DECISION

Hector Gonsalo Salinas was a twelve-year-old sixth-grade student at Middle School 201 in the Bronx when a broken locker handle in Classroom No.349 injured his arm, on or about February 2, 2004.

Along with his mother, Catalina Mart�nez, Mr. Salinas is suing both the City of New York ["City"] and the New York City Department of Education ["DOE"] for personal injuries sustained as a result of that accident.

This Court, after review of the motion papers, hereby decides the following:

-Defendants' Motion to Dismiss Plaintiffs' Complaint under CPLR 3211, or in thealternative, for Summary Judgment under CPLR 3212, is DENIED.

I.FACTUAL BACKGROUND

Infant Hector Salinas was injured in Classroom #349 on or about February 2, 2004. See Verified Compl. at �� 33-34. The classroom where the accident occurred had steel lockers, some of which had broken handles. Id. at �� 36-38.

Mr. Salinas's left arm got caught up by one of the broken handles, thereby causing massive injuries to that arm. See Salinas Tr. at p. 11, lines 2-7. At the time of the accident, he was wearing sneakers. When he slipped and fell on sunflower seeds, he hit a chair that caused [*2]him to fall and make contact with the broken handle. Id. at p. 12, lines 23-25; p. 42, lines 12-20; p. 43, lines 3-17; see also Salinas Aff. at �� 3-4.

Mr. Watson was Mr. Salinas's teacher in that class at the time of the accident. See Salinas Tr. at p. 45, lines 4-8. He was aware that the subject locker handle was broken. See Mart�nez Aff. at � 5. In addition, on or about February 3, 2004, fellow student Najheim Brown filed a school report stating that the locker was broken prior to the accident. See Pls.' Opp. at Ex. 8.

Mr. Salinas has two deep lacerations in his left arm which has scarred. See Pls.' Opp. at � 5 and Ex. 4. He filed a Notice of Claim, through counsel, on or about April 27, 2004. See Defs.' Aff. at Ex. A. The Verified Complaint was filed on or about April 26, 2005. Defendants filed this motion on or about August 11, 2010.

Mr. Salinas is currently nineteen years old and lives in Bronx, NY.

II.SUMMARY JUDGMENT MOTIONS AND THEIR HIGH THRESHOLD

One of the recognized purposes of a summary judgment motion is to determine if any material facts exist. Marshall, Bratter, Greene, Allison & Tucker v. Mechner, 53 AD2d 537, 384 NYS2d 787 (App Div, 1st Dept 1976). Furthermore, under CPLR 3212(b), a motion for summary judgment must be supported by affidavit, a copy of its pleadings, and any other available proof. With respect to the affidavit, not only must it have a recitation of material facts, but it must also show that there is no defense to the action, or that the defense is meritless.

Because a motion for summary judgment has an extremely high burden ["as a matter of law"], it is a drastic remedy for any movant to use. Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 (App Ct 1978). It is therefore the movant's burden to produce evidence as would be required in a trial. Oxford Paper Co. v. S.M. Liquidation Co., Inc., 45 Misc2d 612, 614 (Sup Ct, NY County 1965). Lastly, the purpose of the motion court is issue-finding, and not issue-determination. Pirrelli v. Long Island Rail Road, 226 AD2d 166 (App Div, 1st Dept 1996).

In this slip and fall case, genuine issues of material fact exist regarding the extent of Defendants' involvement in this negligence action, and hence, whether Defendants' lack of supervision as well as its failure to keep the school premises safe are substantial factors and therefore the proximate cause of Mr. Salinas's left arm injuries. More specifically, there are two main triable issues: [1] whether the City properly and safely maintained the school premises; and [2] whether Defendants had enough notice of the broken locker handle.

III.BOTH DEFENDANTS ARE JOINTLY AND SEVERALLY LIABLE FOR PLAINTIFF'SLEFT ARM INJURIES

This Court finds that Defendants are not entitled to summary judgment because genuine [*3]issues of material fact exist regarding the extent of both the City's and DOE's involvements.

A.The DOE Is A Proper Party In This Action

Recent caselaw in the First Department has held that the City and DOE are separate, legal entities ^[FN1] under NYC Charter § 521(a) ["Property under board of education; care and control; suits in regard thereto"] the title to all property, real and personal, is vested in the city, but under the care and control of the DOE for purposes of public education, recreation, and other public uses. See Nacipucha v. City of New York, 18 Misc 3d 846 (Sup Ct, Bronx Cty 2008) (noting that City Charter § 521 was not amended). Thus, it logically follows that notices of claim are served directly upon the City for DOE-related matters, and not to the DOE itself.

Here, this lawsuit was properly brought against both the City and the DOE because the City retains title to real property, in which the DOE is involved with the care, custody, control, and safekeeping of the actual schools.

B.The City Is a Real Party In Interest And Remains Jointly And Severally Liable ForPlaintiff's Injuries

With respect to the City, the two questions before this Court are, [1] whether the City may bring a motion for summary judgment based on unpleaded defenses, and [2] whether the City's form denial of the allegations that it owns, controls, manages, and supervises M.S. 201 is sufficient to avoid being deemed an admission.

1.The City's Motion For Summary Judgment Based On Improper Party FailsAs A Matter Of Law

The City, in the instant action, brings a summary judgment motion to have all claims against it dismissed, on the ground that it is an improper party. The status as an improper party, however, was neither raised by the City as an affirmative defense in is Answer, nor by way of an amended Answer. The City, rather, has waited approximately five years and six months before raising the defense of "improper party" in its summary judgment motion.

The rule governing the pleading of affirmative defenses is found in CPLR 3018(b) which first sets forth two alternative definitions of an affirmative defense: the first being "any matter which if not pleaded, would be likely to take the adverse party by surprise; or second, any matter which raises fact issues not appearing on the face of a prior pleading. See Commentary 3018:13.

Plaintiff, in opposition to Defendant's summary judgment motion, contends that after five years of ongoing litigation,^[FN2] it has been caught not only by surprise, but that now fact issues have been raised by the City that do not appear on the face of any prior pleading. The City does not contest Plaintiff's argument that the defense of "improper party" is an affirmative defense that has [*4]to be raised in the Answer or else deemed waived.^[FN3]

The City in the instant matter failed to raise an affirmative defense in its original Answer or amended pleading. As CPLR 3018:22 Practice Commentary points out, "[i]f a particular matter qualifies as an affirmative defense and is not the subject of a 3211(a) motion,^[FN4] it must be included in the Answer or . . . in an amended Answer . . ." because "inherent in the concept of an affirmative defense is that it is the defendant's burden to plead and prove, with the result that a failure to plead it is a waiver."

The fact that the defense of "improper party" is not a listed ground for a 3211(a) motion may explain the City's not bringing said motion. It, however, does not explain why the City failed to plead its affirmative defense in the Answer. The City has nowhere in its moving papers set forth any reasons for its failure to plead its affirmative defense.

This Court is left to conclude, therefore, that the City considers itself not bound by the rules of responsive pleading as governed by CPLR 3018(b). The Court's conclusion is further reinforced by the fact that nowhere in the City's reply papers does it make any attempt at addressing Plaintiff's argument, that the City, through its failure to raise "improper party" as an affirmative defense has waived it. See Pl.'s Opp. at � 4. ^[FN5]

The City, like any other defendant, "must make it a rule to plead all affirmative defenses, promptly and clearly, or . . . move under CPLR 3211(a) on those objections, covered by that provision, and "should not depend either on judicial discretion . . . or on the prospect that the defense can be introduced into the case without having been pleaded . . ." See Practice Commentary 3018:21, 22.

This Court finds that the City's failure to plead in its Answer "improper party" as an affirmative defense has thereby waived it. Having waived its affirmative defense, the City can not now bring a motion for summary judgment based on its unpleaded defense of "improper [*5]party."

Ordinarily, in addition to Section II of this Decision, a defendant's motion for summary judgment must be denied where it is predicated on a ground not pleaded as a defense in the Answer. Rel Commercial Corp. v. Rakofsky, 90 AD2d 541 (App Div, 2nd Dept 1982); Furlo v. Cheek, 20 AD2d 939 (App Div, 3d Dept 1964).

Some courts, however, have held that where a plaintiff has been neither surprised nor prejudiced, summary judgment on an unpleaded defense is appropriate. Darling Inc. v. City of Niagara Falls, 416 NYS2d 122 (App Div, 4th Dept 1979); Greenspan v. Doldorf, 87 AD2d 884 (App Div, 2d Dept 1982).

Here, however, Plaintiff claims that this litigation has been ongoing since 2005, and that the City waited until August 11, 2010, to bring the instant motion for summary judgment based on an unpleaded affirmation defense. Consequently, Plaintiff asserts, that he has been surprised by the City's belated summary judgment motion, and that based on this reason alone, the motion should be denied. See Pl.'s Opp. at � 50. This Court agrees with Plaintiff that the summary judgment motion must be denied, not upon the lapse of time, but does so based upon the City having waived its affirmative defense coupled with the its insufficient responsive pleadings to Plaintiff's Paragraphs 16-21 of its Complaint.

2.The City's Answers Are Deemed A Wrong Form Of Denial

Plaintiff alleges in Paragraphs 16-21 of its Complaint that the City owns, operates, maintains, manages, supervises, or controls M.S. 201. The city answered in its responsive pleading as to each allegation that it denied knowledge or information sufficient to form a belief with respect to the truth of the allegations set forth in Paragraphs 15-25 inclusive.

This form of denial is appropriate "when the defendant has no knowledge of the fact one way or the other." See Practice Commentary CPLR 3018:1(3) ["Denials generally"]. The pleader, however, who has personal knowledge that an allegation is false, must deny it without any qualification. Id. at 1(1).^[FN6]

Here, the City did have knowledge and information sufficient to form a belief with respect to the allegations contained in Paragraphs 16-21 inclusive. With respect to ownership of M.S. 201, the City's own summary judgment motion concedes the fact that it is an "out of possession owner with no contractual or statutory obligation to maintain. See Defs.' Aff. at � 19. [*6]

The City's denial of ownership of M.S. 201, therefore, borders on the frivolous. "A party cannot plead ignorance of a public record to which he has access, and which affords him all the means of information necessary to obtain positive knowledge of the facts. Rochkind v. Perlman, 123 AD 808, 811 (App Div, 2d Dept 1908); see also Island Small Business Inv. Corp. v. Primrose Homes Corp., 33 Misc 2d 140 (Sup Ct, Nassau Cty 1962) (where certain allegations denying matters of public record were sham and frivolous).

Likewise, the City's failure to deny without qualification that it operates, maintains, manages, supervises, or controls M.S. 201 is problematic. This in light of the availability to the City of both the statutory ^[FN7] and case authority ^[FN8] dating back over 100 years that firmly establishes that the City cannot be held liable for the torts of the DOE, school agents, servants, or employees.

"Denials of knowledge or information sufficient to form a belief may be interposed, except as to matters within the defendant's knowledge, which matters if true, should be admitted, and, if not true, directly denied." Duggan v. Lubbin, 219 AD 433 (App Div, 1st Dept 1927).

Furthermore, in Teddy's Drive In Inc., v. Cohen, 54 AD2d 898 (App Div, 2d Dept 1976), the defendant's denial of knowledge or information sufficient to form a belief as to allegations in the complaint that mortgage president informed the defendant of its ownership of property about to be sold was improper since the agent would have had personal knowledge such that it should have been admitted or specifically denied.

Likewise, in Bischoff v. Isadore Holding Corp., 233 AD 682 (App Div, 2d Dept 1931), the "answering defendants denied any knowledge or information sufficient to form a belief as to each allegation contained in �� 4, 6, and 8 is frivolous and ineffective to raise any issue; the defendants were bound to have information of facts within their knowledge and public record."

Here, this Court is not convinced that the City lacked knowledge or sufficient information such that it could not deny without qualification the allegations contained in Paragraphs 16-21 of [*7]the Complaint. Why the City answered in the form that it has, is not for this Court to hazzard a guess.

Whether the City's particular form of denial was a tactical one or merely a result of boilerplate pleading, is irrelevant to this Court's finding that it was the wrong form of denial. Accordingly, the Court now asks the question, "What consequences flow from the use of the wrong form of denial?"

"If the fact alleged is something the court feels the defendant must know first-hand, one way or the other, a denial upon information and belief will not do." See Practice Commentary CPLR 3018:3. The Practice Commentary goes on to point out that "in an instance like that, the allegation purportedly denied will be deemed an admission." Id.; see also Gilberg v. Lennon, 193 AD2d 646 (App Div, 2d Dept 1993) ("to the extent the portions of the answer constitute improper denials, they maybe deemed admissions").

Although this Court finds the City's denial of Paragraphs 16-21 of the Complaint to be in the wrong form, it deems the City to have admitted only the allegation of ownership of M.S. 201 as contained in Paragraph 16.

As set forth in NYC Charter Chapter 521(a), the City is the vested title owner of all public school property. See FN. 7, supra. The City, however, cannot be deemed to have admitted to operating, maintaining, supervising or controlling M.S. 201 as contained in the allegations found in Paragraphs 16-21 of the Complaint. Chapter 521(a) specifically vests that responsibility with the DOE.

For this Court, therefore, to deem the City to have admitted such, would be tantamount to this Court imposing upon the City, obligations � 521(a) states the City does not have. Any deemed admission by this Court would, thus, be rendered a nullity.

Nevertheless, the City's failure to interpose its affirmative defense of improper party in conjunction with its wrong form of denial warrants denial of the City's motion for summary judgment. What happens next in this case is that the case will be returned to the Trial Part where a motion to dismiss after Plaintiff rests or a request for a directed verdict may dispose of the case during trial.

Accordingly, both the City and DOE are jointly and severally liable for Plaintiff's injuries, and as will be explained below, had both actual and constructive notice of the defective locker handle.

IV.DEFENDANTS HAD ENOUGH ACTUAL AND CONSTRUCTIVE NOTICE OF THEBROKEN LOCKER HANDLE

In San Marco et. al v. Village/Town of Mount Kisco, 16 NY3d 111 (App Ct 2010), the Appeals Court held that despite a "written prior notice" statute, the defendant was not shielded from liability because the village's snow removal procedure was an exception to the prior written notice rule, thereby prompting a triable issue of fact whether the village created the dangerous condition. According to the Lippman Court, ". . . [i]t is sensible that the municipality is exempt from liability for injuries on public property unless the municipality knew of the problem." Id.

Although Mr. Salinas's case does not pertain to a slip and fall on black ice or even a [*8]pothole, San Marco can nevertheless be applied here because various people were aware of the broken locker handles in addition to Mr. Salinas: Mr. Thomas [principal], Mr. Watson [schoolteacher], Mrs. Mart�nez, and student Nahjeim Browne. See Salinas Tr. at p. 21, lines 7-16; Mart�nez Tr. at pp. 95-96; and Pls.' Opp. at � 31 and Ex. 8. On the other hand, Mr. Weber, the custodial engineer, attested that he did not find any reports regarding the broken handles. See Weber Tr. at p. 63. Such a discrepancy therefore provokes a material issue of fact to be decided by the fact-finder.

According to Plaintiffs' counsel, Mr. Salinas's situation is likened to the situation found in Levine v. City of New York, 2 NY2d 246, 247-48 (App Ct 1957), where the Appeals Court found that a school-related accident [from a defective iron railing on the city's playground] could reasonably occur as a result of a defective and dangerous condition that existed for a period of time. See Pls.' Opp. at � 35. In support of Plaintiffs' case at hand, Plaintiffs' counsel also relies on Pagan v. Goldberger, 51 AD2d 508, 512 (App Div, 2d Dept 1976), in which the Second Department found that as long as there was a reasonable expectation for an injury to occur given the circumstances [i.e. a defective condition], a causal connection has been established between the injury to the plaintiff and the negligence committed by the defendant. See Pls.' Opp. at � 36.

Thus, the issue of the defective condition of the locker handle and whether there was enough notice given to Defendants is certainly a material issue of fact to be decided by the fact-finder, especially since liability on a slip and fall case requires proof of a dangerous condition and the defendant's actual or constructive knowledge of that condition prior to the fall. Navedo v. 250 Willis Avenue Supermarket, 290 AD2d 246, 247 (App Div, 1st Dept 2002).

Moreover, notice of a defective condition may not be proved by statements made by an employee in the course of employment unless the statement made is within the scope of the employee's employment. Id.

Lastly, the dissent in Valentine v. City of New York underscored that it is a question for the jurors to decide how much time is needed for the city to be reasonably expected to take affirmative action on behalf of the public. See Valentine v. City of New York, 86 AD3d 381, 389 (App Div, 1st Dept 1982) (where the Appellate Division dismissed the complaint because not enough time had passed for the city to take action to make the public ways safe).

Here, Defendants argue that photos taken of the dangerous condition after the incident cannot go to the weight of the condition prior to the incident. See Defs.' Reply at � 3. Photos of the accident site, even taken one day after the accident, are admissible on the question of constructive notice, especially when conditions are substantially the same. Batton v. Elghanayan, 43 NY2d 898, 899-900 (App Ct 1978). Thus, Ms. Mart�nez's taking of the photo a day after her son's accident is admissible on the issue of notice. See Mart�nez Aff. at � 5.

Both the City and the public have become knowledgeable in terms of putting the proper parties "on notice" about dangerous conditions on public premises. The phrase "written notice" also now includes calling 311, or else lodging a 311 complaint via its website to report problems and dangerous conditions pertaining to city-owned property. Thus, Defendant's argument that it had no notice about the broken locker handle fails because the City has already put other methods of notice into place in order to be duly informed of any and all dangerous conditions. Defendants [*9]in this case therefore cannot posit that they were not aware, or did not have enough time, to remedy the dangerous situation.

V.THE PROXIMATE CAUSE OF PLAINTIFF'S INJURIES IS A TRIABLE ISSUE OFFACT

With respect to proximate cause, there can be more than one substantial factor contributing to that proximate cause. Argentina v. Emery World Wide Delivery Corp., 93 NY2d 554 at FN. 2 (App Ct 1999).

Generally, schools are not the insurers of the safety of their students and cannot be held liable for every incident resulting in injury. Garcia v. City of New York and New York City Board of Education, 222 AD2d 192 (App Div, 1st Dept 1996). They are, however, under a duty to adequately supervise their students and are liable for foreseeable injuries which are proximately caused by the absence of such supervision. Id.

Furthermore, as previously mentioned, Plaintiffs' counsel relies on Pagan with respect to the "litmus test" of what the concept of "proximate cause" embodies. See Pls.' Opp. at � 38. According to Pagan, a guideline for "proximate cause" includes the following: [1] status - is there an existing legal relationship between the parties; [2] temporal duration - did the injury occur within a reasonable lapse of time; [3] spatial relation - did the injury occur close or far in distance from the point of the negligent act; [4] foreseeability ^[FN9] - is the negligent act predictable; and [5] public policy - is there an identifiable policy which protects the injured party or precludes liability for that party. Pagan, 51 AD2d at 511-12.

Thus, this Court agrees with Plaintiff's counsel that a child falling as a result of slipping or tripping is a foreseeable event during school hours. See Pls.' Opp. at � 47. Although Mr. Salinas attested that he slipped and fell in the classroom when he walked towards the back of the classroom to warn his fellow classmates to focus on taking the test that Mr. Watson had for them,^[FN10] his unilateral choice to walk along the aisle was not a substantial factor of the accident — rather, it was the protruding chair coupled with the broken locker handle that contributed to Mr. Salinas's accident, which was foreseeable, given the circumstances.

Although Defendants counter that Mr. Salinas failed to produce any testimony about the locker handle, sunflower seeds on the floor, and protruding chair,^[FN11] the very fact that Mr. Salinas, [*10]through counsel, raised triable issues regarding the locker handle and sunflower seeds through admissible affidavits found in their opposition papers, is enough to defeat Defendants' request for summary judgment.

VI.CONCLUSION

In sum, Defendants are jointly and severally liable for Mr. Salinas's left arm injuries because they had adequate, actual notice of the defective locker handle in the classroom where the accident occurred. Furthermore, proximate cause surrounding Mr. Salinas's accident raises a genuine issue of material fact, which is enough to deny Defendants of their entitlement for summary judgment.

WHEREFORE Defendants' motion is DENIED in its entirety.

This constitutes the Decision of this Court.

Dated:March 30,2011____________________________________

Bronx, NYHon. Fernando Tapia, A.J.S.C.

CPLR£3211

CPLR£3212 [*11]

CPLR£3212 (b)

CPLR£3018 (b)

CPLR£3018:22

CPLR£3018 (b)

CPLR£3211 (a)

CPLR£3018:1 (3)

CPLR£3018:3