Opinion
6834 Index 21034/06
06-07-2018
GENESIS R., an Infant Over the Age of Fourteen Years, etc., et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, Defendant, New York City Department of Education, Defendant–Respondent.
The Orlow Firm, Flushing (Thomas P. Murphy of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Mackenzie Fillow of counsel), for respondent.
The Orlow Firm, Flushing (Thomas P. Murphy of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Mackenzie Fillow of counsel), for respondent.
Renwick, J.P., Richter, Webber, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about March 7, 2017, which insofar as appealed from, granted the motion of defendant New York City Department of Education (DOE) to vacate its default, and upon vacatur, granted DOE's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
The court providently exercised its discretion in vacating DOE's default based on law office failure (see Matter of Rivera v. New York City Dept. of Sanitation, 142 A.D.3d 463, 464, 36 N.Y.S.3d 464 [1st Dept. 2016] ). DOE demonstrated that it was unaware that the motion was scheduled for oral argument, perhaps because it was referred from one Justice to another, and plaintiffs also failed to appear. Moreover, as the motion court recognized, public policy favors resolution of disputes on the merits (see e.g. Harwood v. Chaliha, 291 A.D.2d 234, 737 N.Y.S.2d 359 [1st Dept. 2002] ).
The court also properly concluded that DOE demonstrated a meritorious defense that supported dismissal of the complaint as a matter of law. DOE showed that infant plaintiff's injuries resulted from another student's impulsive and spontaneous act, and that the student had no prior disciplinary history at the school or with plaintiff (see Summer H. v. New York City Dept. of Educ., 19 N.Y.3d 1030, 954 N.Y.S.2d 1, 978 N.E.2d 593 [2012] ; Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994] ). Plaintiff testified that while the student had prior arguments with the teacher and with others, the student never acted out physically in the teacher's classroom or became physical with her.