a default judgment against those defendants is not warranted (see, e.g., Performance Constr. Corp. v. Huntington Bldg., LLC, 68 AD3d 737, 738 [2d Dept. 2009]; Klughaupt v. Hi-Tower Contrs., Inc., 64 AD3d 545, 546 [2d Dept. 2009]) and the Court may properly consider their motion for summary judgment.
As an initial matter, it is well established that the City and the BOE are separate legal entities and the City cannot be held liable for the torts committed by the BOE and its employees (See Allende v. City of New York, 69 AD3d 931, 932 [2d Dept. 2010]; Perez v. City of New York, 41 AD3d 378, 379 [1st Dept. 2007]). Since the City is not a proper party to the this action, the Complaint must be dismissed as asserted against it.
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).
"The provision of security against physical attacks by third parties is a governmental function and no liability arises from the performance of such a function absent a special duty of protection" (Jerideau v. Huntington Union Free Sch. Dist., 21 AD3d 992, 992-93 [2d Dept. 2005] [internal citations omitted]). Contrary to the BOE's contention, plaintiffs are not required to plead or allege a special duty for their claims of negligent supervision (See, e.g., Miccio v. Bay Shore Union Free Sch. Dist., 289 AD2d 542, 543 [2d Dept. 2001]).
The BOE has established its entitlement to judgment on plaintiffs' claims of inadequate security and protection because plaintiffs failed to plead a special duty between the BOE and the infant plaintiff (See P.T. v. Children's Vill., 16 AD3d 645, 646 [2d Dept. 2005]). Although plaintiffs are correct that their complaint could be amended pursuant to CPLR § 3025, plaintiffs have failed to make any application for such relief.
Moreover, contrary to plaintiff's contention further discovery on this issue is not warranted. To prove that it was owed a special duty of protection by virtue of a special relationship, a plaintiff must establish "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v. City fo New York, 69 NY2d 255, 260 [1987]).
Plaintiffs' contend that further discovery may allow them to establish that the BOE undertook an affirmative duty to act. Since plaintiffs do not know whether such a duty was undertaken, they will be unable to establish the element of justifiable reliance. In addition, the infant plaintiff's deposition testimony establishes that there was never any direct contact between the infant plaintiff and the BOE. As such, plaintiffs will be unable to establish the existence of a special duty regardless of what the information that may be contained in the alleged outstanding discovery.
The BOE has also established that it is entitled to dismissal of plaintiffs' negligent supervision claims because it did not owe a duty of supervision. Plaintiffs admit that the infant was injured during off-school hours at privately organized event at a school he did not attend. Under such circumstances the BOE did not owe any duty of care to the student (See Ramo v. Serrano, 301 AD2d 640, 641 [2d Dept. 2003]; Phillipe v. City of New York Bd. of Educ., 254 AD2d 339, 340 [2d Dept. 1998]).
Plaintiffs have failed to raise a triable issue of fact and the assertion that further discovery is necessary is speculative.
It is well settled that "mere conclusion, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). "A shadowy semblance of an issue or bald conclusory allegations, even if believable, are insufficient to defeat a motion for summary judgment" (Polanco v. City of New York, 244 AD2d 322 [2d Dept. 1997]; see also Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]; Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; Blankman v. Incorporated Village of Sands Point, 249 AD2d 349, 350 [2d Dept. 1998]; Colonial Commercial Corp. v. Breskel Assocs., 238 AD2d 539 [2d Dept. 1997]; Aaron Pitter & Co. v. Segal, 173 AD2d 159, 160 [1st Dept. 1991]).
Accordingly, plaintiff's motion is granted only to the extent that a default judgment is granted, without opposition, against defendant Juan Fernando Merma a/k/a Fernando Merma only.
Defendant's motion for summary judgment is granted in its entirety.
Finally, plaintiff's cross-motion to compel discovery is denied.
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J.S.C.