DiCosimo v. Onondaga-Cortland-Madison Board of Cooperative Educational Services

Appellate Division of the Supreme Court of New York

DiCosimo v. Onondaga-Cortland-Madison Board of Cooperative Educational Services

294 A.D.2d 878, 741 N.Y.S.2d 485, 2002 N.Y. App. Div. LEXIS 4492

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 3, 2002

StatusPublished

Cited by1 cases

This text of 294 A.D.2d 878 (DiCosimo v. Onondaga-Cortland-Madison Board of Cooperative Educational Services) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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DiCosimo v. Onondaga-Cortland-Madison Board of Cooperative Educational Services, 294 A.D.2d 878, 741 N.Y.S.2d 485, 2002 N.Y. App. Div. LEXIS 4492 (N.Y. Ct. App. 2002).

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Opinion

—Appeal from an order of Supreme Court, Onondaga County (McCarthy, J.), entered February 21, 2001, which, inter alia, denied the motion of defendants Onondaga-Cortland-Madison Board of Cooperative Educational Services, Stephen Garty, and John Sacket (“John” being a fictitious first name) seeking summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendants Onondaga-Cortland-Madison Board of Cooperative Educational Services, Stephen Garty and John Sacket (“John” being a fictitious first name) and dismissing the complaint against them and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedly sustained by their daughter when she was physically restrained by two employees of defendant Onondaga-Cortland-Madison Board of Cooperative Educational Services (BOCES) (collectively, defendants). Supreme Court erred in denying the motion of defendants seeking summary judgment dismissing the complaint against them. “Liability [for tort claims] may not be imposed upon BOCES, a municipal entity, ‘absent the existence of a special duty together with justifiable reliance thereon by the plaintiff[s] to [their] detriment’ ” (Firestein v Gavlyayev, 282 AD2d 430, 430, quoting Feinsilver v City of New York, 277 AD2d 199, 199). [879]*879Defendants established the absence of a special duty and plaintiffs failed to raise a triable issue of fact (cf. Wenger v Goodell, 220 AD2d 937, 938-939). In addition, defendants established that their actions were reasonable under the circumstances and plaintiffs failed to raise a triable issue of fact (cf. Gonzalez v City of New York, 286 AD2d 706, 707-708). We therefore modify the order by granting the motion of defendants and dismissing the complaint against them. Present—Green, J.P., Wisner, Scudder, Kehoe and Gorski, JJ.

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—Appeal from an order of Supreme Court, Onondaga County (McCarthy, J.), entered February 21, 2001, which, inter alia, denied the motion of defendants Onondaga-Cortland-Madison Board of Cooperative Educational Services, Stephen Garty, and John Sacket (“John” being a fictitious first name) seeking summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendants Onondaga-Cortland-Madison Board of Cooperative Educational Services, Stephen Garty and John Sacket (“John” being a fictitious first name) and dismissing the complaint against them and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedly sustained by their daughter when she was physically restrained by two employees of defendant Onondaga-Cortland-Madison Board of Cooperative Educational Services (BOCES) (collectively, defendants). Supreme Court erred in denying the motion of defendants seeking summary judgment dismissing the complaint against them. “Liability [for tort claims] may not be imposed upon BOCES, a municipal entity, ‘absent the existence of a special duty together with justifiable reliance thereon by the plaintiff[s] to [their] detriment’ ” (Firestein v Gavlyayev, 282 AD2d 430, 430, quoting Feinsilver v City of New York, 277 AD2d 199, 199). [879]*879Defendants established the absence of a special duty and plaintiffs failed to raise a triable issue of fact (cf. Wenger v Goodell, 220 AD2d 937, 938-939). In addition, defendants established that their actions were reasonable under the circumstances and plaintiffs failed to raise a triable issue of fact (cf. Gonzalez v City of New York, 286 AD2d 706, 707-708). We therefore modify the order by granting the motion of defendants and dismissing the complaint against them. Present—Green, J.P., Wisner, Scudder, Kehoe and Gorski, JJ.

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294 A.D.2d 878, 741 N.Y.S.2d 485, 2002 N.Y. App. Div. LEXIS 4492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dicosimo-v-onondaga-cortland-madison-board-of-cooperative-educational-nyappdiv-2002.

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