Opinion
CA 01-02535
May 3, 2002.
Appeal from an order of Supreme Court, Onondaga County (McCarthy, J.), entered February 21, 2001, which, inter alia, denied the motion of defendants Onondaga-Cortland-Madison Board of Cooperative Educational Services, Stephen Garty, and John Sacket ("John" being a fictitious first name) seeking summary judgment.
THE LAW FIRM OF FRANK W. MILLER, EAST SYRACUSE (FRANK W. MILLER OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (THOMAS N. KAUFMANN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendants Onondaga-Cortland-Madison Board of Cooperative Educational Services, Stephen Garty and John Sacket ("John" being a fictitious first name) and dismissing the complaint against them and as modified the order is affirmed without costs.
Memorandum:
Plaintiffs commenced this action to recover damages for injuries allegedly sustained by their daughter when she was physically restrained by two employees of defendant Onondaga-Cortland-Madison Board of Cooperative Educational Services (BOCES) (collectively, defendants). Supreme Court erred in denying the motion of defendants seeking summary judgment dismissing the complaint against them. "Liability [for tort claims] may not be imposed upon BOCES, a municipal entity, `absent the existence of a special duty together with justifiable reliance thereon by the plaintiff[s] to [their] detriment'" ( Firestein v. Gavlyayev, 282 A.D.2d 430, quoting Feinsilver v. City of New York, 277 A.D.2d 199). Defendants established the absence of a special duty and plaintiffs failed to raise a triable issue of fact ( cf. Wenger v. Goodell, 220 A.D.2d 937, 938-939). In addition, defendants established that their actions were reasonable under the circumstances and plaintiffs failed to raise a triable issue of fact ( cf. Gonzalez v. City of New York, 286 A.D.2d 706, 707-708). We therefore modify the order by granting the motion of defendants and dismissing the complaint against them.