The opinion of the court was delivered by: DENISE COTE
DENISE COTE, District Judge:
Plaintiff Eduvigis A. Genao ("Genao") is a New York City school teacher who was assaulted by intruders while teaching in her classroom. Genao brings this negligence action under the Court's diversity jurisdiction seeking damages in excess of $ 50,000 from defendant Board of Education of the City of New York (the "Board"). Before this Court is the Board's motion for summary judgment. For the reasons given below, defendant's motion is granted.
For the purposes of this motion, the following facts are undisputed. On December 22, 1992, Genao was assaulted while teaching at P.S. 194, located at 242 West 144th Street in Manhattan. During school hours, four adult intruders, three females and one male, appeared at the door of her classroom and threatened Genao. Accusing her of having physically abused a student on the previous day, one of the female intruders assaulted plaintiff with a metal chair. Genao called for help, and, several minutes later, the school's principal, Mr. Cunningham, arrived and broke up the altercation. Soon after the principal's arrival, the sole school security guard, whose usual post was by the school's front entrance on 144th Street, also arrived at the classroom. As a result of the attack, Genao suffered injuries to her back.
At the time of the incident, P.S. 194 had two doors to the outside. The main entrance faced 144th Street, and the back entrance faced 143rd Street. The sole security guard was posted in the lobby by the main entrance. As a matter of practice, however, the guard did not question persons entering P.S. 194. Genao's classroom, located on the second-floor, was not provided with any communication device that would link her classroom with other parts of the building.
When Genao was assaulted, she was working pursuant to the 1991-95 collective bargaining agreement (the "Contract") between the teacher's union and the Board. Sections A, B, and G of Article Ten (collectively, the "Security Provision") of the Contract concern security in schools. Section A of the Security Provision, titled "Assistance in Assault Cases," deals exclusively with post-assault procedures, including the principal's duty to assist in the investigation of assaults on teachers. Section B, titled "School Safety Plan", charges the principal with the duty of "maintaining security and safety in the school" by means of devising a "comprehensive safety plan." Under Section B, a teacher may protest "a violation of the plan as to him". Section G, titled "Identification Cards", describes an experimental program requiring staff and students in several high schools to use identification cards in order to determine the value of the cards as a device for maintaining security in the school. There is no indication, from the Contract or either party, whether P.S. 194 was selected for participation in this program.
In 1988, when Genao began teaching at P.S. 194, Cunningham told her, "Don't worry. You are in a good school." Aside from the Contract, this is the only statement or promise Genao points to with respect to security at P.S. 194.
Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. "The judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court shall conduct
the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.
Id. at 250. When deciding a motion for summary judgment, a court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Casualty Co. of Reading, PA v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994).
Genao claims that the Board's negligent actions in
permitting unauthorized persons to enter the plaintiff's classroom at P.S. 194; in failing to have sufficient personnel; in failing to have proper security; in failing to monitor and control persons entering the school; in failing to provide the plaintiff with a safe place to work; in causing and creating a dangerous condition; in assuring the plaintiff of security and failing to provide it; in causing and/or permitting the plaintiff to be assaulted with a metal chair and garbage can; [and] in breaching its contract with the Teachers Association in which the plaintiff was a direct and intended beneficiary . . ..
Complaint at 3. In its motion for summary judgment, the Board asserts that it cannot be liable to Genao because it had no actionable duty to protect Genao from the attack. In opposition, Genao asserts that summary judgment should be denied because: 1) the Board has refused to provide plaintiff with any discovery; 2) the Board breached its proprietary duty as a landlord; or 3) the Board undertook and breached a special duty to protect plaintiff.
When the opponent of a motion for summary judgment seeks discovery, she must file an affidavit pursuant to Rule ...