Reyes v. City of New York

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Price, J.), entered December 27, 1995, which, upon the granting of the respective motions of the New York City Transit Authority and the Board of Education of the City of New York made at the end of the plaintiffs’ opening statement for judgment as a matter of law, is in favor of those defendants dismissing the complaint insofar as asserted against them.

Ordered that the judgment is modified, on the law, by deleting the provision thereof which dismissed the complaint insofar as it is asserted against the defendant New York City Transit Authority; as so modified, the judgment is affirmed, without costs or disbursements, the complaint is reinstated as against the defendant New York City Transit Authority, and the matter is remitted to the Supreme Court, Queens County, for trial.

The plaintiffs commenced this action against, among others, the New York City Transit Authority (hereinafter the Transit *564Authority) and the Board of Education of the City of New York (hereinafter the Board) to recover damages for personal injuries suffered by the infant plaintiffs, high school students, who were stabbed while riding a Transit Authority train. The plaintiffs sought recovery upon the theory that the Transit Authority and the Board owed them a special duty to provide police protection on certain subway train cars during certain hours. This theory was premised upon the creation of a "Safe Passage” program by the New York City Transit Police in conjunction with the Transit Authority and the Board, whereby students were encouraged to ride home in certain designated subway train cars to which police officers would be assigned by the Transit Authority in order to provide for the safety of the students. The Board’s participation in the program consisted of disseminating information about "Safe Passage” to students at schools. Essentially, the infant plaintiffs alleged that they followed the instructions which they received at school regarding the program, but that police protection was not provided by the Transit Authority on the designated train they boarded, thereby leading to the incident in which they were injured. After the plaintiffs’ counsel recited the foregoing theory in his opening statement to the jury and made an additional offer of proof in connection therewith, the Supreme Court granted the motions of the Transit Authority and the Board to dismiss the complaint as against them. We now modify the judgment to reinstate the complaint as against the Transit Authority.

We agree with the plaintiffs that dismissal as against the Transit Authority was improper since the foregoing allegations arguably set forth a tenable claim premised on the existence of a special duty on the part of that defendant. There is a question as to whether a special relationship existed between the Transit Authority and the infant plaintiffs pursuant to which the Transit Authority undertook an obligation to provide adequate police protection for particular students on some of its trains (see generally, Cuffy v City of New York, 69 NY2d 255). Given the limited record, the complaint should not have been dismissed against the Transit Authority at this stage of the action (see, De Vito v Katsch, 157 AD2d 413).

However, the dismissal as against the Board was in all respects proper. The opening statement, pleadings, and other material in the record failed to establish the existence of any special duty on the part of the Board to provide for the protection of the infant plaintiffs while they were passengers on Transit Authority trains. Rather, the Board at most acted as a mere *565conduit in passing along to its students the "Safe Passage” information which it received from the Transit Authority. Since there is no indication of a breach of any duty owed by the Board to the plaintiffs, the dismissal of the complaint as against the Board following the plaintiffs’ opening statement and offer of proof was appropriate (see, Fuller v New York City Bd. of Educ., 206 AD2d 452; McLoughlin v Holy Cross High School, 135 AD2d 513; Perretti v City of New York, 132 AD2d 537).

Our dissenting colleagues’ reliance on Heard v City of New York (82 NY2d 66) is misplaced, since that case in fact supports dismissal of the complaint as to the Board of Education. In this case, like Heard, "[t]he issue is causality—in short, not what defendant could have prevented but what defendant proximately caused by inducing reliance” (Heard v City of New York, supra, at 72). It is clear in this case that the element of safety in the "Safe Passage” program was not to be supplied by the Board of Education, but by the Transit Authority in assigning additional police to certain subway cars. Accordingly, any reliance placed on the announcements by the injured plaintiffs would only be reasonable with respect to the Transit Authority (see, Heard v City of New York, supra, at 74). Ritter, J. P., Copertino and Sullivan, JJ., concur.