CRUZ v. Johan A. Vargas–Paulino, Defendant. (2020)

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered May 13, 2019, which, to the extent appealed from as limited by the briefs, denied defendant Simpson Street Development Association, Inc.'s (SSDA) and defendants City of New York and New York City Board/Department of Education's (collectively, the City) motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The infant was injured after he was released from an after-school program run by defendant SSDA at a City middle school in the Bronx through an exit onto Fox Street.  He and his brother and a few friends began playing a game involving chasing people and giving them bear hugs;  to avoid hugging a certain friend, the infant ran across Fox Street and was struck by a vehicle.

Defendants established that the infant had been released from the school before the accident happened, but they failed to demonstrate as a matter of law that Fox Street was a safe spot or was not a foreseeably hazardous setting (see Ernest v. Red Cr. Cent. School Dist., 93 N.Y.2d 664, 671–672, 695 N.Y.S.2d 531, 717 N.E.2d 690 [1999];  Donofrio v. Rockville Ctr. Union Free Sch. Dist., 149 A.D.3d 805, 806, 52 N.Y.S.3d 378 [2d Dept. 2017];  Diaz v. Brentwood Union Free Sch. Dist., 141 A.D.3d 556, 558, 36 N.Y.S.3d 161 [2d Dept. 2016] ).  Contrary to SSDA's contention, plaintiff is not required to establish that the allegedly hazardous situation resulted from the violation of a statute or regulation (see Ernest at 671, 695 N.Y.S.2d 531, 717 N.E.2d 690;  see also Deng v. Young, 163 A.D.3d 1469, 1470, 81 N.Y.S.3d 699 [4th Dept. 2018] ).

Defendants failed to demonstrate as a matter of law that the infant and his brother were provided with a safe alternative exit on another street.  An affidavit and documents submitted with SSDA's motion indicate that the exit had been changed to Fox Street from a street that had signs, a lower speed limit, and speed bumps, and that the infant was escorted to the Fox Street exit by SSDA personnel.  The statements contained in an affidavit by one of SSDA's employees, that the City alone was responsible for changing the exits, is, on this record, conclusory (see Sirico v. F.G.G. Prods., Inc., 71 A.D.3d 429, 434, 896 N.Y.S.2d 61 [1st Dept. 2010] ).

Defendants failed to demonstrate as a matter of law that the infant's own actions in entering the street were the sole proximate cause of the accident (see generally Hain v. Jamison, 28 N.Y.3d 524, 530, 46 N.Y.S.3d 502, 68 N.E.3d 1233 [2016] ).  One of the factors relevant in assessing cause is the spacial and temporal proximity between the alleged negligent act and the accident (id.).  In addition, the use of multiple different safety measures at the other exit location is evidence that the type of accident that occurred in this case was foreseeable (see id.;  Ernest, 93 N.Y.2d at 672, 695 N.Y.S.2d 531, 717 N.E.2d 690;  see also Mamadou S. v. Feliciano, 123 A.D.3d 610, 999 N.Y.S.2d 65 [1st Dept. 2014] ).

The court providently exercised its discretion in denying the motions in part because they were premature, having been filed while defendants' depositions and other discovery remained outstanding (see generally Global Mins. & Metals Corp. v. Holme, 35 A.D.3d 93, 102–103, 824 N.Y.S.2d 210 [1st Dept. 2006], lv denied 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007];  see also Brewster v. Skiba, 22 A.D.3d 426, 426, 805 N.Y.S.2d 4 [1st Dept. 2005] ).