MARCANO v. “John Doe # 1,” et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

Idalia MARCANO, etc., Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents, “John Doe # 1,” et al., Defendants.

Decided: May 15, 2003

SAXE, J.P., ELLERIN, WILLIAMS, LERNER, and MARLOW, JJ. Brian J. Isaac, for Plaintiff-Appellant. Tahirih M. Sadrieh, for Defendants-Respondents.

Order, Supreme Court, New York County (Michael Stallman, J.), entered August 6, 2001, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion seeking leave to amend the complaint and leave to file an amended notice of claim, unanimously affirmed, without costs.

Plaintiffs are mother and son.   The son was shot by an unknown assailant on a street corner near his high school.   He claims, without any specific detail, to have felt threatened after unknown persons assaulted friends.   His mother and sister allegedly received assurances from a dean at the high school that he would be protected.

 The motion court properly dismissed plaintiff's claim for violation of a special duty, since, inter alia, the record conclusively belies any claim that plaintiff relied to his detriment on any assurances of protection given by defendants (see Clark v. Town of Ticonderoga, 291 A.D.2d 597, 599, 737 N.Y.S.2d 412, lv. denied 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016).

 Leave to amend the complaint and notice of claim to include a claim predicated upon a theory of negligent supervision was properly denied inasmuch as it is plain that defendant Board of Education was no longer under a duty to supervise plaintiff at the time and place of the assault, i.e., subsequent to plaintiff high school student's dismissal from school and off school premises (see Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849;  Goga v. Binghamton City School Dist., 302 A.D.2d 650, 754 N.Y.S.2d 739, 741).   We also find that the denial of plaintiff's motion to file an amended notice of claim was procedurally proper.

We have reviewed plaintiff's remaining arguments and find them unavailing.