In this action, plaintiff Rachel Mandelbaum ("Mandelbaum") alleges, inter alia, that the defendants

The City of New York and the New York City Department of Education (collectively "the City Defendants") were negligent in their management, operation and supervision of a school, P.S. 198, in that by their actions they failed to provide adequate protection to Mandelbaum, a first-grade teacher at the school.

The complaint further alleges that as a result of the City Defendants' failure "to protect teachers and students from persons identified with extremely aggressive behavior," Mandelbaum was injured by a first grader who bit her twice, once on each hand, and hit her repeatedly with his notebook.

Her husband, Joshua Mandelbaum, sues for loss of consortium.

The City Defendants now move for summary judgment pursuant to CPLR §3211(c)(7) on the grounds that the complaint fails to state a cause of action. The City Defendants argue that absent a showing of a special relationship between Mandelbaum and the City Defendants, no liability may be imposed upon the City where, as here, a student injured a teacher. [*2]

Plaintiffs cross move for an order pursuant to CPLR §3025(b) granting them leave to supplement or amend their bill of particulars to "include a claim that a special relationship existed" between Mandelbaum and the City Defendants.

Generally, liability may not be imposed upon the City for the breach of a duty to persons in the school system or members of the general public unless a special duty exists. (Vitale v City of New York, 60 NY2d 861 [1983], Moreno v City of New York, 27 AD3d 536 [2006]).

The components of a special relationship which will give rise to a special duty are (1) the assumption by the City through promises or action of an affirmative duty to act on behalf of the plaintiff, (2) knowledge on the part of the City that inaction could lead to harm, (3) some form of direct contact between employees of the City and the plaintiff and (4) justifiable reliance by the plaintiff on this affirmative undertaking (Mastroianni v County of Suffolk, 91 NY2d 198, 203 [1997]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

Plaintiff's status as a teacher and an employee of the City is insufficient in itself to create the special relationship (Firestein v Gavlyayev, 282 AD2d 430 [2d Dept 2001]). Plaintiff argues that her case fits within the "narrow exception to the general rule of no governmental liability" in that the City Defendants breached a special duty owed to her.

Mandelbaum argues that the prior actions of the student and her giving notice to school authorities of those actions met her burden of raising a triable issue of fact as to whether a special duty was owed to her.

A review of plaintiff's testimony at the 50-H hearing and at her examination before trial demonstrates that she has failed to meet her burden.

Plaintiff testified at her 50-H hearing as follows:

Q.What happened a week before or approximately a week before?

A.Approximately. He was throwing objects and having fits.

Q.What do you mean by having fits?

A.Throwing things, verbal, you know, just the verbal things that he was saying, very aggressive. So I needed to move him out of the table group by himself.

Q.What kind of things was he throwing?

A.A desk, objects from his desk as well. He threw a chair and he threw objects from his desk.

Q.Was there anyone in particular who he was directing these objects at?

A.No.

Q.What kind of verbal things was he saying?

A.I can't recall the exact things.

Q.Was anything directed at you, or was it the class or was it both?

A.I don't remember.

Q.Has he been in the class since class started in September?

A.Yes.

Q.Prior to one week before this incident was there any problem with Jaydon?

A.Off and on but nothing that stood out..

Q.What kind of problems?

A.Just following directions, rambunctious, calling out. It was typical, yeah, typical things. I can't recall specific instances.

(See T 10-11 of February 22, 2006 50-H hearing.) [*3]

Mandelbaum testified as follows at her deposition:

Q.Now at any time prior to November 21, 2005, did Jaydon threaten you personally or hit you or shove you personally

A. no.

Q.Other than his general behavior that you already testified to?

A.No.

Q.Did you have any reason to believe that Jaydon would act aggressively towards you in particular?

A.No.

(See T-24 of June 24, 2007 deposition transcript.)

Thus, while the student had a record of disciplinary issues, plaintiff has failed to demonstrate that his prior behavior was directed toward her and has also failed to establish that the City had knowledge that inaction would lead to harm to plaintiff. While it is undisputed that Mandelbaum reported the prior

incident to school officials, nothing in the record demonstrates that the City undertook an affirmative act on behalf of Mandelbaum or that Mandelbaum relied or believed that the City had undertaken such a duty (Mastroianni v County of Suffolk, 91 NY2d 198 [1997]).

As the plaintiff has failed to meet her burden of establishing triable issues of fact that a special relationship was created between herself and the City, the motion of the City Defendants for summary judgment is granted. The cross-motion of the plaintiffs is denied as moot. The Clerk of the Court is directed to enter judgment dismissing the complaint with prejudice.

This constitutes the decision and order of the Court.

E N T E R,

____________________________________

Robert J. Miller

Justice