IVAN v. The City of New York, Defendant–Appellant. (2018)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about August 9, 2017, which denied the motion of defendant City of New York for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

The City's motion should have been granted in this action where infant plaintiffs Mariah A.D. and Ivan D. were on their way to school and walking within the crosswalk when Ivan was struck by a school bus owned by defendant Little Richie Bus Service Inc. and operated by defendant Evelyn Rivera.  Although the City had assigned a school crossing guard to assist children such as infant plaintiffs to cross the intersection, the person who was ordinarily assigned to the intersection called out sick that morning.

In order to establish that the City voluntarily assumed a duty, plaintiffs have the burden of showing:  (1) an assumption by the City's agents, through promises or action, of an affirmative duty to act on behalf of plaintiffs;  (2) knowledge on the part of the City's agents that inaction could lead to harm;  (3) some form of direct contact between the City's agents and plaintiffs;  and (4) justifiable reliance by plaintiffs (see Valdez v. City of New York, 18 N.Y.3d 69, 80, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011];  Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987] ).  Here, the record shows that no special duty existed between the City and plaintiffs before the accident.  There was no direct contact between the City's agents and plaintiffs, and the facts that the school crossing guard greeted infant plaintiffs and the children relied upon the crossing guard's instructions when the guard was at the intersection before the accident is insufficient to create a special duty.