Puello v. City of New York

Appellate Division of the Supreme Court of New York

Puello v. City of New York

118 A.D.3d 492, 987 N.Y.S.2d 141

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

DecidedJune 10, 2014

StatusPublished

This text of 118 A.D.3d 492 (Puello 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

Puello v. City of New York, 118 A.D.3d 492, 987 N.Y.S.2d 141 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme, Court, Bronx County (Larry S. Schachner, J.), entered on or about November 7, 2012, which granted defendants’ motion to renew its prior motion to dismiss the complaint, and upon renewal, granted the motion, unanimously affirmed, without costs.

In this action arising out of the murder of plaintiffs’ decedent by a former boyfriend, the court properly granted renewal pursuant to CPLR 2221 (e) (2), based on the Court of Appeals decision in Valdez v City of New York (18 NY3d 69 [2011]), which provided a clarification of the decisional law (see Roundabout Theatre Co. v Tishman Realty & Constr. Co., 302 AD2d 272 [1st Dept 2003]). Upon renewal, dismissal of the complaint was proper, since plaintiff failed to allege or provide the factual predicate for the special relationship theory in his notice of claim and complaint (see Blackstock v Board of Educ. of the City of N.Y., 84 AD3d 524 [1st Dept 2011]). Further, the record establishes that plaintiff cannot prove all of the necessary elements of that theory (see Valdez, 18 NY3d at 80-81; Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

Concur—Tom, J.E, Friedman, Renwick, Gische and Clark, JJ.

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Order, Supreme, Court, Bronx County (Larry S. Schachner, J.), entered on or about November 7, 2012, which granted defendants’ motion to renew its prior motion to dismiss the complaint, and upon renewal, granted the motion, unanimously affirmed, without costs.

In this action arising out of the murder of plaintiffs’ decedent by a former boyfriend, the court properly granted renewal pursuant to CPLR 2221 (e) (2), based on the Court of Appeals decision in Valdez v City of New York (18 NY3d 69 [2011]), which provided a clarification of the decisional law (see Roundabout Theatre Co. v Tishman Realty & Constr. Co., 302 AD2d 272 [1st Dept 2003]). Upon renewal, dismissal of the complaint was proper, since plaintiff failed to allege or provide the factual predicate for the special relationship theory in his notice of claim and complaint (see Blackstock v Board of Educ. of the City of N.Y., 84 AD3d 524 [1st Dept 2011]). Further, the record establishes that plaintiff cannot prove all of the necessary elements of that theory (see Valdez, 18 NY3d at 80-81; Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

Concur—Tom, J.E, Friedman, Renwick, Gische and Clark, JJ.

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Bluebook (online)

118 A.D.3d 492, 987 N.Y.S.2d 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/puello-v-city-of-new-york-nyappdiv-2014.

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