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CPLR §2221 and 4404(a) …cont

A Bronx Personal Injury Lawyer said that, it is undisputed that plaintiff commenced having seizures which she testified never occurred before the incident involving the altercation between the two students at the school where she worked as a psychologist. Zimmerman also sought treatment at Westchester Medical Center and later commenced treatment with a neurologist to relieve her seizures. Later, because her seizures continued, she consulted with the doctor, at Columbia University, as a result of developing gastrointestinal problems attributable to medications to control her seizures which caused further complications regarding her ongoing seizures.

The issue in this case is whether defendant’s motion, pursuant to CPLR §2221 and 4404(a) to set aside the verdict and remand this action for a new trial on liability and damages should be granted.

Here, defendant refers this Court to several cases which allegedly support its contention that plaintiffs’ complaint be dismissed since plaintiffs failed to establish a breach of a special duty. The plaintiffs in one case sustained personal injury arising from a landlord tenant dispute which had been previously mediated by the police. The Judge writing on behalf of a unanimous court reviewed the determination from the court below which upheld tort claims brought against the City of New York based upon a special relationship between the police department and the plaintiffs who were injured in an altercation with their neighbor. Reversing the Court below, the court held that: “As a general rule, a municipality may not be held liable for injuries resulting from a simple failure to provide police protection”. The exception to this rule has been applied to a narrow class of slip and fall cases where proof of a special relationship is presented between the “municipality and claimant.” The court then determined, based on facts which are significantly different than the facts presented in the cast at bar that plaintiff’s claim must fail.

Thus, while the decision rendered is quite informative, the plaintiffs in the said case who sued the City were not employees of the Board of Education, assigned to work in an atmosphere fraught with danger that manifestly was recognized by the State of New York when the Commission of Education promulgated rules establishing a ratio between a teacher and the number of emotionally disabled students that would compose a class size. Moreover, the Board in the case at bar, implicitly recognized the need to protect its teachers and employees such as plaintiff whose assigned tasks and responsibilities manifestly required the Board to hire security guards to protect its employees such as the plaintiff. The duty of the Board to provide adequate protection was intended to insure the safety of teachers and professional counselors such as plaintiff.

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