The motion for summary judgment and dismissal of the complaint by defendant The Forum School or, in the alternative, an order (1) compelling the Administratrix, Karen Begley, to answer the questions which she refused to answer during her examination before trial and (2) staying all further depositions pending the outcome of this motion, are decided as follows.

On July 21, 2004, plaintiffs' deceased, Jonathan Begley, a special education student at The Forum School in Waldwick, New Jersey, was allegedly exposed to a multitude of substances that caused him to suffer an allergic reaction, resulting in respiratory distress and his eventual death. The Forum School (hereinafter "The School") is a private, non-profit school incorporated in the State of New Jersey that caters to developmentally atypical children under the age of 16 who cannot be accommodated in a public school setting. The child's parents are domiciled in New York and enrolled him in school in New Jersey after being unable to locate a similar school in New York City that could accept him. It is undisputed that the deceased had such severe food allergies and other special needs that he was accompanied by a private nurse at all times, and was instructed only to eat food supplied by his parents. The present action has been brought to recover monetary damages for personal injuries and wrongful death allegedly caused by The School's failure, e.g., to exercise reasonable care of the child while under its direction and control.

In moving for summary judgment dismissing the complaint as against it, The School asserts that it is immune from liability under New Jersey's Charitable Immunity Statue (NJSA 2 A:53A-7[a]). That statute provides, in relevant part, that

[n]o nonprofit corporation . . . organized exclusively for . . . educational purposes . . . shall . . . be [*2]liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation . . . where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation . . . provided, however, that such immunity from liability shall not extend to any person who shall suffer damages from the negligence of such corporation . . . where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation (NJSA 2 A:53A-7[a]).

New York State does not recognize this principle of charitable immunity (Bing v Thunig, 2 NY2d 656, 667 [1957]; see Cooney v Osgood Mach., 81 NY2d 66, 74 [1993]; Schultz v Boy Scouts of Am., 65 NY2d 189, 203 [1985]), and it is in reliance on the applicability of New York case law that plaintiffs oppose summary judgment.

It is well settled that the "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant makes a prima facie showing of its entitlement to summary judgment "the burden shifts to the [opposing party] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v City of New York, 49 NY2d 557 [1980]). In reviewing such a motion, the court is enjoined to accept as true the evidence tendered by the nonmoving party, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotations omitted]).

In resolving choice of law questions in negligence cases, New York has long applied an "interest analysis" in an attempt to assess which jurisdiction "has the greatest concern with, or interest in, the specific issue raised in the litigation" (Neumeier v Kuehner, 31 NY2d 121, 127 [1972]). In this regard, a distinction has been drawn "between laws that regulate primary conduct (such as standards of care) and those that allocate losses after the tort occurs (such as vicarious liability rules)" (Cooney v Osgood Mach., 81 NY2d at 72). Generally, it is the law of the state in which the tort occurs that supplies the operative standard of conduct (id.). However, the allocation of losses requires "other factors [to be] taken into consideration, chiefly the parties' domiciles" (id.). Viewed in this context, it would appear that New Jersey's charitable immunity constitutes a "loss-allocation" rule, since its principal effect is not to lower the applicable standard of care, but rather to exempt charitable organizations from responding in damages for ordinary negligence (see Schultz v Boy Scouts of Am., 65 NY2d 189 at 198).

In the Neumeier case, the Court of Appeals set forth three rules for addressing the types of conflicts presented here: (1) if the parties share a domicile, it is the loss-allocation rule of that jurisdiction which controls; (2) where a "true" conflict in domicile exists "and local law favors the respective domiciliary", e.g., where "plaintiff's State, for example, would allocate the loss to defendant but defendant's State would force plaintiff to bear the loss" (Cooney v Osgood, 81 NY2d at 73), it is the law the place of the injury that controls loss-allocation; and (3) in all other split domicile cases, it is again the law of the place of the injury that controls loss-allocation, "but not if it can be shown that displacing [the site] rule will advance the relevant substantive law purposes without impairing the smooth working of the multistate system or producing great [*3]uncertainty for litigants" (Neumeier v Kuehner, 31 NY2d at 128; see Cooney v Osgood Mach., 81 NY2d at 73-74).

In this case, the particular conflict is over the concept of charitable immunity. In New Jersey, a charitable organization such as The Forum School may not be cast in damages for negligence resulting in the death or injury of a student. Accordingly, plaintiffs at bar will not be able to hold The School financially responsible for the loss of their child, notwithstanding any negligence on its part. The law in New York clearly permits the maintenance of a negligence cause of action against charitable organizations, thereby subjecting them to liability for their own negligence. In terms of Neumeier, since New Jersey recognizes charitable immunity (NJSA 2 A:53A-7[a]) and New York does not, the local law favors each domiciliary and a case of "true conflict" is said to exist. Under these circumstances, Neumeier's second rule states that the "place of injury" controls, and therefore plaintiffs are barred from seeking monetary damages for negligence and wrongful death from The School, a charitable organization eligible for immunity under New Jersey Law.

In this regard, it must be noted that New Jersey's involvement in this case is not trivial or coincidental. The record reflects that both the negligence and injury, if any, occurred in New Jersey, and that the infant's parents voluntarily chose to enroll him at The School when they were unable to locate an appropriate institution in New York State. However, this is not the end of the choice of law analysis.

Even under the Neuimeier choice of law rules, the New Jersey law of charitable immunity will not be applied to these New York plaintiffs if it is found to offend the public policy of this State, e.g., to "violate some fundamental principle of justice, some prevalent conception of good morals [or] some deep-rooted tradition of the common weal" (Cooney v Osgood Mach., 81 NY2d at 78, quoting Loucks v Standard Oil Co., 224 NY 99, 111). In any such analysis, it naturally falls to the proponent of the public policy exception to bear a heavy burden that "is not [to be] measured by individual notions of expediency and fairness or by a showing that the foreign law is unreasonable or unwise" but, rather, that the application of the foreign statute is, e.g., repugnant to the legal principles embodied in our State's Constitution, statutes and judicial decisions (Shultz v Boy Scouts of Am., 65 NY2d at 202). "New York law invokes the public policy exception [only] where the proponent [can] show[ ] that (1) sufficient contacts exist between the parties, the occurrence, and New York, and (2) enforcing the foreign law would violate some fundamental principle of justice" (Reale v Herco Inc., 183 AD2d 163, 171 [2d Dept 1992]).

In Rakaric v Croatian Cultural Club (76 AD2d 619 [2d Dept 1980] app dismissed 52 NY2d 1072), the Second Department had an earlier occasion to consider the applicability of New Jersey's charitable immunity statute under the New York public policy exception. In that case, plaintiff, a New York domiciliary, was injured while doing volunteer work for defendant, a New Jersey charitable organization, clearing unimproved property in New Jersey. The court found that defendant had significant contacts with New York inasmuch as it had solicited New York domiciliaries as volunteers, and was very closely associated with a sister corporation domiciled in New York. The court further found that enforcing New Jersey's charitable immunity law would violate a fundamental principle of New York tort law by prohibiting one of its citizens [*4]from recovering damages for personal injuries caused by someone acting negligently on behalf of the nondomiciary defendant (id.).

Similarly, in Scharfman v National Jewish Hosp. & Research Ctr. (122 AD2d 939, 939 [2d Dept 1986]), the same court applied the public policy exception to deny immunity to a Colorado hospital for the negligence of one of its physicians . In that case, a New York infant was injured while undergoing treatment at defendant hospital in Colorado. The Second Department again applied the public policy exception, finding that the hospital had solicited patients in New York, and "that New York ha[d] a significant interest in protecting its residents from . . . [a foreign] law which would bar recovery" for medical malpractice (id. at 941).

In light of the factual similarities between these cases and the case at bar, it is apparent that the same special circumstances exist here to warrant a departure from the second Neumeier rule on public policy grounds. As stated in Rakaric (76 AD2d at 632), "[t]he New York State policy of assuring full recourse in its own courts for injuries sustained by its domiciliaries outweighs any interest New Jersey may have in favoring its charitable institutions with the grace of immunity from liability for tort".

Here, sufficient contacts exist to warrant application of the public policy exception, as plaintiffs are New York domiciliaries and the child's tuition was paid by the New York City Board of Education. In addition, New York clearly has a significant interest in protecting its citizens from unfair and anachronistic foreign statutes that would bar a recovery (see Neumeier v Kuehner, 31 NY2d at 125; Scharfman v National Jewish Hosp. & Research Ctr., 122 AD2d at 940; see also Babcock v Jackson, 12 NY2d 473 [1963]). The State of New York has rejected the concept of charitable immunity for nearly 50 years (see e.g. Bing v Thunig, 2 NY2d 656, supra), and has regularly noted that its arcane and medieval nature is "out of tune" with modern society, as well as the present-day concepts of fairness, justice and fair dealing (see Rakaric v Croatian Cultural Club, 76 AD2d at 625).

Accordingly, it is

ORDERED, that the motion for summary judgment of defendant The Forum School is denied, and it is further,

ORDERED, that plaintiff Administratrix, Karen Begley, is directed to provide answers to all of the unanswered questions propounded at her examination before trial, except those objectionable under section 221.2 of the Uniform Rules for the New York State Trial Courts (22 NYCRR 221.2), and it is further,

ORDERED, that any and all stays in existence pending the determination of this motion are vacated and annulled.

Dated: MAR. 20, 2007

E N T E R,

/s/______________________________

HON. THOMAS P. ALIOTTA, J.S.C [*5]

ASN BY EVE/pt on 3/21/07