Dinardo v. City of New York

OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Plaintiff Zelinda Dinardo, a special education teacher at a New York City public school, was injured when she tried to restrain one student from attacking another. The student had been verbally and physically aggressive for several months, and plaintiff had repeatedly expressed concerns to her supervisors about her safety in the classroom. The school’s supervisor of special education and the principal had both told her that “things were being worked on, things were happening” and urged her to “hang in there because something was being done” to have the student removed. Following her injury, plaintiff commenced this action alleging, among other things, that by these assurances the Board of Education of the City of New York had assumed an affirmative duty to take action with respect to the removal of the student and that she justifiably relied upon those assurances. When the student was not removed in a timely fashion, plaintiff alleges, the altercation which led to her injury resulted.

At trial, at the close of plaintiffs proof, the Board of Education moved for judgment as a matter of law pursuant to CPLR 4401. Following a jury verdict in Dinardo’s favor, the Board of Education moved to set aside the verdict under CPLR 4404 (a). *874Supreme Court denied both motions. The Appellate Division affirmed the trial court’s judgment awarding Dinardo damages. Two Justices dissented on a question of law, and the Board of Education appeals as of right under CPLR 5601 (a).

The Board of Education now argues that the conduct alleged to have constituted a promise to act on her behalf was discretionary government action, which cannot be a basis for liability (see McLean v City of New York, 12 NY3d 194, 202-203 [2009]; Tango v Tulevech, 61 NY2d 34, 40-41 [1983]). We have no occasion to decide that question because, even assuming the school officials’ actions in this case were ministerial, there is no rational process by which a jury could have found liability.

In negligence cases premised on a special relationship between municipality and plaintiff,

“the injured party’s reliance is as critical ... as is the municipality’s voluntary affirmative undertaking of a duty to act. . . . Indeed, at the heart of most of these ‘special duty’ cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [her] either to relax [her] own vigilance or to forego other available avenues of protection” (Cuffy v City of New York, 69 NY2d 255, 261 [1987]).

The assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff.

Affording Dinardo every inference that may properly be drawn from the evidence presented and considering the evidence in a light most favorable to her {see Szczerbiak v Pilot, 90 NY2d 553, 556 [1997]), we conclude that there is no rational process by which the jury could have reached a finding that plaintiff justifiably relied on assurances by the Board of Education. The vaguely worded statements by Dinardo’s supervisor and principal that “something” was being done to have the student removed, without any indication of when, or if, such relief would come, do not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance. Indeed, plaintiff was aware that the administrative process for determining whether a student should transfer to a different program or school could take up to 60 days and was still ongoing when the incident occurred. There was therefore no “special relationship” between *875the Board of Education and plaintiff (see Cuffy, 69 NY2d at 259), upon which a cause of action for negligence could be based, and the Board of Education is entitled to judgment as a matter of law.