| Nasca v Sgro |
| 2012 NY Slip Op 08703 [101 AD3d 963] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Dean Nasca, Appellant, v Christina Sgro et al.,Respondents, et al., Defendants. |
—[*1] Dennis M. Cohen, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel),for respondents.
In an action, inter alia, for injunctive relief and to recover damages for defamation, theplaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated June17, 2011, which granted the motion of the defendants Christina Sgro, Lisa Allen, AristidesMojica, and County of Suffolk pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff's children attend Academy Street Elementary School in Bayport. Upon theenrollment of each of the plaintiff's children at the school, the plaintiff received a written school"policy," which was apparently distributed to all parents, outlining the procedures for droppingoff and picking up children at the school. This action arises from an incident that occurred onDecember 22, 2009, when the plaintiff allegedly had to wait for 25 minutes in traffic beforebeing able to drop off his children because other parents who were dropping off children werenot following the procedure specified in the written policy. The plaintiff confronted the defendantChristina Sgro, a crossing guard employed by the Suffolk County Police Department (hereinafterthe Department), and told her that he expected her "to do [her] 'friggin' job." The next day, theplaintiff returned to the area, parked his car, and began videotaping Sgro as she worked. Theplaintiff complained to the principal, as well as to Sgro's supervisor, the defendant Lisa Allen,and to the commanding officer of the Department's Fifth Precinct, the defendant AristidesMojica, without receiving, in his view, a satisfactory response. Around the same time, Sgro filedan incident report with the Department alleging that the plaintiff had harassed her by cursing ather and videotaping her. Thereafter, the plaintiff commenced this action, inter alia, seeking tocompel the defendants to enforce the school's drop-off/pick-up procedure, and seeking damagesfor defamation and alleged violations of 42 USC §§ 1983 and 1985. In an orderdated June 17, 2011, the Supreme Court granted the motion of Sgro, Allen, Mojica, and theCounty of Suffolk (hereinafter collectively the movants) pursuant to CPLR 3211 (a) (7) todismiss the complaint insofar as asserted against them. The plaintiff appeals.
In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR3211 (a) (7), the sole criterion is whether from the complaint's "four corners factual allegations[*2]are discerned which taken together manifest any cause ofaction cognizable at law" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Country Pointe at Dix Hills HomeOwners Assn., Inc. v Beechwood Org., 80 AD3d 643, 649 [2011]; Fishberger v Voss, 51 AD3d 627,628 [2008]). Although the facts pleaded are presumed to be true and are to be accorded everyfavorable inference (see Gershon vGoldberg, 30 AD3d 372, 373 [2006]), "bare legal conclusions as well as factual claimsflatly contradicted by the record are not entitled to any such consideration" (Riback v Margulis, 43 AD3d1023, 1023 [2007]; see Baron vGalasso, 83 AD3d 626, 628 [2011]), nor are legal conclusions or factual claims whichare inherently incredible (see Greene vDoral Conference Ctr. Assoc., 18 AD3d 429, 430 [2005]). Whether the complaint willwithstand a subsequent motion for summary judgment, or whether the plaintiff will be able toprove his claim, is irrelevant to the determination of a pre-disclosure CPLR 3211 motion todismiss (see Shaya B. Pac., LLC vWilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34 [2006]). Applying theabove principles here, the Supreme Court properly granted the movants' motion pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them.
"To prevail on a cause of action to recover damages pursuant to 42 USC § 1983against a municipality, the plaintiff must specifically plead and prove (1) an official policy orcustom that (2) causes the claimant to be subjected to (3) a denial of a constitutional right"(Jackson v Police Dept. of City of N.Y., 192 AD2d 641, 642 [1993], cert denied511 US 1004 [1994]; see Monell v New York City Dept. of Social Servs., 436 US 658,690-691 [1978]; Adickes v S. H. Kress & Co., 398 US 144, 167-168 [1970]). A plaintiffmay demonstrate the existence of a policy or custom by showing that the acts of the municipalagent were part of a widespread practice that, although not expressly authorized, constituted acustom or usage of which a supervising policy-maker must have been aware (see Board ofComm'rs of Bryan Cty. v Brown, 520 US 397, 404-406 [1997]; Monell v New York CityDept. of Social Servs., 436 US 658 [1978]). Here, the plaintiff failed to allege that Sgro'salleged misconduct was part of a widespread practice. Further, while he alleged that he hadcomplained to her supervisor and to the commanding officer of the Fifth Precinct, he failed toallege that any final policy-maker had either expressly or implicitly condoned her conduct(see St. Louis v Praprotnik, 485 US 112 [1988]; Ramos v City of New York, 285AD2d 284 [2001]). In addition, the plaintiff failed to adequately allege any facts to support asection 1983 claim based upon an equal protection violation (see Bower Assoc. v Town of Pleasant Val., 2 NY3d 617 [2004]; Sonne v Board of Trustees of Vil. ofSuffern, 67 AD3d 192 [2009]), or the purported inadequate training and supervision ofcrossing guards (see Jackson v Police Dept. of City of N.Y., 192 AD2d 641 [1993]).
With respect to the cause of action sounding in mandamus seeking to compel the defendantsto enforce the school's drop-off/pick-up procedure, mandamus is an extraordinary remedy whichwill lie only to enforce a clear legal right (see Matter of City of Newburgh v Public Empl.Relations Bd. of State of N.Y., 63 NY2d 793 [1984]). The plaintiff's complaint fails to allegesufficient facts to show that he has a clear legal right to the relief he seeks. In particular, whileGeneral Municipal Law § 208-a authorizes a municipality to appoint school crossingguards who have the authority to enforce the traffic laws on public streets (see People vJennings, 75 Misc 2d 408 [1973]), the plaintiff seeks the enforcement of a school'sdrop-off/pick-up procedure on school property.
With respect to his cause of action alleging defamation, the plaintiff has failed to allege thathe suffered any special damages (see Liberman v Gelstein, 80 NY2d 429 [1992];Boyle v Stiefel Labs., 204 AD2d 872 [1994]; Matherson v Marchello, 100 AD2d233 [1984]). Moreover, he failed to allege that Sgro's alleged defamatory statements imputed"any kind of fraud, dishonesty, misconduct, or unfitness in conducting [his] profession" so as toconstitute slander per se (Kotowski vHadley, 38 AD3d 499, 500 [2007] [internal quotation marks omitted]; see Gjonlekajv Sot, 308 AD2d 471 [2003]).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Balkin, Leventhal andHall, JJ., concur.