Marcano v. City of New York

Appellate Division of the Supreme Court of New York

Marcano v. City of New York

305 A.D.2d 223, 762 N.Y.S.2d 28, 2003 N.Y. App. Div. LEXIS 5544

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

DecidedMay 15, 2003

StatusPublished

Cited by2 cases

This text of 305 A.D.2d 223 (Marcano v. City of New York) 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.

Bluebook

Marcano v. City of New York, 305 A.D.2d 223, 762 N.Y.S.2d 28, 2003 N.Y. App. Div. LEXIS 5544 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, New York County (Michael Stallman, J.), entered August 6, 2001, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion seeking leave to amend the complaint and leave to file an amended notice of claim, unanimously affirmed, without costs.

Plaintiffs are mother and son. The son was shot by an unknown assailant on a street comer near his high school. He claims, without any specific detail, to have felt threatened after unknown persons assaulted Mends. His mother and sister allegedly received assurances from a dean at the high school that he would be protected.

The motion court properly dismissed plaintiff’s claim for violation of a special duty, since, inter alia, the record conclusively belies any claim that plaintiff relied to his detriment on any assurances of protection given by defendants (see Clark v Town of Ticonderoga, 291 AD2d 597, 599 [2002], lv denied 98 NY2d 604 [2002]).

Leave to amend the complaint and notice of claim to include a claim predicated upon a theory of negligent supervision was properly denied inasmuch as it is plain that defendant Board of Education was no longer under a duty to supervise plaintiff at the time and place of the assault, i.e., subsequent to plaintiff high school student’s dismissal from school and off school premises (see Pratt v Robinson, 39 NY2d 554, 560 [1976]; Goga v Binghamton City School Dist., 302 AD2d 650, 651 [2003]). We also find that the denial of plaintiff’s motion to file an amended notice of claim was procedurally proper.

We have reviewed plaintiff’s remaining arguments and find them unavailing. Concur — Saxe, J.P., Ellerin, Williams, Lerner and Marlow, JJ.

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Order, Supreme Court, New York County (Michael Stallman, J.), entered August 6, 2001, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion seeking leave to amend the complaint and leave to file an amended notice of claim, unanimously affirmed, without costs.

Plaintiffs are mother and son. The son was shot by an unknown assailant on a street comer near his high school. He claims, without any specific detail, to have felt threatened after unknown persons assaulted Mends. His mother and sister allegedly received assurances from a dean at the high school that he would be protected.

The motion court properly dismissed plaintiff’s claim for violation of a special duty, since, inter alia, the record conclusively belies any claim that plaintiff relied to his detriment on any assurances of protection given by defendants (see Clark v Town of Ticonderoga, 291 AD2d 597, 599 [2002], lv denied 98 NY2d 604 [2002]).

Leave to amend the complaint and notice of claim to include a claim predicated upon a theory of negligent supervision was properly denied inasmuch as it is plain that defendant Board of Education was no longer under a duty to supervise plaintiff at the time and place of the assault, i.e., subsequent to plaintiff high school student’s dismissal from school and off school premises (see Pratt v Robinson, 39 NY2d 554, 560 [1976]; Goga v Binghamton City School Dist., 302 AD2d 650, 651 [2003]). We also find that the denial of plaintiff’s motion to file an amended notice of claim was procedurally proper.

We have reviewed plaintiff’s remaining arguments and find them unavailing. Concur — Saxe, J.P., Ellerin, Williams, Lerner and Marlow, JJ.

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Bluebook (online)

305 A.D.2d 223, 762 N.Y.S.2d 28, 2003 N.Y. App. Div. LEXIS 5544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcano-v-city-of-new-york-nyappdiv-2003.

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