Summary
In Puello, the First Department held that a plaintiff must "allege or provide the factual predicate for the special relationship theory in his notice of claim and complaint" (id. citing Blackstock v Board of Educ. of the City of N.Y., 84 AD3d 524 [1st Dept 2011]).
Summary of this case from Hosten v. First Kid Inc.Opinion
2014-06-10
Carlos PUELLO, as Administrator of the Estate of Christina Sanchez, deceased, et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Fotopoulos, Rosenblatt & Green, New York (Dimitrios C. Fotopoulos of counsel), for appellants. Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Bradley M. Wanner of counsel), for respondents.
Fotopoulos, Rosenblatt & Green, New York (Dimitrios C. Fotopoulos of counsel), for appellants. Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Bradley M. Wanner of counsel), for respondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about November 7, 2012, which granted defendants' motion to renew its prior motion to dismiss the complaint, and upon renewal, granted the motion, unanimously affirmed, without costs.
In this action arising out of the murder of plaintiffs' decedent by a former boyfriend, the court properly granted renewal pursuant to CPLR 2221(e)(2), based on the Court of Appeals decision in Valdez v. City of New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 960 N.E.2d 356 (2011), which provided a clarification of the decisional law ( see Roundabout Theatre Co. v. Tishman Realty & Constr. Co., 302 A.D.2d 272, 756 N.Y.S.2d 12 [1st Dept.2003] ). Upon renewal, dismissal of the complaint was proper, since plaintiff failed to allege or provide the factual predicate for the special relationship theory in her notice of claim and complaint ( see Blackstock v. Bd. of Educ. of the City of N.Y., 84 A.D.3d 524, 921 N.Y.S.2d 858 [1st Dept.2011] ). Further, the record establishes that plaintiff cannot prove all of the necessary elements of that theory ( see Valdez, 18 N.Y.3d at 80–81, 936 N.Y.S.2d 587, 960 N.E.2d 356;Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987] ). TOM, J.P., FRIEDMAN, RENWICK, GISCHE, CLARK, JJ., concur.