SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF …nylawyer.nylj.com/adgifs/decisions14/061614Danziger.pdfbonafide issues of fact and not to delve into or resolve issues of credibility.

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF BRONX------------------------------------------x

SHAMICKA RAMIREZ, IN INFANT BY HER MOTHERAND NATURAL GUARDIAN ANNETTE SANTIAGO, ANDANNETTE SANTIAGO, INDIVIDUALLY,

Plaintiff(s),

- against -

THE CITY OF NEW YORK, NEW YORK CITYDEPARTMENT OF EDUCATION, NEW YORK CITYDEPARTMENT OF EDUCATION OFFICE OF PUPILTRANSPORTATION, IS 174 EUGENE T. MALESKACAMPUS SCHOOL, SHARON DELANEY, BARBARALIOTTA, JANET STURGIS, AND IESHA JONES,RAINBOW TRANSIT, INC.,

Defendant(s).----------------------------------------x

DECISION AND ORDER

Index No: 350312/08

In this action for, inter alia, the negligent supervision

of a student - such negligent supervision resulting in an

alleged accident - defendant RAINBOW TRANSIT, INC. (Rainbow)

moves seeking an order granting it summary judgment as to

plaintiffs’ claims and all cross-claims asserted by co-

defendants. Rainbow avers that summary judgment is warranted

inasmuch as it properly discharged all the obligations imposed

by law - namely safely transporting plaintiff SHAMICKA RAMIREZ

(Ramirez) to school, safely discharging her from its school bus

and transferring her custody to defendant the NEW YORK CITY

DEPARTMENT OF EDUCATION (DOE). Accordingly, Rainbow avers that

it was not negligent and that therefore it cannot be held liable

for Ramirez’ alleged accident, namely, her slip and fall on snow

and water within the premises owned, managed, and maintained by

DOE. Plaintiffs oppose Rainbow’s motion, averring that inasmuch

as a version of the facts borne out by the evidence submitted by

Rainbow establishes that Rainbow not only failed to provide

Ramirez with a safe place to alight from its school bus, but

that Rainbow also discharged her from its school bus despite the

absence of any DOE employees who could assume custody over her,

Rainbow breached the duty of care imposed upon it by law.

Accordingly, plaintiffs aver that Rainbow’s own evidence raises

several material issues of fact which, thus, preclude summary

judgment. DOE and the other defendants oppose Rainbow’s motion

for the very same reasons asserted by plaintiffs.

For the reasons that follow hereinafter, Rainbow’s motion

is hereby denied.

The instant action is for alleged personal injuries

sustained by Ramirez as a result of, inter alia, defendants’

negligence in failing to properly and adequately supervise her.

Specifically, the complaint alleges that on February 14, 2007, a

snowy day, Ramirez, a student at IS 174 - a public school owned,

operated, and maintained by DOE - slipped and fell on snow and

water just inside one of the entrances to IS 174. Plaintiffs

allege that shortly before her alleged fall, Ramirez, who was

afflicted with cerebral palsy and its resulting orthopedic

impairments - including the need to wear leg braces - had been

transported to IS 174 by Rainbow within its school bus, had been

discharged from the bus at a location other than the one

adjacent to the handicap ramp, and was allowed to walk to and

into IS 174 unaided. Thus, the complaint alleges that the

foregoing conduct by Rainbow as well as DOE’s failure provide

personnel to escort and aide Ramirez inside constitutes

negligence, which negligence caused Ramirez’ accident and the

injuries resulting therefrom. More specifically, as against

Rainbow, the complaint alleges that it had been retained by DOE

and defendant the CITY OF NEW YORK (the City) to provide

transportation services to DOE’s students with special needs

pursuant to a written agreement. Rainbow, was required, through

its personnel, to drop Ramirez off at the handicap ramp, aid her

in alighting from its school bus, and only discharge her to the

custody of DOE employees. Plaintiffs allege that on date of the

instant accident, Rainbow acted negligently in that it breached

the duties owed to Ramirez, such breach proximately causing her

accident. As against the DOE, the City, and defendants SHARON

DELANEY (Delaney) - principal at IS 174, BARBARA LIOTTA

(Lioatta) - vice principal at IS 174, JANET STURGIS (Sturgis) -

Ramirez’ teacher at IS 174, and IYESHA JONES (Jones) - Ramirez’

paraprofessional at IS 174, plaintiffs allege that they

negligently failed to abide by Ramirez’ individualized education

plan which required that due to her physical limitations, she be

escorted and aided when entering IS 174. Plaintiffs allege that

the foregoing negligence proximately caused Ramirez’ accident.

Plaintiff ANNETTE SANTIAGO (Santiago) alleges a derivative loss

of services claim, alleging that as Ramirez’ mother, she

sustained damages as a result of defendants’ negligence.

The proponent of a motion for summary judgment carries the

initial burden of tendering sufficient admissible evidence to

demonstrate the absence of a material issue of fact as a matter

of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986];

Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a

defendant seeking summary judgment must establish prima facie

entitlement to such relief as a matter of law by affirmatively

demonstrating, with evidence, the merits of the claim or

defense, and not merely by pointing to gaps in plaintiff’s proof

(Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v

New York City Transit Authority, 304 AD2d 634, 634 [2d Dept

2003]). There is no requirement that the proof be submitted by

affidavit, but rather that all evidence proffered be in

admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept

2001], revd on other grounds Ortiz v City of New York, 67 AD3d

21, 25 [1st Dept 2009]).

Once movant meets his initial burden on summary judgment,

the burden shifts to the opponent who must then produce

sufficient evidence, generally also in admissible form, to

establish the existence of a triable issue of fact (Zuckerman at

562). It is worth noting, however, that while the movant’s

burden to proffer evidence in admissible form is absolute, the

opponent’s burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it isnecessary that the movant establish hiscause of action or defense sufficientlyto warrant the court as a matter of lawin directing summary judgment in hisfavor, and he must do so by the tenderof evidentiary proof in admissibleform. On the other hand, to defeat amotion for summary judgment theopposing party must show factssufficient to require a trial of anyissue of fact. Normally if theopponent is to succeed in defeating asummary judgment motion, he too, mustmake his showing by producingevidentiary proof in admissible form.The rule with respect to defeating amotion for summary judgment, however,is more flexible, for the opposingparty, as contrasted with the movant,may be permitted to demonstrateacceptable excuse for his failure tomeet strict requirement of tender inadmissible form. Whether the excuseoffered will be acceptable must dependon the circumstances in the particularcase

(Friends of Animals v Associated Fur Manufacturers, Inc., 46

NY2d 1065, 1067-1068 [1979] [internal citations omitted]).

Accordingly, generally, if the opponent of a motion for summary

judgment seeks to have the court consider inadmissible evidence,

he must proffer an excuse for failing to submit evidence in

inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st

Dept 1999]).

Moreover, when deciding a summary judgment motion the role

of the Court is to make determinations as to the existence of

bonafide issues of fact and not to delve into or resolve issues

of credibility. As the Court stated in Knepka v Talman (278

AD2d 811, 811 [4th Dept 2000]),

Supreme Court erred in resolving issuesof credibility in granting defendants’motion for summary judgment dismissingthe complaint. Any inconsistenciesbetween the deposition testimony ofplaintiffs and their affidavitssubmitted in opposition to the motionpresent issues for trial

(see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept

1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st

Dept 2001]). Accordingly, the Court’s function when determining

a motion for summary judgment is issue finding not issue

determination (Sillman v Twentieth Century Fox Film Corp., 3

NY2d 395, 404 [1957]). When the proponent of a motion for

summary judgment fails to establish prima facie entititlment to

summary judgment, denial of the motion is required “regardless

of the sufficiency of the opposing papers” (Winegrad v New York

Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Rainbow’s motion is hereby denied insofar as it fails to

establish prima facie entitlement to summary judgment. Contrary

to Rainbow’s assertion, the very evidence it submits in support

of its motion, if credited, establishes that, and could lead a

jury to conclude that Rainbow breached the heightened common law

duty of care it owed Ramirez, such breach proximately causing

her injuries and, thus, establishing Rainbow’s liability.

Specifically, while the evidence does paint diverging facts, one

version establishes that Rainbow, through its employees,

discharged Ramirez, who was physically disabled and had trouble

ambulating, from its bus, on a snowy day, at or near IS 174,

despite the absence of any school personnel willing to assume

custody over her and escort her inside. Despite the foregoing,

the evidence establishes that Rainbow nevertheless discharged

Ramirez from its bus, left her there, divesting itself of

custody over her.

It is well settled, that “[a] common carrier owes a duty to

an alighting passenger to stop at a place where the passenger

may safely disembark and leave the area” (Miller v Fernan,73

NY2d 844, 846 [1988]; Smith v Sherwood, 16 NY3d 130, 133 [2011];

Fagan v Atlantic Coast Line R.R. Co., 220 NY 301, 306 [1917];

Kasper v Metropolitan Transp. Authority Long Island Bus, 90 AD3d

998, 999 [2d Dept 2011]). Thus, any duty owed by a common

carrier to its passengers generally ends upon that passenger’s

exit from the common carrier’s vehicle (Wisoff v County of

Westchester, 296 AD2d 402, 402 [2d Dept 2002] [“duty to the

infant plaintiff as a passenger terminated when the infant

plaintiff alighted safely onto the sidewalk”]; Sigmond v Liberty

Lines Transit, Inc., 261 AD2d 385. 387 [2d Dept 1999]).

However, because it is well settled that the duty of a common

carrier with respect to its passengers also requires it to

exercise “reasonable and commensurate care in view of the

dangers to be apprehended” (Shahzaman by Shahzaman v Green Bus

Lines Co., 214 AD2d 722, 723 [2d Dept 1995]; Fagan at 306; Blye

v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106,

109 [1st Dept 1987]), when the common carrier is aware that a

passenger has limitations, the duty of care is heightened,

requiring that the common carrier exercise “special care and

attention beyond that given to the ordinary passenger [and]

which reasonable prudence and care demand[] for his exemption

from injury” Fagan at 307; Kasper at 999 [“To a disabled

passenger, a common carrier has a duty to use such additional

care or to render such aid for his or her safety and welfare as

is reasonably required by the passenger’s disability and the

existing circumstances, provided that the common carrier’s

employees knew or should reasonably have known of the

passenger’s disability.”]; Kelleher v F.M.E. Auto Leasing Corp.,

192 AD2d 581, 582 [2d Dept 1993] [“The evidence clearly

established the decedent’s intoxication at the time he was

pulled from the cab, and as such, the defendant common carrier

was under a special duty, with regard to the decedent by reason

of his insensible condition of exercising such care, precaution

and aid as were reasonably necessary for his safety, and of

bestowing upon him any special care and attention beyond that

given to the ordinary passenger” (internal quotation marks

omitted).]).

The foregoing distinction is aptly illustrated by

contrasting the facts and holding in Smith to those in Fagan.

In Smith, the Court of Appeals granted the motion by defendants,

the owner and operator of a bus, which sought summary judgment

over the claims asserted by plaintiffs (Smith at 134). In that

case, the infant plaintiff was injured when he was struck by a

car while attempting to cross the street in front of the bus

from which he had just alighted (id. at 133). In granting

summary judgment in favor of defendants, the court held that

under the common law, generally, the only duty owed to a

passenger by a common carrier when a passenger disembarks from

its bus is to provide him/her with a safe place to alight.

Specifically, the court stated that

It has long been the rule that a common

carrier owes a duty to an alightingpassenger to stop at a place where thepassenger may safely disembark andleave the area. Once that occurs, nofurther duty exists, even if thedisembarking passenger is a schoolchildwho attempts to cross a street bypassing in front of a stopped busAlthough plaintiff correctly notes thatthere is a question of fact regardingthe reason why Derek [the plaintiff]was dropped off on the east side ofSouth Salina Street instead of the westside, it is unnecessary to resolve thatfactual issue because Derek exited thebus at a safe location, terminating theduty owed to him by Centro [thedefendant-owner] and Gray [thedefendant-operator]

(id. at 133-134 [internal citations and quotation marks

omitted]). Contrariwise, in Fagan the Court of Appeals upheld a

jury verdict in favor of plaintiffs, which found defendant, a

railroad company, liable for the death of deceased plaintiff

(Fagan at 313). In that case, deceased plaintiff was visibly

intoxicated when he boarded defendant’s train and asked that he

be dropped off at a stop near his home (id. at 305). Upon

reaching his stop, defendant’s employee escorted deceased

plaintiff off the train, sat him down at the train depot and

left him there (id.). The next morning, deceased plaintiff was

found dead on the tracks near the depot and it appeared that he

had been run over by several trains (id.). In rendering

judgment in plaintiff’s favor, the court noted that a common

carrier’s obligation is not limited to providing a passenger

with a safe place to alight its vehicle, but that additionaly,

[t]he defendant [a common carrier] wasunder the special duty, with regard tothe intestate by reason of hisinsensible condition, known to theconductor, of exercising such care,precaution and aid as were reasonablynecessary for his safety, and ofbestowing upon him any special care andattention beyond that given to theordinary passenger which reasonableprudence and care demanded for hisexemption from injury. The care whichit was bound to exercise with respectto his safety would have reference tohis known condition and the situationas a whole

(id. at 307). Thus the court reasoned that by reason of

deceased plaintiff’s apparent intoxication defendant had

additional responsibilities to a disembarking passenger and in

addition to the

the general duty to stop at Carson[deceased plaintiff’s stop] for a timereasonably sufficient to enable thepassenger to alight, at a place so thathe could, using reasonable care, alightsafely and pass by a way reasonablyapparent, accessible and safe to thedepot at Carson, or a designated andproper place, and thence from theproperty of the defendant; or, in theabsence of such a way, to takereasonable and proper precautions toprotect him and make safe his passingfrom the place of alighting to thedepot or an appointed exit from itsproperty. It was [also] bound toexercise reasonable and commensuratecare in view of the dangers to beapprehended. The relation of passenger

and carrier does not, under ordinaryconditions, terminate until thepassenger has had a reasonableopportunity to safely alight and passfrom the station premises of the carrier

(id. at 306-307 [internal citations omitted]). Essentially, the

court held that deceased plaintiff’s intoxication gave rise to

heightened duty of care requiring the common carrier to guard

against foreseeable injury to it passenger. In Fagan, deceased

plaintiff’s resulting demise was, in the court’s view, readily

foreseeable inasmuch as

The depot was a small, one-story framebuilding and was open that night untilmidnight. In it was a telegraph officein which two small oil lamps wereburning. Outside of it no lamp or lightwas burning. The evidence does notdisclose that a person sitting wherethe intestate was could see any windowor light within it. Between theintestate and the depot was noplatform, walk, road or pathway. Therewas the siding track, so filled in, inparts, that wagons could pass over oralong it. Carson was a hamlet,scarcely more than a clearing inwoodland with a few scatteredbuildings, or the crossing of arailroad by a country highway. Theintestate had lived there through theseven or eight months last prior to hisdeath. There was no evidence that aperson seated as he was could seeanywhere a light or a lighted window.After the intestate was assisted fromthe train and before he was discovered,defendant's trains had passed upon thetrack as follows: South-bound trains atnine o'clock and thirty-five minutes

and eleven o'clock and thirty-fiveminutes P.M., and two o'clock and tenminutes, two o'clock and forty-threeminutes and seven o'clock and twenty-two minutes A.M.; north-bound trains,three o'clock and forty-two minutes,four o'clock and thirty-eight minutes,six o'clock and thirty-three minutesA.M.

(id. at 305). In sum, the court in Fagan held that given

deceased plaintiff’s intoxication, the complete absence of

anyone at the depot to aid him - or more specifically, to

prevent him from doing anything to hurt himself, and the absence

of light, his death, and particularly one occasioned by trains

who defendant knew would pass through the depot, was foreseeable

and such death against which, defendant should have guarded.

Here, a review of Rainbow’s evidence, namely, plaintiff

Santiago’s deposition testimony, a copy of the same’s transcript

which Rainbow submits, establishes that Ramirez was born with

cerebral palsy and as a result, her mobility, particularly from

the waist-down was severely limited. After many surgeries, the

last of which was in 2005, Ramirez was able to ambulate

unassisted, but still required braces to help her with her

balance. Because of her cerebral palsy, while a student at IS

174, Ramirez required transportation to and from her home and IS

174, such transportation was accomplished via a specially

equipped bus; namely, one that had a ramp so as to accommodate

handicapped individuals. Because, Ramirez also had difficulty

walking, even with her braces, she also required the assistance

of a paraprofessional to aid her and meet her needs. Prior to

attending IS 174, it was Santiago’s understanding that Ramirez

would be dropped off by the bus at the school’s main entrance,

which had a handicap ramp. On February 14, 2007, Santiago

walked Ramirez down from her apartment and to the bus operated

by Rainbow where she handed Ramirez off to the bus matrons on

the bus. The bus matrons assisted Ramirez on to the bus and

drove her to school. Thereafter, Santiago received a call from

the school and learned that Ramirez had been involved in an

accident. When Santiago escorted Ramirez down to the bus it was

snowing heavily.

Ramirez’ testimony at both her deposition and 50-h hearing

- the transcripts of which, Rainbow submits - establishes that

on February 14, 2007, she was escorted by her mother down from

her apartment and down to Rainbow’s bus, which bus, would

transport her to school. Ramirez was helped on to the bus by

one of the matrons and was, thereafter, transported to school.

The weather was inclement in that it was snowing and sleeting.

Upon arriving at IS 174, Ramirez, as always, was dropped off at

an entrance a block away from the main entrance, which had a

handicap ramp. As was often the case, Jones, her

paraprofessional was not there to help off the bus, and she was,

thus, dropped off near the sidewalk, on the road, and in between

two cars and left alone. While Gathers, another

paraprofessional, was at or near the area where Ramirez had been

or was being dropped off, she denied Ramirez’ request that she

help her into the school From that point, the nearest entrance

providing access to IS 174, required Ramirez to walk down two

steps and then climb another. Accessing the school from this

entrance “proved difficult for Ramirez, who testified that she

“had to hold on to stuff, but it wasn’t really securing me, so

like, I’d like, I would walk stairs by myself, and, like, I was

afraid [sic].” Once she alighted from the bus, Ramirez

proceeded to walk through snow, up the sidewalk and into the

school. Shortly, thereafter, once inside, she slipped and fell

on snow and water. On the date of this accident, Ramirez was

wearing her leg braces, since they improved her balance.

Acela Perez (Perez), whose deposition transcript is also

submitted by Rainbow, testified that on February 14, 2007, she

was employed by Rainbow and transported handicapped students to

and from schools via buses. Perez testified that prior to

February 17, 2007, she had been transporting Ramirez to and from

school. She recalled that Ramirez had difficulty walking

insofar as she lacked balance. Perez was aware that she could

never leave Ramirez alone, that once at IS 174, Ramirez had to

be left with a paraprofessional, and that Ramirez required

assistance getting on and off the bus. Once at school, Perez

and/or the other Rainbow employee “wouldn’t bring [Ramirez] down

until the para is there, until she comes out [sic],” who would

then escort Ramirez inside. While acknowledging that it would

have been better practice to drop Ramirez off at the school’s

main entrance, Perez testified that they would drop her off at

the rear of the school insofar as she was told by someone she

thought was a school employee that she couldn’t drop Ramirez off

at the main entrance. On February 14, 2007, Perez, upon

arriving at IS 174 helped Ramirez off the bus and handed her to

a paraprofessional present thereat.

Myra Gathers (Gathers), a paraprofessional at IS 174 and

whose deposition transcript Rainbow submits, testified that on

the date Ramirez’ accident she was outside when Ramirez was

dropped off by Rainbow’s bus. Gathers testified that Ramirez

was helped off the bus by the bus matron, at which point,

because there was ice on the sidewalk between the bus and the

school’s entrance, asked the matron to escort Ramirez to the

door. The matron did not help Ramirez to the door and instead

got back on the bus and drove off. Ramirez then proceeded to

walk inside the school. Gather’s was never asked to help or

escort Ramirez inside the school.

While Rainbow submits several other deposition transcripts

and documentary evidence, it is clear from the foregoing

testimony that Rainbow fails to meet its burden of establishing

prima facie entitlement to summary judgment. Specifically, the

foregoing version of Rainbow’s evidence, when read together,

raises material issues of fact sufficient to preclude summary

judgment. More importantly, this version, if credited, could

lead a jury, at trial, to conclude that Rainbow was negligent

and that its negligence was a, if not the proximate cause of

Ramirez’ accident.

As noted above, generally, the only duty owed by Rainbow, a

common carrier, to a passenger alighting from its bus is to stop

at a place where the passenger may safely disembark (Miller at

846; Smith at 133; Fagan at 306; Kasper at 999). However, the

duty of a common carrier with respect to its passengers also

requires it to exercise reasonable and commensurate care in view

of the dangers to be apprehended (Shahzaman at 723; Fagan at

306; Blye at 109), such that when the common carrier is aware

that a passenger has limitations, the duty of care is

heightened, requiring that the common carrier exercise “special

care and attention beyond that given to the ordinary passenger

[and] which reasonable prudence and care demand[] for his

exemption from injury” (Fagan at 307; Kasper at 999). Here,

while Perez’ testimony, if credited, evinces that Rainbow

fulfilled its heightened duty of care to Ramirez by discharging

her at her school and to the custody of a paraprofessional, the

testimony proffered by Ramirez and Gathers is sharply at odds

with Perez’ testimony. Specifically, their testimony establishes

that despite Ramirez’ obvious handicap, namely cerebral palsy,

which caused difficulty with her balance and ambulation, she was

nevertheless dropped off at IS 174 by Rainbow’s bus on a very

snowy day and a block away from the school’s handicap entrance.

She was then left there either despite the refusal by Gathers -

the only paraprofessional present - to assume custody over her

or despite Gathers’ request that Rainbow’s employees help and

escort Ramirez to the school’s entrance and said employess’

refusal. Portions of Perez’ testimony further establishes that

the foregoing occurred despite Rainbow’s knowledge that Ramirez

had difficulty ambulating, such that she not only needed help

getting on and off the bus, but was never to be left alone. In

fact, Perez testified that she would only discharge Ramirez from

Rainbow’s bus to the custody of a paraprofessional.

The evidence, thus, establishes that because Ramirez was

visibly handicapped with balance and ambulation issues,

Rainbow’s duty to her was heightened, requiring that it exercise

reasonable and commensurate care in view of the dangers to be

apprehended. The foregoing facts, therefore, establish

liability against Rainbow under this heightened duty of care

because they demonstrate that (1) despite Rainbow’s knowledge

that Ramirez had difficulty ambulating, Ramirez was nevertheless

discharged from Rainbow’s bus without a paraprofessional present

who could and did assume her custody; and (2) Rainbow discharged

her in an area in inclement weather where she would have to

traverse both snow and steps to enter the school. Given these

facts, Rainbow can hardly nor credibly argue that it did not

reasonably apprehend - in other words, that is was unforeseeable

- that its actions would result Ramirez’ fall - the likes of

which did occur and which precipitated the instant suit.

Accordingly, because Rainbow’s own evidence establishes

liability against it, questions of fact exist, precluding

summary judgment in its favor.

Since Rainbow fails to meet its burden, the Court need not

address the sufficiency of the opposition papers submitted by

the other parties (Winegrad at 853).

Notably, whether by design or neglect, Rainbow fails to

discuss any of the law relevant to its liability. Instead, its

submission is replete with the law governing the liability of

the other defendants, namely the school and its employees. It

is certainly true, as noted by Rainbow, that “[s]chools are

under a duty to adequately supervise the students in their

charge and they will be held liable for foreseeable injuries

proximately related to the absence of adequate supervision”

(Mirand v City of New York, 84 NY2d 44, 49 [1994]; Doe v Rohan,

17 AD3d 509, 511 [2d Dept 2005]; Doe v Orange-Ulster Bd. of

Coop. Educ. Servs., 4 AD3d 387, 388 [2004]), and that such duty

derives from the simple fact that a school, in assuming physical

custody and control over its students, effectively takes the

place of parents and guardians (Mirand at 49; Pratt v Robinson,

39 NY2d 554, 560 [1976] [“The duty owed by a school to its

students, however, stems from the fact of its physical custody

over them. As the Restatement puts it, by taking custody of the

child, the school has deprived the child of the protection of

his parents or guardian. Therefore, the actor who takes custody

of a child is properly required to give him the protection which

the custody or the manner in which it is taken has deprived him.

The school's duty is thus coextensive with and concomitant to

its physical custody of and control over the child. When that

custody ceases because the child has passed out of the orbit of

its authority in such a way that the parent is perfectly free to

reassume control over the child's protection, the school's

custodial duty also ceases.” (internal citation and quotation

marks omitted)]). However, while the school’s liability, if

any, hinges on the foregoing body of law, Rainbow’s liability

does not. Moreover, and more importantly, here, whether the

other defendants are liable to plaintiffs is not dispositive,

doesn’t preclude Rainbow’s joint and severable liability, and,

therefore, certainly doesn’t avail Rainbow.

It is well settled that there can be more than one

proximate cause to an accident (Rodriguez v Klein, 116 AD3d 939,

939 [2d Dept 2014; Hagensen v Ferro, Kuba, Mangano, Skylar,

Gacovino & Lake, P.C., 108 AD3d 410, 411 [1st Dept 2013]). Thus,

a defendant seeking summary judgment on grounds that it did not

proximately cause an accident must establish that its negligence

did not cause the accident (Avina v Verburg, 47 AD3d 1188, 1189

[3d Dept 2008]). However, where varying inferences as to

causation are possible, resolution of the issue of proximate

cause is a question for the jury (Ernest v Red Creek Cent.

School Dist., 93 NY2d 664, 674 [1999]). Here, rather than

exclude Rainbow’s negligence as the proximate cause of Ramirez’

accident, the evidence does just the opposite. Accordingly on

the issue of proximate causation, the evidence is far from

undisputed such that this Court will not endeavor to resolve

that issue as a matter of law (Rivera v City of New York, 11

NY2d 856, 857 [1962] [“Where the evidence as to the cause of the

accident which injured plaintiff is undisputed, the question as

to whether any act or omission of the defendant was a proximate

cause thereof is one for the court and not for the jury.”]). It

is hereby

ORDERED that Rainbow serve a copy of this Decision and

Order with Notice of Entry upon all parties within thirty (30)

days hereof.

This constitutes this Court’s decision and Order.

Dated : June 10, 2014

Bronx, New York

_________________________

Mitchell J. Danziger,ASCJ