I.K. v. City of New York

2024 NY Slip Op 32407(U)

• Court: New York Supreme Court, New York County
• Decided: July 12, 2024
• Docket: Index No. 155161/2019
• Status: Unpublished

Opinion

I.K. v City of New York 2024 NY Slip Op 32407(U) July 12, 2024 Supreme Court, New York County Docket Number: Index No. 155161/2019 Judge: Leslie A. Stroth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 155161/2019 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/12/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LESLIE A. STROTH PART 12M Justice --------------------------·---------------------X INDEX NO. 155161/2019 I. K., MOTION DATE April 23, 2024 Plaintiff, MOTION SEQ. NO. 003 -v- THE CITY OF NEW YORK, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, SELBY BUS DECISION + ORDER ON CORP., LEESEL TRANSPORTATION CORP., BELECK VALMONT MOTION

Defendants. - - - - - - - - - - - - - - - - -----X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,60,61,62,63,64,65,66,67 were read on this motion to/for JUDGMENT-SUMMARY

This action arises from an incident that occurred on October 30, 2018 when infant

plaintiff I.K. was assaulted on a bus en route to her school, the Manhattan Children's Center 1, by

defendant Beleck Valmont (Valmont), a Department of Education matron assigned to the subject

bus, which was owned by defendant Selby Bus Corp. (Selby) and operated by defendant Leese!

Transportation Corp. (Leese!). By Order dated January 10, 2020, Judge Verna Saunders granted

plaintiffs motion for a default judgment against defendant Valmont, with liability and damages

to be decided upon an inquest (Exh C).

Defendants City of New York, Department of Education of the City of New York, Selby

Bus Corp, and Leesel Transportation Corp move here for summary judgment, pursuant to CPLR

3212, arguing, inter alia, that they are not liable for the spontaneous and unforeseeable conduct

1 Plaintiff asserts in the complaint that the Manhattan Children's Center is owned by defendants The City of New York and The Department of Education of the City of New York. 155161/2019 K., I. vs. CITY OF NEW YORK Page 1 of 7 Motion No. 003

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of Valmont, since Valmont had no prior incidences involving physical harm to others,

defendants did not receive any prior complaints from parents or students, and defendants had a

policy prohibiting any form of physical contact with students. A hearing was held for the instant

application on April 23, 2024.

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It is well-established that the "function of summary judgment is issue finding, not issue

determination" (Assaf v Ropog Cab Corp., 153 AD2d 520 (1st Dept 1989) (quoting Sillman v

Twentieth Century-Fox Film Corp., 3 NY2d 395,404 [1957])). As such, the proponent of a motion

for summary judgment must tender sufficient evidence to show the absence of any material issue

of fact and the right to entitlement to judgment as a matter oflaw (Alvarez v Prospect Hospital, 68

NY2d 320 (1986); Winegrad v New York University Medical Center, 64 NY2d 851 (1985)).

Once a party has submitted competent proof demonstrating that there is no substance to its

opponent's claims and no disputed issues of fact, the opponent, in tum, is required to "lay bare

[its] proof and come forward with some admissible proof that would require a trial of the material

questions of fact on which [its] claims rest" (Ferber v Sterndent Corp., 51 NY2d 782, 783 (1980)).

The party opposing a motion for summary judgment is entitled to all favorable inferences that can

be drawn from the evidence submitted (See Dauman Displays, Inc. v Masturzo, 168 AD2d 204

(1st Dept 1990)).

Negligence, Negligent Hiring and Retention, and Negligent Supervision and Training

"It is well-settled that to establish a claim of negligence, a plaintiff must prove: a duty

owed to the plaintiff by the defendant, a breach of that duty, and injury proximately resulting

therefrom. Where the negligence claim relates to an employer's retention and supervision of an

employee, the complaint must include allegations that: (1) the employer had actual or

constructive knowledge of the employee's propensity for the sort of behavior which caused the

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injured party's harm; (2) the employer knew or should have known that it had the ability to

control the employee and of the necessity and opportunity for exercising such control; and (3)

the employee engaged in tortious conduct on the employer's premises ... " (Moore Charitable

Found. v. PJT Partners, Inc., 40 N.Y.3d 150 (2023)).

The Court finds here that there exist issues of fact as to whether defendants breached any

duty owed to plaintiff in hiring and training Valmont. James Sarkis, executive director of

contract operations at the Department of Education, stated that "drivers and attendants are all

fingerprinted and go through background checks and training before they begin working for the

Department of Education under a transportation contract" (Exh H, p 17). However, no proof of

background checks and completed training relating to Valmont is attached to defendants'

motion.

Similarly, according to Candy Munoz, an employee of defendant Leesel, "Valmont's

background check revealed that he was what would be considered of good moral character as his

background check did not reveal any prior incidences involving violent conduct, or other

criminal behavior ... Valmont, completed and passed the requisite training courses concerning

appropriate conduct as a bus matron, which included no aggressive conduct, either physical or

verbal, when interacting with students on the bus" (Exh L, 15-6). Again, however, defendants

fail to submit any proof that the necessary background checks were indeed performed prior to

hiring Valmont, nor do they submit evidence of the matron training courses in which he

allegedly participated.

Of significance, the "The New York City Department of Education School Bus Student

Incident Report" dated October 29, 2018 (Incident Report) states "IK used to spit on the face of

the Matron Beleck Valmont. This morning she was wors[e] because she spat on the face of the

aid ... " (Exh 2). There is no indication in the moving papers as to when those prior incidents

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occurred and how they were handled by Valmont, the Department of Education and its

employees, Selby or Leese!. There is also no evidence as to whether or not defendants had any

notice ofValmont's propensity to engage in physical contact with IK during the prior occasions

referenced. The Court is unaware of Valmont' s responses to these prior occasions as there is no

testimony or other statements from the bus driver, (who notably shares Beleck Valmont's last

name and also signed the Incident Report), the individual who took the video of the subject

incident, who appears to be a Department of Education employee, Mr. Valmont, or any other

witnesses.

In addition, the affidavit of Darren Johnson, workforce manager director for the

Department of Education, provided that "Valmont had not been flagged after a background

check was performed, nor had he been flagged because of any prior incidences, or complaints,

concerning his work as a matron" (Exh K, ,-r9). However, Mr. Johnson fails to attach proof of

Valmont's background check and does not address whether Valmont had any prior complaints

regarding his performance other than as a matron, or if there were any other complaints or

investigations regarding his conduct. As with Mr. Sarkis and Ms. Munoz, Darren Johnson's

statements are conclusory and lack any detail.

The Court finds that there are genuine issues of fact pertaining to defendants' breach of

duty and that defendants have failed to demonstrate the appropriate background checks and

training performed and Valmont's lack of propensity to engage in physical contact with IK or

any other students. Thus, defendants' motion for summary judgment on plaintiffs claims for

negligence, negligent hiring and retention, and negligent supervision and training is denied.

Battery and Assault

"Under the doctrine of respondeat superior, an employer can be held vicariously liable for

the torts committed by an employee acting within the scope of the employment. Pursuant to the

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doctrine, the employer may be held liable when the employee acts negligently or intentionally, so

long as the tortious conduct is generally foreseeable and a natural incident of the employment"

(Fernandez v. Rustic Inn, Inc., 60 A.D.3d 893 (2009)). "[A]n employer will not be vicariously

liable for its employee's alleged assault where the assault was not within the scope of the

employee's duties, and there is no evidence that the assault was condoned, instigated or

authorized by the employer" (Milosevic v. O'Donnell, 89 A.D.3d 628 (1 st Dept 2011)).

"Intentional torts as well as negligent acts may fall within the scope of employment. In

either situation, the employer need not have foreseen the precise act or the exact manner of

injury as long as the general type of conduct may have been reasonably expected" (Patterson v.

Khan, 240 A.D.2d 644 (2 nd Dept 1997)).

Here, as the Court indicates above, there is a question regarding the foreseeability of

Valmont's conduct or a reasonable expectation that Valmont could be in physical contact with

plaintiff, since the Report suggests that Valmont encountered similar situations prior to the

subject incident. The affidavit of Ms. Munoz asserts that "[o]nee an Incident Report is filled out

by a matron it would be submitted to the New York Department of Education's Office of Pupil

Transportation, who would then notify the Bus Defendants regarding what next steps to take

concerning any problematic children" (Exh L, if9). It is unclear whether such a report was

previously submitted relating to Valmont's interactions with IK.

As to whether Valmont was acting within the scope of his employment, plaintiff relies on

Jaccarino v. Supermarkets Gen. Corp., 252 A.D.2d 572 (1998), where the Second Department

held that "[c]ontrary to the defendant's contentions, ,evidence indicating that it specifically

instructed its security guards to refrain from physical contact with customers does not compel the

conclusion that, as a matter of law, the security guard in question was acting beyond the scope of

his employment when he allegedly assaulted the plaintiff'.

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In the instant matter, Jose Encarnacion, a safety supervisor and examiner for Leese!

testified that matrons "have to be role models", "they cannot grab" and "hit" (Exh I, p 51-52). He

further stated that "they are not allowed to take any corrective actions" (Id at p 78). However, as

with Jaccarino, although the employee matron's were allegedly instructed as to their conduct, an

assumption cannot be made absent further proof that all matrons follow these instructions all the

time, particularly Valmont. In fact, plaintiff submitted a video recorded by a Department of

Education employee in which the person identified as Valmont is seen striking the plaintiff and

the employee recording this conduct did not intervene.

Moreover, in the statement taken by Jenna Denapoli, Director of Human Resources for

Leesel Transportation Corp, of October 31, 2018, there is a notation that "para-professional

Justin complained to Beleck that "I" continuously spits on him, and Beleck is not taking care of

it/not doing his job properly, which implies that part ofValmont's job was to control IK's

behavior. Given the unresolved issues of fact relating to his employment as well, defendants'

motion for summary judgment as to assault and battery is denied.

Loss of Services

Plaintiff failed to address loss of services in its opposition. Nonetheless, "In New York,

parents generally cannot recover for loss of consortium for their children. Although a parent may

recover for loss of a child's services upon submitting proof that the child contributed to

household income or paid a part of household expenses ... " (SM v. Madura, 223 A.D.3d 486 (1 st

Dept. 2024)). Plaintiff here has not outlined sufficient contributions on the part of the infant

plaintiff to support this cause of action. Therefore, loss of services is dismissed from the

complaint.

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Accordingly, it is hereby

ORDERED, that defendants' motion for summary judgment is denied, except that

plaintiffs claim for loss of services is dismissed.

The foregoing constitutes the decision and order of the Court.

7/12/2024 DATE

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART 0 OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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