Daniels v. The City of New York

1:04-cv-07612 | S.D.N.Y. | Jul 12, 2007



+ 1'- .- Y .. , -- JEAN DANIEI,S. 04-CV-76 1 2 (CM) -against- THE C'ITI- O F NEW YORK. DECISIOIL' AN[) OIIDER GRANTING DEFENI):ZNT9S MOTION FOR SUM-MARY JUDGMEN'I' McMahon, J.: I'laintiSSJe~n D a ~ ~ i c l s brings this diversity action against defendant City oi'New York (-'ihc C.'irq "1, seeking danlagcs for injuries sustained u hen plaintiff was assaulted by an intruder in hct. cliissruom at Christopher Columbus High School. Plaintiff alleges three separate carlscs o t' action: I 'I thc I'ity acted negligently in ils proprietary rolc as landlord of 111e high school, 2) the City brcachcd its special duty to protect Ms. Danicls from harm, and 3 ) the Cit! breached its conlract with t hc L111itcd Federation 01' Teachers ("l!l: I'") b?, failing to properly ir~lplenlent a school safct! plan. Hcforc this court is the City's motiun for summary judgmenl on all thrcc

For tlie reasons stated b c l o ~ , . d ~ k n d m ~ t Cily of'Ncw York's motiun Sor sumnut\ judgmcnt is granted. 1. Background Llnlcss olherwise indicated, the following facls an utldisputed. A. C'll risropll er Colunz b us High Sclr on1 Hires Ms. Daniels I n 2003, Ms. Daniels responded ~o the wi Jc-scale recruitment cl'fi~rts of the hlayor o f Nt.w York and the Yeti. 1'ol.k C'ity School Chancellor, and applied for a teaching pusition in a New York piiblic school. i.4flidavit of Sean Daniels (*LIlanicls Ai'i:'') a1 7 -3.) Sdmetime prior to Seplernber 2003. Christopher Columbus 1 iigh School in thc Bronx, contacted hls. Daniels for an intcrvicw.

When Ms. Ilaniels '-1irs1 ; ~ p ~ x a r [ c d ] at the school." she "irrlrnediately becamr: aware o f t h e the school building" (id. at 1 J), including metal cieteclion numerous sucurity measurcs tl~rc~ugho~it and scanning dC\ iccs' at thc school entrances, vidco surveillance, New York Police Deparlment ("NYPII") ofticers palrolling the scl~onl, au1o1-11atic duor locks, and c.l;~ssroom security tclcphnncli. (Id.; see also Frank tiianlo Jan. 5,2006 Dep. Tr. ("Gismo Dep. 'Tr."). allached 3s tlx. F to Declaratioil of Cynthia C;r)ldmdn ("Goldman Dccl."): at 53:7-2 1 ; Tarnmq Brunson May 5 , 2006 Uep. Tr. (+'Brunsoi~ Tkp. 'l-r." J. attached as Ex. G lo Goldman Ilccl., at 38: 1 3- 1 6; 40: 1 0; I ,isa Fucntes ;lug. 3 1. 2006 Dzp. Tr. (-'Fucntes Ilep. 'l'r."). atlached as Ex. C to PI. Opp. Br.. :it 26: 13- 25; 2812-9.) Because of thcsc rncasurcs. M s . 1)aniels "tnaintained some rcal apprehension ilbuut [he C hristol~her Columbus 1 ligh School." (Diiniels Aff, at 11 5.)

Dcspirc hcr apprehension, hls. Daniels met first with thc principal ui'Christopher ' .4t thc time uf the assault. not a11 Ncw I-ork City public: schc)uls tvere "scanning"

schuols. (Br~rnson Dcp. l r . at 74: 13- 16.) Hoitevei-. schools that contained scanning dcviccs Ivcrc 0ls(7 requircd to have N k'k'll uf'ficcrs cnnductirrg on-site patrols. (Brunson Ilcp. 'l'r. at 7418-


Columbus, Lisa Fuentcs. '41 that interview, Ms. Fuentes "dcscri bed . . . a physical education te;lc'her position that was availiitde . . . . My recollccticjn was they primarily j i l s t described the school, and then I had an intcniew with 111c assistant priricipal [Janet Ga!iat.do]." (Jean Danicls Sept. 10. 2005 Llep. Tr. ("Ilanicls Ucp. TI.." 1, attachcd as Ex. 1': to Cioldman Decl., at 1 6: 1 1 - 18.) Accnr~ling tu her deposition lesri~riony, Ms. Daniels and Ms. Gallardo,

I3asicall) just Jiscuss[cd] my prior einployrncnt . . . and what rn) rxperiencc has bccn rclalcd io the tcaching, and descri bcd cldsxs - what classes would bc like. and uhtit thc students n o u l d be llkc working in thc Bronx, and 111) kccn interesl in corning back inlo l l ~ c tcaching licld . . . . Scparate and apart from that. othcr than rtle usual cmplo> n~ent. ).oil know, interview. I can't rcnlember thc specifics ol'any c)ther specifics ol'tlic intcniew.

(Id, at 16:21- 17:6.1 h.lorcovcr, according lo bls llnniels. "At no time during thc interliew process was I cvcr msdc aware of any past his!or?; \%ithin Christopher CoIumbus t-Tigh School involk-ing any assaults and/or uthcr violent crimes." (Ilaniuls AJ1: a1 8.) Only afer her assault o n October 3 0. 2003, did she lcarr; -'ttl:it lhcro wcre nurnelvus prior incidcr~ts of cri1nin31 r~ctivity within I thc school] including assaults similar to that ivhich occurred to nsc." (u. at 30.)

11s. I)~niels's recollection of the interview prvccss is supported by tlsc depositioti testimony of M s . rucntcs, who also did not recall hat i t g any personal discussion with Ms. Daniels regarding scl~ool security or pas1 criminal incidents at tlic school:

Q [lid you cvcr ha\ c ,In> indi\,idual cnnversations ii it11 Ms. Daniels prior [117] C7c~ubc1. 30, 2003 {there )oil cxpresscd to Iwr that you belicved the school n a s sal't.'.' A . Yo. I don't rcccdlecl.

(Fuentcs Dep. 'l'r. 33: 1 0- 16: see alsc? 4. at 2 1 : 14- 17.) Ms. Da~licls is LOI-rect that numerous criminal activities occurred 3t thc school in the }.ears prior to hcr employment, including lbvo robberies, one felony assault, and lu.enQ--twv misdemeanor assnults in thc year lwlore her hiring. (N'I'PD School Safcty I)i\,isiot~ Individual School lnciden~ Annl!,sis. at[ucllcd as Ex. [I to PI. Opp. Hr..) In light uf'lhis criminal ac~ivit>-. the school requested four ;idditional police ol'iicers fbr patrolling (31;ty in Fall 2003. but those rcquests were dcnicd hy the City bccausr the NYPII "didn't havc enough oi'ikers to assign." (Hrunson I k p . Tr. a1 45: 16-46: 10; see also Fucntes Dep. 'Fr. ;at 58:20-22.)

l!lti~nately. ~ h c school hired \Is, rlanicls as a phq b i c n l education teacher in "tither thc end of Augiist or rhc bcginning 01' Stplcmbcr." and she bcgan working at 111c school irl Septcmbcr 200.1. ( Ilaniels Dep. 'l'r. nr I 7: 1 3-1 4.) Only afrcr teachers acccpt ;i j o b o f k r and "cnter the school." do Ihey receive a packet containing thc schor>l's written regulations - including the school's iirirlen rulcs rcyarding security -- which the teachers arc required to review and sign. (Fuenlts Dcp. Tr. 23:30-3-i:L1.) R. lVew Tencltrr Orirntnlinrl and S~rbsequenf Security T r t r i ~ ~ i t ~ g

1 . Teacher ljricntatioll Prior to thc bcginning ol' the school >car, Ms. Daniels and other neii tcachcrs recei~ecl "a

k ~ v days o r i u n ~ ; j ~ i u n " togcthcr at thc high sc11c~ul: aftcr which I hey wcrc joined b) returning tcachcrs and he uricntation continuecl f'Or cach departlnent; Christopher C'olumbus's physical c d u c ~ t i o t ~ departrncn~ consisted -*US about ~cvcnteen teachers." (Ilaniels Uep. TI., at 1 7: 1 7- 1 8:4.) 'l'hc oricn~ation programs regarding school sccurily wcrc presented by Assistant Principal of Sccurity 311~1 Discipline. E rank Giamo, and membcl-s nf his department. (Giamo Dcp. 'l'r. at 25: 10-2 1 ; Rrunson Dep. 'l'r, at -1 1 16- 10.)

lluting oricnla~icln. Ms. Daniels reczi\*cd "written materials lo re\-iciv," including guidelines regarding discipline (Tririrno Ilcp. Tr, at 42:8-43::); hu\\cvcr, she could not "remember thc speui17cs of everything (IMI 1 was proviclcd." and did no( retain any of thcst. ~natcrials. (Daniels llcp. Tr, at 18: 14- 18:22: 10: 1-4.) Mcheox,cr, although it is unclear whether these n~aterials also includcd copit.5 of the school's saSety plan (Giar-uo Dep. Tr. at 36:24-37: 1 81, 34s. Driniels testilied that she did not rccull ~+ccciving the safety plan duritug orientalion. nor has sfic cver re\:ic\i,c~l the safcty plan that was in ei'ti'ct for C'hristopl~cr Columbus High S ~ h o u l . (J)ar~izls Dep. 'I-r. at 20:l-3: 66:8-1 1 .)

bls Daniels reca1lt.d that thc orientaiio~~ topics includcd "classroom instruction stylt," the V;ICII "speci i i c SPOIIS" tcacher would b t coaching. thc school's *'guidelines and rules,'' and "an entire rcachcr meeling with the principal as relating to a lumber ot'schoul issucs; one ui'\+hich, oi' cuursc: was security." (!d. at 19:8- 16.1 According t i l her deposition. st this mccting. Ms. Daniels and the other n e u tcachurs

is-ere told that we \\\.ere ti:, usc he phoncs in the tuoms if u7t. needed assistance from an) sccurity guards. U'c ivcrt. pro1,idcd uith extension nurnbets to bc used. And we u,erc ccrtainl>, tolil about access to sc'curity guards: where I h e ~ wcrc Iocated. and how lo rcach tlleln i r11ccd sl?ould arisc . . . . hly u~~dcrstanding was that [a security gi131-d 1 was located at thc cnd uf a ha1 Iuay that had direcl access to the gymnasi u tn .

(Id. at 20:13-21:3; 16R:l9-21; see also Ilaniels :iff. at '! 12: Drlmson Dup. Tr. at 5 3 2 - 7 . ) In adclit~on, Ms. L)ar~iels and the ulher 1 7 ~ 1 ~ teachers '-it-crt: told that if fighting started in thc classroom." or if thcre \\ere intruders in ~hc'ir classrooms, "that wc should no1 gct in the rniclclle of i ~ : h a t IVC shoi~ld go t o (he phonc :inJ make a phonc call.'' (Drlnieis Dep. 'l'r. at 24:3-7; see also 131-unson Tlep. Tr. at 55: IQ-24.) Moreover. "It' we couldn't get access to a sccurity guard, or the sccurity office, ihst M e could call our olvn ofiice; thcn we could hrnre access to another teacher coining ~p u iO-i assistanot.." (Daniels Ilel~. Tr. at 30: 1 1-1 6.) Ms. D ~ i ~ ~ i c l s noted, ho\\cver, the physical education department did not h a v e :I phone. (Id. at .70:17-22.) If a n y teachers fuu11d that their sccuritj phones were not iiotking. "they wurc instructed lo 11v1it) [the sc11oc)l principal] i~nmcdiately . . . and nrjtrt~ali> she would replace the phuncs (o ensure [the teacl~ersl that they have

.. il working phone that t l l q 112n c ncccss to. (Brunson Drp. -1-r. at 53: I 7-23 .) l iachers rcccivcd additional securily tl,ai~ling during orientation. For csa~nple, teacl~crs I\ ho walked out of-:in ~~nauthorized eliit were asked to n ~ a k c sure the exit was closed behind them. (u. at 79: 1 7- 1 9.1 Also. if teachers witncssod "any untowardness going on inside thc bi~ilding," thcy wcre 'bllol to gct illvolved but to 11otitL security" immcdistel?. (Id. at 79:20-24.) 'I'cacl1t.1-s wcrc also instrttctcd to keep heir c.l:~ssrooms locked in order to keep out unauthorized students. (M. at 5 x 4 - M 3 . )

Significant b. hls. Daniuls tcstiiied that all representations made by school officials during orientation regarding sccuri t! ityere made to a group of tcachers ; ~ n d not to her alone: Q. IVere an! rcpt*c'.;cntatiuns 1n;ldc to 1 . o ~ orall! by anyone employcd by thl: b a r d of' 1:ducatiun or anyonu ~i i th C'hrislophcr Uoluin bus 1-1 igh School regarding securi~! " 21. Ycs 1 es. I think that thc representations that were basicnll~ made to mu were that ii t. iruuld bc sati., IIML we werc advised to if ivc left the building, to leave thr: b~~ililing in - at leas1 n i t h another person 0 , Who made thcsc reprcst.~~tntic~ns to you'.' A. \ I ' c ~ i i kno\v. I'm nc!t clrtirely sure. It coulci I ~ i v c bccn other rcachers just ~alliing in gencrrr I. Lt could have been at a gcneral s ~ a f f mcelinp. or an overall teachers' rn~etitlg Lr the rntirc school. It's a x7r.r! large school. Q. So these were gencral statcmrnh that were m ~ d e to teachcrs, not just IV you? ,4. Right . . . Security nus a big issuc that, I felt. had bccn discussed often, in turms of that wc had good security dt the school, and thdt tvc basically did11.t h a ~ e anything to fear. It is not so~ncthing 1 u r j s really concerned about. Lct's put it likc that.

(Vatlicls Dep. Tr. at 34:4-35:24.) In addition to pro1 iding securily training during orientation, Mr. Ciiamo was also I-cspunsi blc for disscrninating all school sccurity infbmm;it ion at the morlthly Fxulty conferences and bi-monthly depart~ncrll rnuctings. (Giamu Llcp. 'l'r. al 35: I U-2 1 ; Brunson Dcp. 'l'r. ar 4 1 :6- 1 0.) According to Ms. Fuentcs. school s c c u r i ! ~ was addressed at these frlcully meetings on apyrosimately three separate occasions prior to the Clctober 30.2003 assault:

In general ~t is discussed h u u safcty is; eicyone has to play a role in safety including thr: tuachers. thc ivhole communi tg and then eve gu and teach them fit14 [5] of OM t o keep thernselvc.5 safe. huiz: to keep thc building safe, huw to look out for things ti hich tics in the bchax i c r management aspect ol' running a class; neker approach a child is always. :lIways stated. ncver approach a child; iiltbays ask Jbr ~ssistance, never get inlo an argument, use the photle system. use the support systcm [hat has hwn sct up within the building and on and on.

(Fuentcs llep. Tr. 22:2-13.) According to M s . Daniels, prior to the October 30, 2003 assault, s;ht discussed wcurity issucs in her classroom with colleagues at these lii~ulty mcetings, w i ~ h her Dcp. Tr. ~t 74:24-35:O.)

:lccording ro hls. Daniels's al'lidavit. --Pursuant l o its nrittcn agrecmcnl with the United Fcderation of Teachers, the Ciiy of New York, and by exlension its Department of Educalion and C'hristupher Columbus High School. wds required to implcincnt a school safe^!, plan under which tcachers would bc prolectcd.?' iDdr~iels riff. ar '' 32.) Accordingly. at !hc time of the assault, thc school msintainod a scht~ol safety plan that nlirrorcd a templu~e designcd by the Ncw York Cily School Chancellor's office. (Giarno Dcp. l'r. at 21 :5-14: Fuentes Ilcp. Tr. at 59: 13-15; Brutlson Dep. 'l'r, at 3 7 6 - 10.)

1. 'I'he Llepa~.l~i~cnt of Securi~v and Disciylinc 'The plan is adrninistcrcd by 1 ~ 0 scparate departments at Christopher Columbus. First, Mr.

Gjaulo, Assislal~l Pri:~cipal o C Security ard Discipline, is responsible for supervising the non- NYPT) mcmbers of thc school's sccurity team, and f'ur taking "~lisciplinarq actions" for "inliactions thal thc stucicnls may have cum~nitted insidt. the building." (Brunson Dep. 'l'r. at 1 h:2 1-24.) -1'hcsr: non-hYP11 member-s consjsi of approximately "ten or elevcn" dea~ls (all of whom ;IIY teachers in thc school). and cight school aides {somc o f whom arc f(brll~er Christopher C'olurnbus s~udcnts); all deans and ~ c h o o l aidcs arc. required to take p~+ofcssional developmt.nt clczsscs rugarding sccurity bolh before and a f t e r they begin working at C'hristopher Columbus. (Giarno Dep. Tr. a1 7:7-20; 23: 17-27; 3 1:6-7; Brunson k p . <PI., at 33: 1.j Although the deans and school aidcs do nch wcar a 17;lrticular uniform uhilc on-duty, or carry a weapon. the deans \$car ID tags identifying t hcn~aelves and carry radios. (Giamo Dcp. I r. at 26: 12-2 1 : 29: 19-2 1 ; 30: 13-3 I : 7: 35 :23-2-1. ) b'hile school aides at.< typically rtssig~~cd to schovl exits, locker rooms, and hallways (d. 2; 2 7 : 14-2 1 ). dcans at-e generally "assigned to scanning. ha11 patrol, cafcrcria duty or office (jut>-." (M. at 28:7-8.) Mr. Cii:~ml; '-imakc[s] sure that p ~ u p l e are on their posts." (Id. at 822-24.)

2. The School Safety Ilivision The sccond deparlment rcsponsible ibr implcrncnting the school safety plan is called rhc

School Safely Dii,ision ("SSD"), an N Y PD agency that works cluscly with Mr. Giamo's department to "mciinlain a safe and 01-derly cnvironmunt inside the school building." (1:ucntes I>cp. Tr. rtt 29: 18; Hrunson Dcl:. 'l'r, at 1 120-23 13: 15.) The SSI) adheres to written securitj- guidelines tha~ .'basically c:irue o u t oC thc patro I guide and administrative guide." both of which Liere produced b) the NYI'D. (Brlinson Ilcp. 'l'r. ;lr 33 :20-34:3; 36: 1 8-22.)

1-he SSD is 1nan;lged by Tan1111y Brunson, :I I-cvcl '1 hree Schnol S a l t y .Agent ix11use responsibilities includc si~pervising the "schuol safcty agents" - i.c.. trained NY PI3 of!ic.ers assigncd to C'l~ristuphcr Columbus - and monitorillg thcir p:~ttuls and scanning activities. (Id. at 1 1 : 1 5- I 8; 1 6: 1 8- 1 9. ) .A1 t h o i ~ g t ~ tllc school safety agcnts supervised hy Ms. Drunson are dresscd it1 NYI'L) unilbrms rind carr! radios, they drc not armed. (Gismo Uep. Tr, at 27:2-8; 3614-5: Rrunson Dcp. Tr. at 30: 1 8-2 4.) In addition to the fiiieen police officers under Ms. Brunson's supervision, ibur uniformed, ;irn~ed police ollicers - under lhe sul~er\'ision of an NYPI) sergeant -- arc : ~ S O assigncd to ~jatrol thc c~ltirc SCIIOUI building. (Rrunson I k p . Tr. at 30:25-33: 12.)

'I 11e C'hristophcr Columbus safct) plan does not rcquire that a spcci tic numbcr of "school s~ll'cty agents" be assigncd to the school, n o r docs the plan rciluirc Ihe school to position irs school s i ~ i ' e ~ y agcnts a1 specilic posts for a sl~eciiic number elf hocrrs. \l,'ucntes Dep. -1-r, at 59:2 1 -60:5; Brunson Ilcp. 'Cr. at 30: 10-23: 2 1 :8; Gianlo Dcp. '1 r. :II 14:s-6,) Rather. the number of'school scrlkty agctlts assigned 10 rl school is determir~ed by the "Commr~nding Oflicer" for that b ~ o u g h - also a New York policc officer \\hu lnakcs thc' determin;ltion based on u rcvicw of "incident stats" at u particular school f ~ c l t n thc preceding !'car. (Brunson Ilcp. I'r, at 42: 16-44:23.) Also, tl12 positionins m c l duration of school safkty agerlt posts is at the 'discretion" of Ms. Brunson. (u. at 35 .Y.)

According 10 Ms. Brunson, Christopher Columbus was rjssigned fifteen fuil-time "school safer!- agents" at the ti~mc 01' h e assault. and M s . Brunson determined thcir postings "bascd on the school nceds and thc hours of operation of the school building." (M. at 35 :2 1 -24: 42: 16-24; 45:-1- 8 . ) Thus, hls. Br.unson umuuld place sc110oI safely agents only after confcrrit~g with Mr. Giamo ancl his. Fue11tt.s. ( u. at 23: 10- 1 4: Fuentcs Dep. 1.1.. a1 36: 10-373.1 School safctj- agents arc expcctcd lu "cover a post assignment that nns givcn by [Brunson]. patrol the hallways. conducr verticals and monitor lhe activities u ilhin . . . the school building." (Brunson Dep. Tr, at 2:20- 24.) Typically. if Ms. Brunsori ivas u ~ ~ a b l c lo assign a sclluui safcty agent to a piirticular posl. '-1,lr. Giarnv would tq. l o put a S C ~ ( Y ~ aide 111erc." (u. at 48: 1 8-20.)

r l c c o r d ~ ~ i g to Ms. Drunson, one school saSety agent is typically assigned to patrol !he entire founh Iloor . (Id. 31 26:8-18.) 1ndt.t.d. tor the s e c o ~ l d , third, and f'oul~h floors, only oric agent \vas assigned to patrol cach ilvor li.0111 7:00 a - m , to J:30 p.m. each day. (u, at 28:7-25.) From J:30 p.m. ~o 9:30 p.m., the School Safety r>i~*ision had a smallcr overtime crcw of police offi'ficcrs that were typicrlllj~ assigned to "sosrlning." "outside dismissal." and the "sccvnd lloor bccause that's whcre they kept thcir t i elling classes.'. IN, a1 29: I --30: 13; 36:7-8.) Ms. Brunson Sur~hor testified that bctwccn 4130 p.m. and 6:OO p.m. on tllc date oi'lht. nssaull, ill addition to ~ h c NYPII ovrrlimc crew. thc school was patrolled b5- one dcan arlcf six school ~ ~ i d e s ; howcvcr, none of rhcsc individuals W O T ~ assigned tn ~ht. focu+th Hnor. (u. at 83:20-852 1 . )

3. -1'he Sccurit~ '1'clephc)nc Systenl As prc\,iously discusscd. rhe school maintained a security telephoile systeni 2nd instructed

all teachers to L I I ~ I ~ Z C thc sjstem whencvcr they needed a security guard in their classroom. H o ~ s c l cr. thc security phoncs did IIOI ,il\iays work. Indeed. Ms. 1:ucntcs testiiizd thar security phouc.; hrokc don.11 "a lot." ( F U C I I ~ C . ~ Dcp. -1'~. 35: 14.) When srcuritl; phones broke doitn. teachers \\ere instl-uctcd to "till I I out ;1 ~z hite card . . . and ~;ubmit ir t c ~ thc assistant principal." (I_d_. at 353-7.)

AL her deposirion, Ms. Daniels testi licd t h ~ ~ t shc used Ihe security phones sekeral t i n ~ c s prior tu the assault. When the p11unt.s wcrc working. securit! calnc to thc gym. (Daniels Ilcp. 'l'r. at 27.1 5-78: 17.) Howe\er. Ms. L l ~ ~ ~ ~ i c l s stated thal "there had hccn n couple of othcr instnnczs that I had al~rmptcd to get securily there and did not gct 3r1 atlsiver on the othcr end n f ~ h t . phone." (Id, at 29:20-23. Ai'ter these incidents. 11s. 1)anicls reporled the non-wtorking ssecurity phone tn her supervisor, Ms. C;:~llardo. (Id. at 30:2-8.) D. Tlir Assnulf

On October 30, 2UU.3, somctime between 4 3 0 and 5:WO p.m., Ms. Daniels was teaching a ~olleyball cl;lss in tht gymnasium located on the f o u r ~ h ilcjor. ol' thc high school, when she noticcd two young tncn cntcr the gym. She recogni~cr! onc of the mcn - Wilson Pug11 - as a currcnt Christopher i:olurnbus student, biit shc did tlot recognize the other man. (Jcan Daniels Mar. 4. 2004 Kule 50(h) Dep. Tr, (**Rule 50(h) Ilep. 'l'r."). attached as Es. I3 to Cioldrilan Decl., at 1 0 5 - 1 1 :7 3: Llaniels Dep. Tr. a! 34::-42:20.) Neither man w a s a s(udcnt in hcr class, and they did not havc pcrnmissiton to be in her classroo~n. Conccr~lcd that thc ttlen would disrupt hcr cl~iss, Ms. Ilaniels ~v.va1kt.d tvwards rhcm, blew hcr ~ h i s t l e . an allercation cnsurcd. anti the unkno\z:n man struck Ms. Daniels in t l ~ c left temple. (Rule sO(11) Dcp. 'l'r. at 1 1 : 18-1 2 : 1 1 ; Daniels Dep. 'l'r. at 33:2 1 -46:3 .) The u n k n o w n nlnn - later identified os ;l.nthon!. Smilh - in~mcdiately vacated thc gym f'olluwing the altcrcrition.' Ms. Ilaniels then asked hlr. f'ugh to locate a security guard, but "he came hack to say that the~+t: \\as no one lherc [on the fourth l'loor. 1''

(Rule jU(h) Dep. Tr. at 1 -l:20-32; see also Daniels Dcp. 1 r. at 4 9 2 1-50; 13.) Immediatel! thcrcarter, Ms. 1)nnit.l~ gathcrcd her class to discuss what had just occurred. (Rule jO(11) Dep. I'r. at 14:24-15:8: Daniels llcp. Tr. at 50:23-5 1 : 17.) Hehre she could beg~n the discussion. however. shc noticed another s t ~ ~ d e n t from her next class entering the gym. hls. Daniels ~\alkcd iou ards thc student. i~ltcnding to ask him to tbait autside until aftcr s h e had spoken 1% ith hcr class t h i i t i l l s t u,itncssed the altcrcnt~ot~. (Rulc 50(h) Dep. I'r, at 15: 10-27: Daniels I3ep. Tr. at 5 ! : 10-35.) While doing so. M s . Smith rettnttred thc gym. approached hqs. Ilaniels fi-om bchind. and punchcd hcr in the back crf the head; causing her to losc cunsciousilcss (Daniels D c l ~ I'r. at 55:6-2 1 .) 'l'hc rlext thing M q . Daniels recalls is s i a i n g on a chair in the gym. feeling pain in the bi1i.k u t' hcr l ~ c a d . (Ilule 5O(h) Dcp. 'l'r. ~1 16;3- 1 1 ; Daniels Dcp. l'r ,lt 54:23- 5 5 : 6 . ) It \\,is not until after lllis second assault that securit~. personnel appentcd in the Siurth ilovr g>rnuasium, along [11] it11 hlr. Gianlo. (Daniels llcp. I'r. at 162: 17-22.) I-:MS arrived and she was taken lo Jacobi 1 lohpitsl nhere shc rci~aineci overnight. (K~ile 50(h) Dcp. 'I'r, at 20: I 1-13; 33:21- 23; Donitis Llep. 'l'r, ut 57:.3- 1 9.1 Ms. Llanicls sustainccl scveral s c r i o u ~ injuries including a fractured skull. a frnct~!reci riglit rib, and hcmorrhaging around thc Iert templc. (Rulc 50(h) Dcp. Tr. at 30~19-31:I I . )

Ms. I)aniels did not use thc telephone in the g>.m to notifl schuol security, either beforc s l ~ c confron~ed the l ~ t o rticu, or after she Mas hit in the head. (Daniels Dep. 'Tr. at 50: 13-1 5 . j Although it is unclear irom the record \thcthcr Mr. Smith ivas n former o r current studcnt. all paflits n g c r that he was an intruder in Ms. Ilaniels's classroom. (See T3runson Dep. Tr. at 68:l 1-18,)

Llr. Srnilh was arresczd the next day, October 3 1,2003. (NY PD Omniform Systcm Complaint, attachd 3 5 Ex. H to ( h i d m a n Dccl.) Al~hough he submitted a I~anrliilrillen contkssion regarding his assault on Ms. Danicls, il is somc~vha~ u~iclear whelhcr his canfessior! encompasses hnth the initial nl tt.rt.;ltion and Ihe subsc~lucrlt pullching frotn behind, or just the former. Smith Co~~fession. attached as rs. I I to Goldrnnn Lleci.) Regardless, 111e record clearly iriciicatcs that hlr. Smith was respo~~sible f'or both atiacks on Ms. IlanieIs. (Set: Daniels Ilep. Tr, at 586-21; \jlitncss Statements, attached as I l l . H lo Goldman Decl.)

After the assault c l r ~ Ms. Llaniels, Christopher Columbus: High School was designated an *'impact s c h c ~ l " by rhc New York City School Chancellor. meaning that the school ~ ~ o u l d rcccive including s i x Bronx ask fi)rce policc ofiicers, plus an -'additional task rorce." additional s e c ~ ~ r i t y (Rrunson Dep. I'r. ar 77:3- 12; E'ucn~es Dep. 'l'r, at 4 1 : 12- 17.) '1-hc IJFT agrccd with the U hancellor's dccision t o name C'hristopt~er Columbus an -'impact schl7ol." (Fuentus I>cp. Tr. ill 60: 13- 11.) E. Procedural Posture

In accordance \vilh rhe recluire~nents of' her i1tli011 - I ,ocaI 2, American Federalion of I'cachers (!IF1 .-C'IOI - Ms. Daniels s c r ~ e d a Noticc of Claim on the Citl- of New York on . l a n u ; l ~ 5 , 2004. (Notic'c' of Claim. attached as Ex. A lo Guldman Ilecl.)

-4 Rcr the City rrjiiscd to a d j u s ~ her claim, Ms. Daniels con~menced Ihe instant lawsuit on September 29. '004. (Complnint. attached as Ex. U to Cic~ldman Decl.) In her Complnint. his. Daniels tisserts three scparalc ialises of action: 1 ) the City a c t negligently i n its proprietary role as landlord of Christopher Columhus High School (id. at 77 18-1 Q),' 2) thc City breached its special duty ot~*cd to 11s. Ihniels b!' "[ailing lo implemt.ut. maintain. manage, supervise atld!or utilize thc school h a l t y plan . . . and protcct its tcact~ei*~'' (id. at 7111 3 I -32): and 3) !he City breachcd i ~ s contract ivith the U F T '-by failing to irnple~nent. maintain, managc, super\.isc andlor utilize the school salit? pl,~n included" in thc contract." (M. all11 21-25.)

The C'il) of New Yolk tiled its ,4nswcr nn Novc~nher 1 5 , 2004 (Goldman Uecl., Es, D), arld now tuoves for s u m m a c judgment on LIII three counts. For the rer-1sons stated below: the 11, Standard of Review r-\ rnolion for sur-tunan j udgmenl may be granted "if the pleadings, depositions. answcrs to irlterrogatories, and ~ldmissians on file. togctt~er with the affida\,its: if an);, show that thcre is n o gcnuinc i5sue of material fact and tl:d the mo1,ing party is cntitled to judgmunt as a matter of law." f-cd. R. C'il. P. 56(c). Ln addressing a m o ~ i o n ibr sumn1:lry judgment, "thc court must visiv tlu' cvider~cc in thc light most favurablu to he party against \<-horn summan j udgmcnt is sought and rnust J r i w all rcnsonablc inkrenccs in [ i ~ s l favur." Matsushita Elec. Indus. C'o. Ltd. v. Zenith Radio Cor-p., 375 L1.S. 574. 587 (1986). Whethcr any disputed issuc ol'hct crisis is for the court - to determine. Balderman v. I.'nited States Vctetans Adnlin,, 870 F.2d 57, GO (2d Cir. 1989) the nonmoving party "has I'ailed to

Surnrnary ju~lgmenl is appropriate il: alicr d i ~ ~ o v c r y , ' 'l'hc Con:plaint catalogues twcnty-L~\o allegedly negligent acls or or~~issions committed

by rhe C'irj 3 5 lnndlord oftlie high schc~ol. 'ritz~lty-one of these acts relate directly either to the s c h u o l ' ~ security sysieln or the school's special duty tu kecp its teachers safe. The other allegedly negligent act is thc Cit! 's fllilur e "to comply \z ith ordinances. agreemenls. rulcs. edicts and regulations prornu1ylt.d by the [City] or other go\ ernrncntal authority.'. (Complaint at 11 1 8.) make a suf'ticicnt showing on ;in essential clement of [its] case with rcspect to which [ i t ] has the burden ol'proof." Celotex C ' a i ~ . k . Ca~retl, 477 1J.S. 3 17, 323 (1986). Once such a showing has been madc, thc nun-moving party musl present "specific h c t s showing that there is a genuine issut. kur 11-jal." Fcd. R. Civ. P. 561~). The party opposing sun~mary judgmenl "n13)- not rely on conclusory allegations or i~nsubstantiated speculntion." Scotto v. Aln~enas, 143 l:.?d 105, 1 14 (2d Cir. 1 998). hloreovel-. not cvcrq- disputed ficrunl issue is material in light oi' thc substantive I a v that governs the c a w . "Only disputes over Ihcts that might afl'cct thc outcome of'the suit ul1cit.r rhc gvvcrning law will properly prz~ludc. summary judgment ." Anderson v. I .ihcrty Lobby. Inc., 477 I!.S. 242, 248 (1986).

Finally. [he nonmoving part!; "musl do morc than simply show that there is somc metaph!.sic.al doubt ns to the nia~rrial facts." Matsushi~a Elcc. Industries C a . 475 I1.S. it 586. To withstand a summa? ,judgment motiorl. sufficient er iiiet~cc nus st exist upon u-hich a reasonable jury could retunl a \,crdict for the nonrnovar:t.

111. &iscussion .4. Negiigencr Ms. Ila~~it.ls'b f i ~ st cause of actiiln alleges that t l ~ c (lily acted ntlgligcntly in its proprietar? rolc 3s landlord ut'Cht istophor C'olunihu~ High School. I n i t s motion Sur s u m m a n judgmenl, the Citj at4gucs that this claim I ' r j i l b ah a matter of law becausc tI~c City's alleged misdccds were committed i n its g o v e r ~ i n i z n ~ ~ ~ l capacity, and the C ~ l y is thcrcforc i m n ~ u n t . tiom liability. 'I he City conlends rhat thc gracamen of plainti fl's claim involves security issucs. and that courts always dcc~n sccurity tu be a governmen!al i ~ u ~ t i u n , rather than a proprietary one, and ~ h c City is cc~t~seilucntly shielded li-om liability.

l'lain~i Il counters that hcr assault \\!as the ccsull of thc Ci tp's "failure t o satisfy its obligaliun of reasonable care in maintaining the property,'' and that Ms. Llaniels's "proprietaq claim en-ranatcs fyvrn'' the City's .-gc'neral resporlsibility to pro1,idc for a safc cnvironment upon ils property.'. (PI. Opp. Br. at I 2 . ) Ms. TJnnicls citcs the school's "allowing Anthony S m i ~ h unauthorized access to thc school." its failure to appreciate the danger hc presented, ils prior historq ol'ctiminal incidents and ils roqucsls for additional guards (denicd bl- Ihe Cityj, as eilidcnce of' thc C'ity's Sailurc t~ satisfy its obligaiifins ;IS a landlord." (Id, at 12- 1 4.1

11 is ivcll-settled that "p~tblic cntitjcs ate 'irnmune l'roln ncgligencc claims arising out ol' rl~c perrorm~nvc c l f their gc~vcn~rnot~tsl functions. including police protection- i~nless thc: injured persol] est~blishcs a special t4clationship ~ r ' j t h the entity, kvl~ich would create a specific duty 10 prorcct that individr~ril, and the individual relied on thc perfbrrnancc of that duty."" McEnaney v. State. 700 N.)'.S,2d 258, 260 (3d Ilep't 1999) (quoting Millzr. i . S a , 62 N.Y.2d 506. 510 ( N . Y . -- 1984 1). Conversaly. w h e n the Statu acts in [a] proprictnry capacity i t is subject to *the same principles ul'lvrt law as is a privatc landlord' and it may be I'ound liable I'or negligence even in thc abscnce of a spccinl Jut). u, at 761 (quoting Miller, 62 N . Y .2d a1 5 1 1); scc alst, Maril~rl S z

<. Citv oSNciv York. 521 N.Y.S.7d 485.487 (2d [lcp't 1987). " Ms. Il);lr~icls also argue5 that a qucsliun of' t j c t "still rernain[sj as to \\hat notice the C'jIy ;IS to . . . thc oi-crall danger Icvcl within I thc school]." (PI. Opp. Dr. of Neii j'ilrk had been g i ~ ~ c n at 15. j :\ccording [10] M s . Danicls. h i s queslion remains open bccaust: she "has not heen ~ r u v i d c d with any records concernit~g [Anthony Smith] and is thus unable to put fbrth proof that thc City was vn r~oticc of rhe specitic dangcr he ptcscntcd to his; Iellow students, teachers and

alike." (Id. nt 14-1 5 . ) 11s discussed bclow. this facl is not matcrial to the qucstion ad~ninistrn~ic~tl of wtlsrher thu Cit!- IVHS acting in a govesi~mcntal or prnprictary capacit) when it commi:ted (hc allegrJIy ncgligen~ iicts.

' Thc "special dutj" cxceplion is discu5scd in depth bclow. Set Scction III.H., &. bloreovcr, "IVhci-e . . . thc [public entity] acted in a dual capacity - i.e.. in a proprietary

capacity ns landowner . . . and in ils governrr~zr~tal capacit~' hy providing police protection through . . . s c c u r i ~ ~ - rhr cvurts are dircctcd lo scrutini~e thc clai~nant's allegations to ascertain where thc [public cntity's 1 conducl properly 1 3 s along the 'conlinu~um of' respon sibility' bctween these proprietary and _covernn~cntal Suni*riims." hIcFnaitey, 700 N . Y .S.?d at 26 1 (quoting Miller, 62 N.Y.Ztl at 5 l 1). I'his "continuurn" begins n,ith "the public e r ~ l i ~ q ' s duly to provide simple maintenal~cc of its propcrty such as 'rcpair of stcps or the maintenat~cc US doors' and gradually extcnds *our to more colnplcs measurcs of'satkty and security for a greater area and pop~~lncc, whcrcupun llle actions increasingly. and at a cerlain point only, invoive govern~nental fi~nctions. [or example, rhe m a i n t c l ~ n ~ ~ c e oi'gcncral policc . . . proteclion.'" d. (cll~oting Miller, 62 N. Y .2d at 5 12). 'l'hus. thc Oit>'s liability turns on "thc specilic act or omi.;sio!-r out of lvhich thc i n j u q is claimed ti, have arisen and !hc capacity in uhich that acl UI. Iailure ro act occr~rred." Id.; scc illso hlillcr, 62 N.Y.2d a1 513: Porterficld v. Cily o f ' N c ~ ~ Y~ork, 573 N.Y.S.2d 681, 681-82 (1st Ilep'r 1991).

Plaintil'f's oppclsition papcss rcly exclusively at1 Miller to support its argumenL that thc C'ily's failure "to providt for a sale environmctll upon its properly" consrir~~ted negligence in its proprietary capacily as a landlord. 11'1. Opp. I3r. at 12, 14.) 'I'llat reliance is misplaced. In Miller. a State unii crsity student M ~ S rr~pcd in the hascment of hui- on-campus donniloq by a non- s ~ ~ i d c n t . She sued thc S tdte h r failins bolh to providc adequazc police protection and ru lock the outer docus of thc dortnilor~. I h e first theol?- of liabilily w a s d i s r ~ ~ i s s e d by the trial court because policc pr~)rection .'M'I:S twld to a go) rrn~nental act ivit) sub,jcct lo sovcrcign irnrnunir! ." 67 N . Y.?d a1 509. ?'he N w York Uoui-I 01' Appeals af'liri~~cci liability on rhc sccond thr.l)r!, finding tile S t ~ t t . had breached its dutics as :i lat~cllord. IIow~ever~ as !he first scntcnce of the court's opinion makcs clear. the application of the court's holiling is much narrower than Ms. Daniels :irgues: "Whcn the Slatt ay?cr;~tc-s housing, it is hcld to thc same duly as privatc landlords in the maintenance 01' physical security devices in thc building ilself.'? Id, at 508. l'he coun fi~i-ther held that, "Ownership and cnrc rclating to buildings wilh 1rina17t.r has traditionally been (an.ied on through p r n a t ~ cntn-pr-ise, spccificallv by landlords and thus cdnstitutes a proprietap J'unction whcn perl'orn:cd by the State." Id. at 5 1 (einpliasis added).

C'hristopher C'vlumbus I jig11 School is not an apaflmcnt building. so Miller's applicabili~~ to Ms. Daniels's clairn i s limited. Unfbrt~mntcly for Ms. Daniels, tllc heavy weight of authority further indica1t.s that :I public cntity lhat provides security in a non-housing ~ o n f c s t - and partic11l;lrly in public schorhs - is acting in its gcn et.~~rncntal capacity, and not 2 s n landlord.

For ~xarnplc. in M C E I I B I I ~ ~ . ;1 Statc university student NJS shot in a lecture hall by another student who had taken the class I~ostagc. The injured studc17t sucd the State for its ncgligcnt operativn of t h t uni~,crsity and, in particular. fi>r failing to "properly protect thc safct!, ot' students." f'or t i i l ing to supervise the shouter u 110 t l ~ c State "should havt. hncn+,n" was unbalanced and \,iulenl, and for failing to install secusil> photics in the Iccture halls. 700 N.Y.S.2d at 259-6 1 . The court unequivocally r ~ j e c ~ e d the notion that thcsc a1lcgt.d acts were committed in the State's proprietar?; capacity as landlord:

In our \ ieir, these contentions all cliallcnge the adequacy of 1 thc public unil t't.s~t! '31 ovcrall sccurity s> s t c n ~ and its particular sccurlt! pru\'isions and pr,iclic.rs. [n casc aftcr casc. the co~lrts oi'this Statc h a w recognized ttiat the provision ol'sccurity [including c:it~~pur, security] against physic:tl attacks by third parties . . . is a gcv t'mmcn?al function involbing policymakit~g regarding the nature of the risks prcscntcd. and . . . no liability ar1st.s f?om thc performat~ce of such a function absent ~1 special duty of proleclion.

Id. at 261 (citing cascsj (intzrnr~l quotations marks and citations omitted) (alteration in original). KcsponJinp to claimant's allegation that the school should have installed security phones, the court ~tatcd. "the State's failurc to cstrihlish, operatc and mainlain a ccrtain type of phonc systcm in the lecture halls or emergency communication network . . . constitutes allegations of negligent provision of sccuri~y against criminal acts cln campus, a governinent function.'' u, at 262. Simi1;lrly. "thc Statc's delcrmination as to . . . N herher to cnroll or retain a troubled student arc govcrtltnental Sunctions." Id.; scc also Bonner v. Citv oi'New York. 73 N . k'.2cl 930, 932-33 (N.Y. 1 989) (rcvcrsing judgmen~ lbr. tcnchcr, where teacher was injured by intrudcr on scl~ool for failing lo repair broken playgroulid gatc. because gale rnaintenaticc playground and sued ('it!- was part o f school's security systcm and therel'ort. guvernn~cntal function); Jucobellis v. City of' Ncw l'ork. 603 N .Y.S.2d 877. 877-78 (2d Dcp't 1903 l (granting summary judgment wherc -- tcachcr ivas injured atlempling to rcmove weapon-wielding stl~dcnt from classroom and sucd City for fiiling ''to kccp intercom syslenl it1 good rcpair," because :tlleged negligcncc "does no1 s i e ~ n from [City's] liilur-t. to f'ulfill a proprietary duty."): Porterfield. 573 N. Y .S.2d at 68 1 -82 (;lftirrning dismissal oSte~~chet.'s claim that she was scxu:illy assaulted in unlockcd tlook room by armed becausc clairn arosc S~UIII City's exercjsc of governmental duties); Marilyn S., 52 1 a s s a i l ~ i ~ ~ t . N . Y.S.2d al 487 (reversing jud~rncnt for teacher: whcru tcavhcr was sexually assaultcd in faculrj. ladies' room a n d sued City Sor maintaining inadequate k c distribution system under [11] hich keys were likely to fall into unauthorized hands. bcuausc key system M . ~ S aspect of scl~ool's security s! stelm and thcrcfbrc a governmen( Kunctiot~).

1Icrc. the gravamen 0 1 Jls. Daniels's co~nplaint is the City's alleged failurc to provide adequate sccurity in the scllool building. As noted, plaintif'f alleges twenly-two scparrlte negligent acts by the City, tucnty-0112 o f which deal directly with the school's security system.' (Complaint at 7 I 8.) Her opposition brief argues nlorc speciiically that thc school was acting i n a proprietay capacity tvt~cn it allon ~ ' d Antl~ony Snli~h unau~horizcd access lo the school without recognizing the danger he prcsentcrl. and when il Failed to increase securily e\'en aticr its recent crime-riddlccl history. (PI. Opp. Hr. [211] 12-14.} This court canno1 [1] iew thesc allegations as cln!,thing but a complaint against thc Ci t j . ' s management of t l ~ c Cllristopher Columbus security system, which is a distinctlj- governmental function. Scc Ronner, 73 N.Y .2d at '132: McEnane\i. 700 N. Y .S.2d a1 2 6 1 .

I t matlers nvl tlial snnlc of plaintiff's allegaliuns arc hortlc out by the ~+ecord. It is true, i'ur example. that tllc scc~irit~- phones in Ms. Daniels's gymnasium did not aI~va>s ~vorli. (Llaniels I>cp. Tr. at 2(3:20-33; Fucntcs Llcp. 'I'r. at 35: 14.) But mailltenance of securiiy phones is a goi.ernmcntaI function. Jacubrllis. (j02 Y . Y . S .2d a1 877-78. SimilnrIy, thc record demonstrates h a t no schuol sacctj agcnt. dcntl or school aide was prcscnl on thc fourth iloor at thc ti~ric of thc assault (Daniels Dep. 1-r. at 49:21-50: 12). hut assigning secul.irj* guards to specific pos~s is manifestly par[ ~ i t l c l parcel of the school sccuritj- system, and therefore n €01-crr;nicntal function. Honner, 73 N.Y.2d a1 932.

hlorcover. the City's de11ial oS the school's rcqucsts for additional security guards just prior to Ms. Daniels's t.nlploymerli - ikr fyom constituting evidence of proprietary cnnduct, as plaintiff argues is a perfecl exa~nplc o f t l ~ c type of poliuyniaking that is rcscrvcd fbr the City, and from ~ t h i c h the City is shicldcd from liahiliry. See Riss v. Citv of Ncw York, 22 N.Y.2d 579.

b Therc is simpl! [1113] ckidenct. in the rccord to support Ms. Daniels's remaining allega~ion [hat City failed 'ro co~npll \\ ith ordinances, agrccments. rules. edicts and regulations promulgated by Ihe [C'il! 1 or athcr governmenlal al~thol-i:y." (Complain1 at 7 I 8.) j8l-82 ( N . Y . 19i181 ("The nmount of pmteclivn that rnay be providt.d is limited by thc resources of the community i i r d by a considered legislative-executive decision as to how those rcsourccs may br deployed, For thc courts to proclaim a nt.\im and general duly of protection in the law of fort . . . c o ~ l d and ~ v o u l d inuvitabiy dcterminc how t11c limited police rcsnurccs of thc cclrnmuriity should be allocated and ii-ithout prcdictablc limits . . . .")

l ~ h i l c issues of fact exist rcgar-ding whelher .-\nlhony Smith was a current or f'onncr I . R s ~ . Christopher Colurnbuj student on thc date of the assault, and utht.ther "the City was on noticz of the specific ciangcr he prescntcd" (PI. Opp. Br. at 1 4). thcsi. I'acts arc rrot nlatcrii~l to the instant inquiry. I f Mr. Snli th was indccd a i'onncr st tident, then his un:iuthorizcd tnlrance M ~ S a result of the City's oper~dion of rhe scl~ool security system - a governmental [unction - and the City is therefort imrnunc from liabilit) . On thc other hand. if' Mr. Smith was a current Christopher C'Oli~mb~s sti~dvnt, it is [he City's ullimatc dccision "whether to cnroll or retain a troubled studc~lt" and that decision is aiso a gu\.crnmznlal function. McEnanev, 700 N.Y ,S.2d ar 262. B. Rrer~~~It of Sprciol Duty

hls. I)ai~icls's second cause oi'action alleges that the City brrrlchcd its special dury owed to the ~ ! l ~ ~ i n t i f l ' b y l'niling to propcrly implelncnt he school safety plan and protect its tcachers. The City argues that this oausc of'action also fails as a matter of Ian because any statctncnts madc by the school rega1-cling sccul-il! ivcrc rnade to a group of tcachers, not to Ms. Danicls illdi~.idualk. and thc C'il? ~hcrcforc nel el. assumed an affirmative duty to protect plaintiff. Furthermore, gi\-cn that n o representations regarding schoul sccurity were cvcr made to Ms. Ilaniels, she could not !lave relied nn any such rcprrsentations.

In responsc, Ms. Dnnicts relics hcavilv on the lblluwing portion ol'l~cr Novernbcr 10. 200h iiffidavit, v, hich was submitted with her November 1 3- 2006 opposilion hrief: [D luring the intori,iew process. 1 met individually uith [hls. Fuentcs and Ms. Gallardo]. On both nccasio~~s, safety ;1nd sccurily within the school werc discussed a1 length. I was pro~niscd tha~ C'hristophcr Culumbus High School offered a safc erivironment and that I did not have to fear l i l r my well-bcing. I was i'urther adviscd Ihat . . . [the school] offered thc type of c n v i r o ~ r n e n ~ whcrtby special efforts \+crc being macie. and ~voulci aluays bc made, to pruiidc for m y safety and security . . . . [Blascd upon thrse explicil representations . . . [ accepted a position within this school.

(Daniels A llf. at !IC 6-9 ) .I'his statcrnent dircctl! contradicls Ms. Danicls's deposition ~cstirnonj, in which she summari7cd her rccolleclion of the inrcrvicw proccss and indic:l~t.d that rieitllcr his. Fucntes nor %Is. Gallardo discussed scl~oul security ~ v i t h her. (See Daniels Dep. 'I'r. at 1 6: 1 1 - 1 7:6; 34~4- 3524.) I.'nder thc lair in this Circuit. '-a courl considering a ~-notiun for sumrnaty judgmenr nlay not rely o n at1 al'tida~~it ~ h u ~ contradicts a party's deposilion testirnony." r)alcy v. McNcil Consiuncr Prods. ik, 164 1;. Si~pp. 24 367, 376 (S.D.N.Y. 700 1); see also RasLin v. M1vatlC:o., 125 F.3d 55. 63 (2d Cir. 1997) ("IWJc follow the rulr that a part!- ]nay riot create an issue of tic1 by sut~mitling an allidavit in opposition to a summary judgrnent motion t h a ~ . by ornissio:~ or addition. contradicts ~ h c affiant's p r c ~ ~ i u u s deposit ion testimo~~! ."). 'I'hus, his court would nclrrrlally disregard this pvl-tion of the ai'fidavit. Howcl-cr, as discussed belowl even il' this court were I U rcly on ~ h c above-quotcd st:itetnent, Ms. Danicls's clni~n would still Fail as a matter ul'

In any e~ ~ n i . in Nett York, "il is ~+ecogr?ized that Ihe on14 narrow excaption to thc general rule that a tnunicipali~! callnor be held liable Ibr its failure to protect the public ill large from harm exists when thc plaintiff can esiablish the euisicnce of a special relationship. running ~ ~ O I I I thc municipality to the ir~dividual o r prcltectcd group. thcrcby crearlng a special duty owed to the plaintiff." Krakoucr v. C i t v of New York, 62Q N.Y.S.2d 435.436 ( I st 1)cp.t 1995): scu :ilsu Pascucci \ . Board of' E d u i . of thc City of New Yo&. 758 N.Y.S.2d 54, 55 ( 1 st Dcp't 2003). This rulc ot' 13ir "rests on t11c princip~l that duty to provide policc prolec~iot~ ordinarily is one olvcd to thc community at largo and n t ~ r to a specific person. Ne\:erthc!css, when a governmental body voluntarily undo~-takcs to act on behalf u f a particular pcrsotl :ind that pcrson de~rimentallq- relies on that promihe. ;1 special duty is created." _C;enno v. Board of I lduc. ol' Citv of Ncw 1'ot.k. 888 1;. Supp. 50 1. 50K (S.D.N.Y. 1995).

l'hus. the lour clumcnts ot' [his special duty arc: ( I I u ~ ; assumption by the municipalit?, through prorni~cs nr dctions: of an aftirmative dut! lo act on behali'oi' the party \\-hi3 was injured; (2) knowletigc. on thc part of'the municipal~ty-s agents lhat inaction could lescl ~ c l harm; ( 3 ) some l'urnl oK direct contact bctn een the rnut~icipality's agents and the iujurcd party; and (4) 111nt party's j ustiiiable rcliancc on thc n~unicipality's afffirrnntivc undertaking. Q f f ~ v. C'itv oi' h'en York. 69 N.Y.2d 255, 260 (X.1'. 1987): Pascucci. 758 N.Y.S.2d at 56. Whether a special rclat~onship exisls sullicient to confer a corrrsponding duty ilpvt~ the public entity is a qucbtic~n of law for the court. f3,1rdavid v. N.Y.C. Transit .4&. 467 K.Y.S.3d 360. 361 (1st I1ep.t 1953).

In suppot-r ol'her xgurnent Illat thc City affir.rnati\~t.l~ assumed a duty to acr u11 her bchalf. Ms. Ilanicls relics otl rJuscucci. thc sole case cilecl b ) plaintiff i n which a court i'ound a public tnlil! o ~ i e d a spccial dury ta a teacher. 11: P ~ S C I I C C ~ , a teacher was injurcd i+ hen she atteinptcd to breLlk up a light between tnr, studerlls. During thc altercation, the teacher called the school sccrcrary three separatc timcs avcr the intercom to rcql~ost a security guard; all three times. ~ h c secrctarj ansixel-ed ~ h c phone and acknn\r.lcdped the tcachcr's request fi)r help. 758 K . Y . S . U at 5 5 . However: no securit) guard was sent 2nd after the third phone call to the secretary, the teachcr was injured by otlc' o r the figl~ting students. Id. '1-hc appellate court reversed thc trial court's granting u f su~nmary j u d p ~ e n t , finding that "a jury could reasonably find that the school secretary's acknuir.ledgment of plaintill's rcqucst for nssistancc was a11 implicit promise to acl on plainti ftSs behall:" Jd. at 56.

Here, Ms. Daniels neccr attempted lo use t l ~ c scclirity phonc, nor was shc cvcr promised that help was ntl the way. [517] i~ is [herefbrc difficult rcs S ~ C how l'asc~icci helps her casc. I-tle law is clunr that the mcrc instalia~ion of a sccurit!. phunc system does not create 3 spccial duty to teachers. Jacobcllis, 002 N.Y .S.2d a1 878 (finding no special duty owed bq, Ciry lo teachcr just becausc schoul tnaintaincd security intercom system, cvcn lvhere systctn was deSect iw).

Instcad, Ms. Daniels contc-nds that rhc school assumcd a special duty tu protect her in that . . . includ[ing] mela1 detection and it "had already irllplzniented nurnct.ms safcty mechai~is~ns scanning, diwr locks, panic bars, video s u n eiilancc, patrolling school aids, [ h Y PI)] safety agcnts, iind classrnom telrphoncs." (PI. Upp. Rr. at 16-17.) Bur the fbcl that the sct~ool maintained a cornprrhcnsi~~c security systenl. by itself, does no1 crcate a special duty to Ms. Dnnicls; rather, a s discussed above, the C'i t!, is always imm~lnc from suit f ~ 3 r i ~ j u r i e s arising from thc operation of a school sccuritl; s?stem, unlcss the plaintiff can dernonstratc n special dutl,. McEnancs, 700 N.Y . S . 3 at 26 1. 'I'hat prillciple holds p a r t i c ~ ~ i a t l true here. whcrc the Christopher Columbus sccurity systcm did rlol changc one iola - nor did an!' schuol official prumisc to change thc systctt~ - after Ms. Diu~icls joined rhc faculty.

Ms. I>aniels Ii~rlher argucs that thc school "continued to represent . . . during regular mcetings with faculty" thal she "shr>ulcl have no concern for her sal'etj and she wc~ild always be protected." (PI. Opp. Br. at 17.) Hut thc fact that the school discllssed its safcty plan with a roornfi~l of teacl~crli does 1101 establish a spccial duly running from the ( i t v to all attending facul t~ mc~nbers. -- See Vitalr i . C a of New York, 60 N.Y.2d 86 1 : 863 (N.Y. 1983) t finding no special duty owed bj, Girl- to teacher assaulted in school hallway, 011 basis that tcacher was beneficiary of schoni's security plan); Krakoumel-. 629 N.Y.S.2d at 435-36 (finding ~ ~ c i t h e r contract betnecll Board of Educ~~tion and 11t-'P, nor N r n J'ork City Schuol Chancellor's mandate to schools to a school security plan created sl?ccial Jut4 owed by ('ill; to public school tcacher i r n p ! c ~ ~ c r ~ t assaulted outsidc classroom).'

U'ere the court to pa!- at!cntion to Ms. Daniels's affidavit, the r c s u l ~ would not chatlgt., becausc 3 school offici~l!'~ represr~ltntia~l that a schorlt is safe - w i ~ h u u t rnorc - docs rlol creatc a spcc~al duty. Scc Genao, 888 F. Supp. at 508. Irl Genao. ;l ~eacher a t P.S. 194 was assaulted in her classn~um by four in trudcrs. and srrcd t hc Clity for breaching its special duty to protect her. The cvidence established that whcri the teachcr began workirig at thu school, the principal promised her, "llon'l worry. Y o u are it) a good school." Id. at 504. The court nolletheless grantcd the C i t y ' s motion for sutrlmzlry judgment, observing that* ''By making this staletncnt, [the principal] did no1 undertake to pcrfornl an)' particular duties in order to protect plnintilr from a spocific danger." M. a1 508; scc also Wcinstein v. N.Y.C. Bd. of Educ., 51 1 N.Y.S.2d 882, 883 (2d Dep't 1987) (finding nu spccint duty crcatcd where tcacher assaulted in classroom clairncd he relied on sccurily gl~ards \\ hcj wcrc allegrdly absen~ lrom posts during 3ssaull, because plaintiff

' Although Ms. Dunicls docs no1 argiic that Ihc schoul's alleged prornisc to poql [3] sccuritq guard nn the fiji~rth Hoor durlng school Ilours, croated J spccial dul?. I note that such a promise has pntcntial to crcatc such a duty. except that nothing in the rccord indicates that she relied on that prorriise. Ka!her. Ms. LIanjeIs only learned oi'lhis securii: posting aiier she acceptcd [he teaching position. (Danicls 11t't'. ,it 17 1 1-1 7 . )

did not "demons~rate[] that ~ h c security rneasures . . . were intended specifically for [his] benefi~"). Although Ms. Fuentes and hls. Gallatdo's allegcd statcments are nwre promissory in rlature tha~r the Cicnno principal's statements. thcy ~ ~ o n e t h e l c s s fall far short of promising to pcrl'orrn a "particular" d u t ~ in ordcr to prcltczt Ms. l)ar,iels from n "speciilc'' dangcr. Instead, thcsc slalernenls arc. at best, gcneral prc~mises by school oflicials that they lake security seriously ~iricl will continue lo do so. As such. thesc statements do not constitute an rlfjirmative assumption of'durq requircd to crcatc a "sl~ccial relalionship." Cf. Cui'h~, 69 N.Y.2d at 259 (holding special duty was crc,~ted whurc pc~licc assurecl landlurd p1:iitltiCf'thcy \imuuld arrest abusive tcnant "lirst thing it1 the morning." plaintiff decidcd not to move h r ? ~ i I y from d\~cIling based un this slaterncnt, arid family was assaul1t.d by tenan1 thc following cvcning): Sorichctti v. City of N e i l ? York, 65 h'. Y.2d 461, 470-7 1 (N .Y. 1985) (holding spccial duty \tas created nhere police informed infant plaintiff's ~nothcr tllat patrol car would bc srnl to rctrieve hcr daughter, none was s r n l , and infant was seriaus!~. irlj ured by Lither); I)cl.unt! \I. C'nuntr. 01' FCi-k. 455 N. Y.S.2d 887. 892 ( 4 t h Ilep'l 1 982) (holding special duty kibas crealed M-hcre 9 1 1 opcrrrtar responded to cmergrncy plea Sor help with "Okaq: right awaj,:" no police i+erc disp;ltched and viclinl dicd; noting that "it is not the cstablishmcnt of the crncrgcrlc!- call systern . . . whicl? crearcs the dut)." but the ..complaint wrilcr's acceplance of the call, his transmittal u f the complaint . . . and the dispatcher's radio calls lo thc policr car^.").^

' Ms. Ilaniels's co~r~plaint fijrthc~ illuslrales hcr rnisundcrstanding of the special duly doclrinc.. here, Ms. 11;ltlicls contcnds lhat thc rity "creat[ed] a special d u o to teachers in general . . . to afSorJ sccurity iund protection !ism harm. (Complain1 7 1 8 . ) If thy City "owed a spccial duty 1 0 teachers etnplo) cd by said dcfi-ndant" (id. at 11 3 1 ) - LC., all Neiv York City teazhcl+s - thc duly would hardly bc. spccial, "narrotv," or "exceptional." Gcnao, 888 F. Supp. at 508 (spccial dut! occurs in "narrou class ot'oascs"); Sorichctti, 6.i N.Y ,211 a1 468 (special duty only occurs in "extraordinary instances"\.

Recause this court fit~ds thal Ivls. Fuentes and Ms. Gallardo's allcged statements, the Christopher Colun~hus school safety plan. and stalrmcnts madc to the faculty regarding this plan, do not conl;titute affirmative assunlptions vf a special duty by the City, it is not necessary for this court to address 111e rc~naining '-spccia! Jut)'' elements. C. Brench vj'Contmct

hls. Daniels's f i n d cause of action alleges that IIK City breached its contract with the UFl. "by failing to implcinent . . . tht. sul~ool safetl pla11 includecl therein." (C'onlplainl: 25.) In its motion papers, thc Cit? brie tly argues that this claim must bc dismissed becausc '-the L1l;'I' contract docs no1 crclits ~ r l asfinnative duty upon the Uoarcl of Education to provide safety." (DcE. Hr. at 2, 12 11. I . I Perhaps rcoognizing the futilit: oC its claim. Ms. Dnr~icls does not offcr any rebuual to thc City's argument in her oppositiori papers.

N c ~ i - I'urk courts have repeatedly held lhat public entities cannot be held liable to individual teachers for any tilleged hrcaches oL'a contract ht.11\ een thc teachers' union and the C i l j . Sce Genao. 8 5 8 t:. Supp. a1 508 (granting summary judgment o n teacher's brcach of conlract claim and noting. ".Although ~ h c Contract [between Hoard and Teachers ~lssociation j docs require encll principal t o develop a cc~tnprehensivc safclq plan. this rcq~~iremeilt docs not crcatc a speciitl d11t~- to [plaintil'l'rcacherj"); Krahcuicr? 629 N.Y.S.2d at 436 ("nothing in the adoptiutl ur contcnt of'tht. school sccuri~! plan promulgated b ~ , ~ h t . contract 1bet~et.n the Board ul- tducalion and thc LF'l . . . M nrrantcd a iinding that thc contract creatcd srl ai'linnativc 3ut)- upon the Boorrl to provide safety to, or was designcd or inlended solclj- and specially for the benefit of, the plaintiff or other l ' . 1-.'I'. teachers.").

In light of this authoriry, as well as the fact that the otherwise comprchalbive record does not contain a copy of thc allcgccll!, breached contract. Ms. Llaniels's third c:iust. o t'action must also be dismissed.

IV. Conclusion For thd hreguing reasons, dcfcndant Cit!, o j ' h h York's motion Sur summary judgment is granted. This constitutes the dccisjun ~ n d order of tllc court. [laled: June 26; 2007 . -