Opinion
19145/2011
07-18-2019
Robert GELTZER, AS TRUSTEE OF the ESTATE OF Debra MCLAIN and Charles McClaim, Plaintiffs, v. The CITY OF NEW YORK and the New York City Department of Education, Defendants.
Attorney for Plaintiff, Fredric M. Gold P.C., 450 Seventh Avenue, New York, NY 10123 Attorney for Respondent City of New York, Zachary W. Carter, Corporation Counsel of the City of New York, 350 Jay Street, Brooklyn, NY 11201-2908
Attorney for Plaintiff, Fredric M. Gold P.C., 450 Seventh Avenue, New York, NY 10123
Attorney for Respondent City of New York, Zachary W. Carter, Corporation Counsel of the City of New York, 350 Jay Street, Brooklyn, NY 11201-2908
Katherine A. Levine, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Plaintiff's Notice of Motion with Accompanying Affidavits and Exhibits 1
Affirmation in Opposition with Accompanying Affidavits and Exhibits 2
Further Affirmation in Opposition 3
Reply Affirmation in Support of Plaintiff's Motion to Amend the Complaint 4
Further Reply Affirmation for Plaintiff's Motion to Amend Complaint and for Discovery 5
The issue raised is whether plaintiff teacher Debra McClain ("McClain" or "plaintiff"), who was sexually assaulted by a student, may amend her complaint pursuant to CPLR § 3025(b) to include a claim that defendant NYC Department of Education ("DOE" or "defendant") owed her a special duty.
The notice of claim alleged that on June 2, 2010, McClain was sexually assaulted by a student, A.F., while teaching in the classroom and that A.F. had a history of inappropriate sexual behavior, sexual harassment and assault on the school property and that such history was known to the DOE. The original complaint included the following claims against defendants City of New York ("City") and the DOE: 1) A.F. "had a history of behavioral problems and violent, aggressive tendencies and his propensity to do harm to others was known to the defendant [DOE] and its agent, principal, Adam Buck among others;" 2) the DOE was negligent, careless and/or reckless in failing to adequately supervise and/or manage the students and were negligent in hiring, retention and training; 3) the DOE failed to develop and adopt school safety plans and/or a school violence prevention program to ensure the security and safety of school personnel; and 4) the DOE failed to follow the standards and procedures set forth in their school safety plans and/or school violence prevention program.The proposed amended claim is as follows: "That said incident and resulting damages to the plaintiff were caused solely by reason of the negligent, careless and/or reckless acts of the defendant ... in breaching the special duty they owed to the plaintiff."
Based on the relation-back doctrine, as set forth in CPLR § 203(f), this Court finds that plaintiff's proposed amended claim is barred by the statute of limitations. The relation back doctrine permits a plaintiff to interpose a claim, which otherwise would be barred by the statute of limitations, where the allegations of the original complaint gave notice of the "transactions or occurrences" to be proven and the cause of action would have been timely if asserted in the original complaint. Ortega v. New York City Tr. Auth. , 2019 NY Slip Op 01782, 2019 NY App. Div. LEXIS 1755, *3 (2d Dept. 2019) ; Martin v. City of New York , 153 AD3d 693, 694 (2nd Dep't 2017) ; Maxine v. Ashkenazi , 136 AD3d 990, 992 (2nd Dept. 2016). The "linchpin" of the relation back doctrine is that notice be given within the limitation period. Piccinich v. Forest City Tech Place Assocs. , 234 AD2d 528, 530 (2d Dept. 1996) ; Lawyer v. City of New York , 2012 NY Slip Op 33467(U), 2012 NY Misc. LEXIS 6447, *1 (Sup. Ct. Bronx Co. 2012). Defendants need not be put on notice regarding every factual allegation or legal theory upon which the amended claims are based, so long as the original complaint put them on notice of the occurrences which triggered the amended claims. O'Halloran v. Metropolitan Transp. Auth. , 154 AD3d 83, 88 (1st Dept. 2017) ; Pendleton v. City of New York , 44 AD3d 733, 736 (2nd Dept. 2007). The court must also consider whether there would be undue prejudice to the defendant if the amendment is permitted. O'Halloran, supra , 154 AD3d at 87. Prejudice may be found where the defendant would be hindered in the preparation of its case or prevented from taking some measure in support of its position. Loomis v. Civetta Corinno Constr. Corp. , 54 NY2d 18, 23 (1981).
Liability may not be imposed upon a municipality or governmental entity for the breach of a duty generally owed to school employees unless a special duty exists. Brumer v. City of New York , 132 AD3d 795, 796 (2d Dept. 2015) ; Moreno v. City of New York , 27 AD3d 536, 536 (2d Dept. 2006). The four requisite elements of a special relationship which will create such a special duty are "(1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a 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." Valdez v. City of New York , 18 NY3d 69, 80 (2011) ; Moreno, supra , 27 AD3d at 537.
This Court finds that neither the notice of claim nor original complaint gave notice of the transactions or occurrences between the parties which would give rise to a special duty. The only element of a special relationship referenced in the complaint was defendant's alleged knowledge that inaction with respect to monitoring A.F. could lead to harm, in that A.F. "had a history of behavioral problems and violent, aggressive tendencies and his propensity to do harm to others was known to the defendant and its agent, principal, Adam Buck among others." However, there is no indication in the notice of claim and original complaint that prior to the incident, the DOE: 1) either through promises or actions, assumed a duty to act on behalf of plaintiff in particular with respect to her interaction with A.F.; or 2) there was direct contact between the school and plaintiff about A.F.; or that 3) plaintiff justifiably relied on an "affirmative undertaking" by the school and its representatives.
Furthermore, it is impossible to discern a special duty from plaintiff's general claims of negligent supervision and hiring and failure to effectuate school safety plans and/or a school violence prevention program because she failed to even present the plan or program which allegedly formed the predicate for her special duty claim. See , Lang-Salgado v. Mount Sinai Med. Ctr., Inc. , 157 AD3d 532, 533-534 (1st Dept. 2018) (original complaint alleging negligence of x-ray technician on a particular date did not give notice of transactions or occurrences to be proved with respect to proposed causes of action alleging negligent hiring and supervision); Martin v. City of New York , 153 AD3d 693 (2d Dept. 2017) (allegations of original complaint, limited to claims that the plaintiff was falsely arrested and imprisoned while lawfully present at certain premises, did not give notice of transactions or occurrences to be proven with respect to the proposed cause of action for malicious prosecution); Jolly v. Russell , 203 AD2d 527, 528-529 (2d Dept. 2004) (claims of general negligence in original complaint did not give notice of claim of lack of informed consent because they were distinct causes of action requiring proof of facts not contemplated by an action based merely on negligence). Thus, the facts alleged in the original complaint failed to give notice of the facts necessary to support the amended pleading, and the relation back doctrine does not apply.
Plaintiff averred in an affidavit dated over seven years after the incident that she expressed concerns about A.F. to the school administrators prior to the incident, and that they in turn assured her that they would take measures to prevent any harm to her. However, plaintiff's belated affidavit does not satisfy the "linchpin" requirement of the relation back doctrine that notice be given within the limitations period. Since the proposed amended complaint does not relate back to the claims in the original complaint, this court denies plaintiff leave to file the proposed amended complaint. This constitutes the Decision and Order of the Court.