| McClain v City of New York |
| 2009 NY Slip Op 06409 [65 AD3d 1020] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Naquan McClain et al., Appellants, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.),dated August 4, 2008, as granted that branch of the defendant's motion which was pursuant toCPLR 3211 (a) (7) to dismiss the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
On a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint, the facts alleged in thecomplaint must be accepted as true, the plaintiff is accorded the benefit of every favorableinference, and the court's function is to determine only whether the facts as alleged fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applyingthese principles, the Supreme Court properly granted that branch of the motion of the defendant,City of New York, which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Althoughthe plaintiffs sought to hold the City vicariously liable for certain allegedly negligent andintentional acts and omissions of certain employees of the New York City Board of Education(hereinafter the Board of Education), there is no basis for holding the City vicariously liable forthe actions of employees of the Board of Education, "an entity separate and distinct from theCity" (Bleiberg v City of NewYork, 43 AD3d 969, 971 [2007]; see Leacock v City of New York, 61 AD3d 827 [2009]; Perez v City of New York, 41 AD3d378, 378-379 [2007]). Prudenti, P.J., Miller, Covello and Austin, JJ., concur.