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Zimmerman v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 1, 2010

APRIL ZIMMERMAN, ET AL., PLAINTIFFS-RESPONDENTS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered on or about November 5, 2008, which granted plaintiffs' post-trial motion to set aside a jury verdict as to damages, and denied defendants' cross motion to set aside the verdict as to liability and damages, unanimously reversed, on the law, without costs, the cross motion granted, and the complaint dismissed. The clerk is directed to enter judgment accordingly.

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.

Mazzarelli, J.P., McGuire, DeGrasse, Freedman, Richter, JJ.

18563/02

In this action for personal injury sustained by a school psychologist during an altercation between two students, plaintiffs failed to allege or prove the existence of a special relationship that would establish an affirmative duty on defendants' part toward the injured party (see Cuffy v New York, 69 NY2d 255, 260-261 [1987]). There was no evidence that the Board of Education had undertaken any specific security measures for plaintiff Zimmerman's exclusive benefit beyond the general security for which it was responsible (see Vitale v City of New York, 60 NY2d 861 [1983]), or that Zimmerman justifiably relied on any security measures or other assurances so as to lull her into a false sense of security or a belief that such measures were specifically intended for her exclusive benefit (see Buder v City of New York, 43 AD3d 720 [2007]; see also Dinardo v City of New York, 13 NY3d 872 [2009]).

Plaintiffs demonstrated no direct contact with agents of the Board of Education regarding such security measures or the incident leading to her injuries that might have created such a special relationship (see e.g. Laratro v City of New York, 8 NY3d 79 [2006]). Nor did she demonstrate that any such contacts in general might have alerted the Board to the need for enhanced protection under the circumstances (see e.g. Euell v Incorporated Vil. of Hempstead, 57 AD3d 837 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100601

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