Meyers v. Board of Education , 688 N.Y.S.2d 623 ( 1999 )

—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated November 3, 1997, as denied their cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed.

The plaintiff, an employee of Brookdale University Hospital, allegedly was assaulted by one of the children in the hospital’s Child Day Treatment Program. The Board of Education provided on-site teachers to give all day instruction to the students of the Child Day Treatment Program. The defendants established that at the time of the alleged assault the infant was not under their custody and control (see, Chainani v Board of Educ., 87 NY2d 370, 378-379). Moreover, absent a special duty to the plaintiff, liability may not be imposed upon a governmental entity for its breach of a duty owed generally to persons in the school system and members of the public (see, Bonner v City of New York, 73 NY2d 930; Vitale v City of New York, 60 NY2d 861, 863; Glick v City of New York, 53 AD2d 528). Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.