| Rivera v Board of Educ. of the City of N.Y. |
| 2011 NY Slip Op 02142 [82 AD3d 614] |
| March 24, 2011 |
| Appellate Division, First Department |
| Isabel Rivera, Respondent, v Board of Education of theCity of New York, Appellant. |
—[*1] Gash & Associates, P.C., White Plains (Gary Mitchell Gash of counsel), forrespondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about March 2,2010, which, to the extent appealed from as limited by the briefs, denied as untimely defendant'smotion to dismiss the complaint for failure to state a cause of action, unanimously reversed, onthe law, without costs, and the motion granted. The Clerk is directed to enter judgment indefendant's favor dismissing the complaint.
While defendant's prior motion sought to dismiss either on the pleadings or on summaryjudgment and was denied as premature in light of the need for further discovery (with leave torenew within 120 days after a certain deposition was taken), the instant motion seeks to dismisssolely for failure to state a cause of action. Defendant therefore was not bound to bring themotion within the time imposed by the court for renewal of the summary judgment motion(see CPLR 3211 [e]; Herman v Greenberg, 221 AD2d 251 [1995]). Nor does themotion violate the single motion rule (see CPLR 3211 [e]), since the prior motion wasnot decided on the merits (see generally Ultramar Energy v Chase Manhattan Bank, 191AD2d 86 [1993]; compare Miller v Schreyer, 257 AD2d 358, 361 [1999] ["the issue tobe decided is whether defendants are entitled to a second determination of the identicalquestion"]).
Plaintiff alleges that she was injured while attempting to restrain a disruptive student whomshe had previously asked defendant to remove from her classroom, and that her injuries werecaused by defendant's negligent failure to remove the student and to afford her proper protectionin the classroom. Recognizing that a discretionary government action may not be a basis ofliability, plaintiff argues that, since defendant's director of special education exercised herdiscretion in referring the troubled student for an evaluation, any follow-up action becamemandatory and thus ministerial (seeMcLean v City of New York, 12 NY3d 194, 203 [2009]). This argument is unavailing.The decision to change a student's classroom placement is within the discretion of the Board ofEducation (Brady v Board of Educ. of City of N.Y., 197 AD2d 655 [1993]; Dinardo v City of New York, 13 NY3d872, 877-878 [2009] [Lippman, J., concurring]). Moreover, ministerial actions may be abasis of liability, "but only if they violate a special duty owed to the plaintiff, apart from any dutyto the public in general" (McLean, 12 NY3d at 203). [*2]As plaintiff neither alleged nor testified that defendant assured herthat the student would be removed from her classroom or that she would be provided with anyparticular security there, she has not satisfied the requirement of pleading a special duty owed toher by defendant (see Dinardo, 13 NY3d at 874-875). Concur—Mazzarelli, J.P.,Saxe, Acosta and Freedman, JJ.