The plaintiff’s children attend Academy Street Elementary School in Bayport. Upon the enrollment of each of the plaintiffs children at the school, the plaintiff received a written school “policy,” which was apparently distributed to all parents, outlining the procedures for dropping off and picking up children at the school. This action arises from an incident that occurred on December 22, 2009, when the plaintiff allegedly had to wait for 25 minutes in traffic before being able to drop off his children because other parents who were dropping off children were not following the procedure specified in the written policy. The plaintiff confronted the defendant Christina Sgro, a crossing guard employed by the Suffolk County Police Department (hereinafter the Department), and told her that he expected her “to do [her] ‘friggin’ job.” The next day, the plaintiff returned to the area, parked his car, and began videotaping Sgro as she
In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the sole criterion is whether from the complaint’s “four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Country Pointe at Dix Hills Home Owners Assn., Inc. v Beechwood Org., 80 AD3d 643, 649 [2011]; Fishberger v Voss, 51 AD3d 627, 628 [2008]). Although the facts pleaded are presumed to be true and are to be accorded every favorable inference (see Gershon v Goldberg, 30 AD3d 372, 373 [2006]), “bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (Riback v Margulis, 43 AD3d 1023, 1023 [2007]; see Baron v Galasso, 83 AD3d 626, 628 [2011]), nor are legal conclusions or factual claims which are inherently incredible (see Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 430 [2005]). Whether the complaint will withstand a subsequent motion for summary judgment, or whether the plaintiff will be able to prove his claim, is irrelevant to the determination of a pre-disclosure CPLR 3211 motion to dismiss (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34 [2006]). Applying the above principles here, the Supreme Court properly granted the movants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them.
“To prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality, the plaintiff must specifically plead and prove (1) an official policy or custom that (2) causes the claimant to be subjected to (3) a denial of a constitutional right” (Jackson v Police Dept. of City of N.Y., 192
With respect to the cause of action sounding in mandamus seeking to compel the defendants to enforce the school’s drop-off/pick-up procedure, mandamus is an extraordinary remedy which will lie only to enforce a clear legal right (see Matter of City of Newburgh v Public Empl. Relations Bd. of State of NY, 63 NY2d 793 [1984]). The plaintiffs complaint fails to allege sufficient facts to show that he has a clear legal right to the relief he seeks. In particular, while General Municipal Law § 208-a authorizes a municipality to appoint school crossing guards who have the authority to enforce the traffic laws on public streets (see People v Jennings, 75 Misc 2d 408 [1973]), the plaintiff seeks the enforcement of a school’s drop-off/pick-up procedure on school property.
With respect to his cause of action alleging defamation, the plaintiff has failed to allege that he suffered any special damages (see Liberman v Gelstein, 80 NY2d 429 [1992]; Boyle v Stiefel Labs., 204 AD2d 872 [1994]; Matherson v Marchello, 100 AD2d 233 [1984]). Moreover, he failed to allege that Sgro’s alleged defamatory statements imputed “any kind of fraud, dishonesty, misconduct, or unfitness in conducting [his] profession” so as to constitute slander per se (Kotowski v Hadley, 38 AD3d 499, 500 [2007] [internal quotation marks omitted]; see Gjonlekaj v Sot, 308 AD2d 471 [2003]).
