Nurse v. New York City Dept. of Educ.

Nurse v New York City Dept. of Educ. (2021 NY Slip Op 00263) Nurse v New York City Dept. of Educ. 2021 NY Slip Op 00263 Decided on January 19, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: January 19, 2021 Before: Webber, J.P., Mazzarelli, González, Scarpulla, Shulman, JJ. Index No. 153317/12 Appeal No. 12884 Case No. 2018-5362 [*1]Anita Nurse, Plaintiff-Appellant, v New York City Department of Education, Defendant-Respondent. David Zevin, Roslyn, for appellant. James E. Johnson, Corporation Counsel, New York (Daniel Matza-Brown of counsel), for respondent. Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered October 3, 2018, which granted defendant's (DOE) motion to dismiss the complaint pursuant to CPLR 3211(a)(7) or for summary judgment, unanimously affirmed, without costs. Plaintiff, a school safety agent employed by the police department, was injured on the job when two 13-year-old students assaulted her, allegedly as a result of school administrators negligently permitting a student known to be violent to attend the school where plaintiff worked. Plaintiff's failure to plead or prove that DOE owed her a special duty is fatal to both her common-law negligence claim (see Zimmerman v City of New York, 74 AD3d 439 [1st Dept 2010], lv denied 16 NY3d 707 [2011]) and her claim under General Obligations Law § 11-106, even assuming the statute permitted plaintiff to sue DOE for negligence, which we do not decide (see e.g. Rollins v New York City Bd. of Educ., 68 AD3d 540 [1st Dept 2009]; see also Ricketts v State of New York, 163 AD3d 436 [1st Dept 2018]). We have considered plaintiff's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: January 19, 2021