Cheeseboro v. Peter Ban Bus Lines, Inc. et al

Filing 58

MEMORANDUM & ORDER granting Defendant's 50 Motion for Summary Judgment and denying as moot Plaintiff's 53 Cross Motion in Limine. The Clerk of Court is respectfully requested to enter judgment accordingly and close this case. Ordered by Judge Sandra L. Townes on 5/30/2017. (Attachments: # 1 Exhibit 1) (Barrett, C)

FILED

IN CLERKS OFFICE
U.t IN
COURT E.O.N.Y.

UNITED STATES DISTRICT COURT
F
EASTERN DISTRICT O NEW YORK
--------------------------------------------------------CHAN CHEESEBORO,
-----------

* MAY 30 2017 *
x

Plaintiff,

BROOKLYN OFFICE
MEMORANDUM & ORDER
12-cv-1792 (SLT) (PK)

- against LITTLE RICHIE BUS SERVICE, INC.,
JOSEPH RISITENEAU, BUS DRIVER, and
"JOHN COE" MOTOR VEHICLE DRIVER,
Defendants.

-----------------------x
TOWNES, United States District Judge,
Plaintiff Chan Cheeseboro ("Plaintiff') brings this negligence suit for injuries she
sustained in a motor vehicle accident while riding in a school bus operated by Defendant Little
Richie Bus Service, Inc. ("Defendant")'. Before the Court are Defendant's motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56, and Plaintiffs cross motion in limine
to exclude the report and testimony of Defendant's psychological expert. Because the
undisputed facts establish without question that Defendant violated no duty owed to Plaintiff,
and because the Defendant is in any event immune under state law to Plaintiffs claim,
Defendant's motion for summary judgment (Doc. 50), is GRANTED, Plaintiffs motion in
limine (Doc. 53) is DENIED, and the case is hereby DISMISSED.

I.

BACKGROUND
A. Facts
The following facts are undisputed unless otherwise noted. On or about November 15,

2000, Joseph Risiteneau was operating a school bus owned by Defendant. The school bus was
Joseph Risiteneau, the driver of the bus, has been dismissed from the suit. (Doc. 57.) "John
Coe," the driver of the other vehicle involved in the accident, was never served.

equipped with seat belts. Defendant's employee, Subrattran Corchado, was riding on the bus in
her capacity as a "bus matron". Ms. Corchado testified that, when picking up a child on route,
she will routinely "get out of the bus and the kid will come in, I walk after the kid, take them to
the seat, make sure they put the seat belt on, some cannot do it, I have to do it for them."
(Deposition of Subrattran Corchado ("Corchado Dep."), Feb. 12, 2014, Doc. 50, Ex. H, 10:1418.) At approximately 7:30 a.m. on November 15, 2000, Mr. Risiteneau picked up Plaintiff in
front of her home. Plaintiff was eight years old at the time.
At approximately 8:00 a.m., while the school bus was travelling northbound in the
service lane of Woodhaven Boulevard, a vehicle attempted to enter the service lane of
Woodhaven Boulevard from the main lanes at 101st Avenue, causing an accident with the school
bus. The parties dispute whether or not Plaintiff was wearing a seat belt at the time of the
accident. Plaintiff asserts that as a result of the collision, she "was thrown around in [her] seat,
and was thrown out of the seat unto [sic] the aisle, injuring [her] neck and back." (Pl.'s Mem. of
L. in Opp'n to Def.'s Mot. For Summary Judgment, Doc. 51, Exhibit 2, ¶ 5.) She further asserts
that she "could not have been thrown out of [the] seat into the aisle if [she] had been wearing a
seat belt that was properly fastened." (Id. at ¶ 6.) Ms. Corchado testified that following the
accident she unbuckled the children's seatbelts and escorted them to Jamaica Hospital on another
bus. (Corchado Dep., Feb. 12, 2014, Doc. 50, Ex. H, 16:10-17:7.)
Plaintiff was evaluated at both Jamaica Hospital and Peninsula Hospital on the date of the
accident, and was released. Plaintiff was in pain and missed school for a few days, but sought no
further medical treatment until more than a year later after she moved to North Carolina. (Pl.'s
Resp. to Discovery Demands by Defs. Little Richie Bus Service, Inc. And Joseph Risiteneau,
Bus Driver ("Pl.'s Resp. to Defs.' Interrogatories"); Doc. 50, Ex. C, ¶ 6; Deposition of Chan

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Cheeseboro ("Cheeseboro Dep."); Nov. 11, 2013, Doe. 50, Exhibit D, 41:8-16; 42:3-15.)
Plaintiff alleges that as a result of the accident she "sustained an injury to her spine which has
resulted in scoliosis," a permanent condition. (Pl.'s Resp. to Defs.' Interrogatories, ¶ 17.) She
also alleges that she suffers from a potentially permanent post-traumatic stress disorder. (Id.)
The record contains medical records from Jamaica Hospital on the date of the accident
and from various medical services providers in North Carolina. The parties have also submitted
the following expert reports: Plaintiff's Expert Disclosure of orthopedist Dr. Michael Roback,
M.D., Defendant's Expert Disclosure of orthopedist Dr. Edward Crane, M.D., Defendant's
Expert Disclosure of psychologist Dr. David Masur, Ph.D., and Plaintiffs Expert Report of Dr.
Stephen S. Teich, M.D.. None of the reports are in affidavit form. 2
B. Defendant's Motion for Summary Judgment

Plaintiffs Complaint asserts negligence as her sole cause of action, but both her legal and
factual theories have apparently shifted during the course of discovery. Initially, Plaintiff alleged
in her Complaint that Defendant was negligent for failing to equip the school bus transporting
Plaintiff with seat belts. (See Amended Complaint ("Am. Compl."), Aug. 1, 2012, Doe. 4 at ¶
12("As a result of the negligence of LITTLE RICHIE BUS SERVICE, INC. in failing to equip
the bus in which Plaintiff was traveling with seat belts, [Plaintiffs] injuries were much more
severe than they otherwise would have been.")) Likewise, and in response to Defendant's
2

The Report of Dr. Masur was subsequently incorporated by reference into an affirmation
pursuant to New York Civil Practice Law and Rules ("CPLR") Section 2106 submitted by
Defendant in opposition to Plaintiffs motion to exclude Dr. Masur's report and testimony.
(Mem. of L. in Opp'n to Pl.'s Mot in Limine to Preclude Dr. Masur From Testifying, Doe. 54,
Ex. 2.) CPLR § 2106 permits physicians, osteopaths, or dentists to file an affirmation in New
York State court with the same force and effect as an affidavit; psychologists are not covered by
this section. Pascucci v Wilke, 60 A.D.3d 486, 486 (1st Dept. 2009). More fundamentally,
Defendant's submissions are insufficient because "New York state procedural rules do not apply
here to a federal court sitting in diversity." Allianz Ins. Co. v Lerner, 416 F3d 109, 118 (2d Cir
2005).

discovery demands, Plaintiff reiterated her position that "the defendant['s] negligence consisted
of failing to equip the passenger seats with seat belts." (Pl.'s Resp. to Defs.' Interrogatories, ¶
12.) After discovery disclosed that Defendant's bus was in fact equipped with seatbelts and
Defendant moved for summary judgment on those grounds, Plaintiff asserted a new theory of
negligence in opposing that motion: that Defendant was negligent because Ms. Corchado, the
bus matron, should have ensured that Plaintiff was belted at the time of the accident. (Pl.'s
Mem. of L. in Opp'n to Def.'s Mot. For Summary Judgment, Doc. 51, at 7-10).
Although the parties also dispute whether Plaintiff sustained a "serious injury" and
therefore satisfied threshold damages requirements imposed under New York Insurance Law
Section 5102(d), (see, e.g., id. at 2-6), the Court only addresses the negligence issue because,
even while assuming the presence of a genuine issue of material fact as to whether Plaintiff's
injury was "serious," Defendant is not liable as a matter of law under the doctrines of duty and
immunity for reasons explained below. The Court nevertheless notes that the parties' filings on
whether Plaintiff sustained a "serious injury" are deficient. When a defendant moves for
summary judgment for lack of "serious injury," as Defendants have done here, the Second
Circuit has set forth a burden-shifting scheme that requires defendants to provide evidence in the
form of sworn affidavits from its own physicians, and also requires a plaintiff to produce the
same in response. See Yong Qin Luo v Mikel, 625 173d 772, 776 (2d Cir. 2010). The parties here
have not provided the appropriate affidavits to permit the Court to conduct this analysis. See,
supra, n. 2.

II.

ANALYSIS
A. Standard of Review
Summary judgment is appropriate only when "there is no genuine issue as to any material

fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex
Corp. v. Carett, 477 U.S. 317, 322 (1986); see also Beyer v. County of Nassau, 524 F.3d 160,
163 (2d Cir. 2008). The moving party bears the burden of showing that there is no genuine issue
of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant meets this
burden, the non-movant must set out specific facts showing a genuine issue for trial. Parks Real
Estate Purchasing Group v. St. Paul Fire and Marine Ins., 472 F.3d 33, 41 (2d Cir. 2006). The
non-movant cannot avoid summary judgment "through mere speculation or conjecture" or "by
vaguely asserting the existence of some unspecified disputed material facts." Western World Ins.
Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (internal quotations and citations
omitted). Moreover, "[t]he 'mere existence of a scintilla of evidence' supporting the
nonmovant's case is also insufficient to defeat summary judgment." Nigara Mohawk Power
Corp. v. Jones Chemical, Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at
252). Where the party opposing summary judgment bears the burden of proof at trial, summary
judgment should be granted if the moving party can "point to an absence of evidence to support
an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995).
B. Negligence
As noted above, Plaintiff alleged in her Complaint and repeated in her responses to
Defendant's interrogatories that Defendant was negligent for failing to equip the school bus with
seat belts. (Am. Compl., Aug. 1, 2012, Doe. 4; Pl.'s Resp. to Defs.' Interrogatories, ¶ 12.)
Plaintiff abandoned that theory in briefs and, for the first time in her opposition to Defendant's
Wi

motion for summary judgment, asserts a new theory of negligence—that Defendant is liable for
Ms. Corchado's failure to ensure Plaintiff was properly belted at the time of the accident. As a
preliminary matter, this new argument need not be considered. Lyman v. CSX Transp., Inc., 364
F. App'x 699, 700 (2d Cir. 20 10) (summary order) (district court did not abuse discretion by
refusing to consider plaintiff's new theories of negligence raised in opposition to summary
judgment) (citing Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006)).
Nevertheless, this new theory fails as a matter of law because Ms. Corchado had no clear duty to
ensure Plaintiff was belted at the time of the collision.
"Under New York law, the elements of a negligence claim are: (i) a duty owed to the
plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that
breach." Lombardy. Booz–Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002); see
Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985) (citation omitted). The first element
is integral to any claim: "a duty of reasonable care owed by a tortfeasor to an injured party is
elemental to any recovery in negligence." Palka v. Servicemaster Mgt. Services Corp., 83
N.Y.2d 579, 584 (1994) (citations omitted). "[T]he definition of the existence and scope of an
alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make
prior to submitting anything to fact-finding or jury consideration." Id. To set a duty, Courts will
balance logic, science, and socioeconomic policies. DeAngelis v Lutheran Med. Ctr., 58 N.Y.2d
1053, 1055 (1983). Courts must also keep in mind during the analysis that the legal
consequences of wrongs and exposure to liability must be limited to a "controllable degree."
McCarthy v Olin Corp., 119 F.3d 148, 157 (2d Cir. 1997); Waters v New York City Hous. Auth.,
69 N.Y.2d 225, 229 (1987).

C. School Bus Matron's Duty to Ensure a Student is Belted
1. Defendant Did Not Breach its Duty of Reasonable Care
One way a duty may arise is pursuant to state statute. Under New York Law, violation of
a statute will constitute negligence per se where the statute imposes a specific duty. Elliott v City
of New York, 95 N.Y.2d 730, 734 (2001). Violation of a regulation or administrative rule is
evidence of negligence, but not dispositive. Id. Plaintiff relies on these principles to argue that
specific New York statutes and regulations imposed a duty on Ms. Corchado to ensure Plaintiff
was belted at the time of the accident. However, the statutes and regulations of New York in
place at the time of the accident—including relevant New York City regulations and Code
provisions—have no such effect.
While at the time of the accident New York Vehicle and Traffic Law forbade operation
of a "motor vehicle" unless all back seat passengers under the age of ten were appropriately
belted, school buses were explicitly exempted from this restriction. N.Y.Veh. & Traffic L. §
1229-c(l), (4) (McKinney, 1996) ("motor vehicle'. . . shall not include those vehicles which are
used as school buses"). Except for children under the age of four, who were required to be
restrained in appropriate devices, Id. at ¶ 11, there was at the time, and still is today, no law
requiring student passengers in school buses to be belted while riding.
New York law in place at the time of the accident did, on the other hand, require all
school buses to have seat belts. N.Y. Veh. & Traf. § 383 (5) (McKinney, 1990). Whether
carriers transporting students on school buses were obligated to require use of those seat belts,
however, was left to the discretion of individual boards of education or school district board of
trustees. See N.Y. Educ. Law 3635-a ("A board of education or board of trustees may, in its

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discretion, [adopt a] resolution. . . to provide for the use of seat safety belts on such school buses

No relevant educational board imposes an obligation commensurate with the duty
Plaintiff invokes here. Rather, the Regulation of the Chancellor of the New York City Board of
Education holds schools responsible for teaching special education students rules of riding the
school bus, including the rule to "[k]eep seat belt on until the bus comes to a halt at the school or
home." N.Y.C. Board. Of Educ., Regulation of the Chancellor A-801, §2.II.B.2.g. 3 However,
that provision also places responsibility on parents to advise their children to obey the rule that
"[a]l1 children must be seated on the bus at all times, with a seat belt fastened." Id. at §2.III.D. 1.
Moreover, the regulations specifically list the responsibilities of bus drivers and escorts, none of
which involve the monitoring of seat belt use. The responsibilities include only the following
provisions: 1) "The driver and escort are responsible for monitoring pupil behavior on the bus";
2) "The escort will be responsible for administration of first aid in emergency situations"; 3)
"The escort is required to assist the child from the bus to the front door of the school"; and 4) "If
the child is not met by the parent or otherwise authorized person on the return trip from school,
the driver will notify the garage dispatcher and take the child to the police station. If a parent has
signed a waiver so stating, the driver or escort may wait until the child has entered his or her
home." Id. at § 2.IV. A-D.
Notably, Title 19 of the New York City Administrative Code, Chapter 6, § 19-603 reads
as follows:
a. All buses and other motor vehicles transporting handicapped children to and
from school in the city shall be staffed, in addition to the driver thereof, with an
escort. It shall be the duty and responsibility of such escort to generally

supervise and aid the handicapped children riding such bus; to require each
Available at http://docs.nycenet.eduldocushare/dsweb/Get/Document-39/A-801 .pdf (last
visited on Dec. 26, 2016).
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child to utilize a seat belt or other safety device and to escort the children on
and off each bus to an area of safety. b. The driver of a bus transporting
children to and from school in the city shall not proceed after having halted such
bus to take on or discharge a passenger until he or she has received assurance
from the escort that the children are seated, have fastened the safety belt on the
seat and that it is otherwise safe to proceed.

N.Y.C. Admin. Code § 19-603(a) (1985) (emphasis added). Thus, subsection (a) of this
provision imposes a clear duty on school bus matrons (referred to as escorts in the Code) to
generally supervise and help "handicapped children" 4 passengers and to "require" them to use a
seat belt. Subsection (b) implies matrons should check students' seat belts at every stop in order
to be able to assure the driver that it is safe to proceed, but stops short of imposing a "clear duty"
on the matron, since the object of the subsection's imperative is the driver. Generally, "a
violation of the [New York City] Code may be considered as some evidence of negligence,"
White v. Jeffco W. Properties, Inc., 304 A.D.2d 824, 825 (2nd Dept. 2003). But where a
provision of the New York Administrative Code has its origins in State law, it may be entitled to
statutory treatment. Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481, 489 (2012).
Nevertheless, Plaintiff cannot raise a genuine issue of material fact as to whether
Defendant violated this code provision. Ms. Corchado testified that when picking up a student,
she will "get out of the bus and the kid will come in, I walk after the kid, take them to the seat,
make sure they put the seat belt on, some cannot do it, I have to do it for them." (Corchado Dep.,
Feb. 12, 2014, Doc. 50, Ex. H, 10:14-18.) Ms. Corchado' s testimony of her routine practice
essentially tracks the duty imposed by New York Admin. Code § 19-603 that requires a matron

' Plaintiff has asserted, and Defendant has not contradicted, that Plaintiff was "disabled" at the
time of the accident for the purpose of relevant New York Vehicle and Traffic Laws, discussed
below. (Pl.'s Mem. of L. in Opp'n to Def.'s Mot. For Summary Judgment, Doc. 51, 9.) The
Court assumes this is true for the purpose of this motion. Although the parties do not address
whether Plaintiff was "handicapped" within the meaning of the New York City Code, the Court
will assume she was, since it does not affect the outcome of this analysis.

to escort handicapped children to their seat, and either supervise or assist them to put on their
seat belts. Plaintiff, on the other hand, testified that she has no recollection of putting on a seat
belt or seeing a seat belt on the day of the accident. (Cheeseboro Dep., Nov. 11, 2013, Doc. 50,
Exhibit D, 24:13-18.) In the face of Ms. Corchado's clear testimony, Plaintiffs failure to
remember cannot create an issue of fact sufficient to withstand summary judgment as to whether
Ms. Corchado escorted Plaintiff to her seat and ensured Plaintiff was belted when she boarded
the bus on the day of the accident. Petrunti v. Cablevision, No. 08-CV-2277 (JFB) (AKT), 2009
WL 5214495, at * 11 (E.D.N.Y. Dec. 30, 2009) (where Defendant put forth testimony that
Plaintiff violated company policy on a specific occasion, "Plaintiff's lack of recollection is
insufficient [] to create a triable issue of fact."); Droutman v. New York Blood Or., Inc., 03-CV5384 (DRH) (ARL), 2005 WL 1796120, at *1 n. 2 (E.D.N.Y. July 27, 2005); Lazar's Auto Sales,
Inc. v. Chrysler Fin. Corp., 83 F.Supp.2d 384, 389 (S.D.N.Y.2000) ("[plaintiffs] failure of
recollection does not suffice to raise an issue of fact in the face of [the defendant's] clear
recollection.") Thus, there is no issue of material fact and Defendant did not violate the clear
duty established by New York City Admin. Code § 19-603.
To summarize, the applicable New York State and City statutes and regulations impose
no duty of care on bus operators or matrons to ensure students are belted at every moment they
are being transported, which is essentially the standard of care Plaintiff proposes and which this
Court would have to impose for Plaintiff to succeed on her claim. At most, the applicable
statutes and regulations require a matron to escort disabled children to their seats and either
supervise or aid the children to fasten their seatbelts. See N.Y.C. Admin. Code § 19-603(a)
(1985). Accordingly, Plaintiff cannot prevail because she has provided no evidence that
Corchado or any other of Defendant's agents breached this standard.

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Common law, logic, and socioeconomic policy support and confine the limited scope of
this duty. Although "a passenger has no independent legal duty to insure that a fellow passenger
in the vehicle is restrained by a seat belt," a school bust matron is different from a fellow
passenger. Horan v. Brown, 43 A.D.3d 608, 609 (3d Dept. 2007) (citing Thurel v. Varghese, 207
A.D.2d 220, 223 (2d Dept. 1995)). Thus, under common law, those transporting students on a
school bus have a duty to take reasonable measures for the students' protection. See Sindle v.
New York City Tr. Auth., 33 N.Y.2d 293, 297 (1973). Indeed, a bus operator has responsibility
for the welfare of the student passengers, such that it may even be said there is a special relation
requiring the bus operator or its employees to anticipate dangers posed by third parties and to
take reasonable precautionary measures. See Pratt v Robinson, 39 N.Y.2d 554, 560 (1976);
Restatement (Second) of Torts § 315 (1965).
Where a bus is equipped with seat belts, logic and reason dictate that reasonable
measures of a matron to protect the students include ensuring all students are belted at the time
they board the bus. This may well require supervision of those students who can belt
themselves, and assistance for those who cannot not attach the buckles on their own.
Reasonable measures would not include requiring the matron to ensure that each child is
belted at every moment of the ride. Such a requirement would be wholly impractical for a
number of reasons. First, while the matron is checking the belts of students at the back of the
bus, students at the front of the bus could become unbelted. Second, requiring the matron to
move about the bus and continually monitor each student while the bus is in motion would put
the matron herself at risk of being injured. Third, requiring a matron to ensure that each child is
belted at every moment of the ride would create resource problems for school districts. It would
require the hiring of extra matrons for larger buses, and may increase ride times to accommodate

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continuous belt checking. Fourth, such a duty would be inconsistent with New York's policy of
limiting tort liability to a "controllable degree." See McCarthy, 119 F.3d at 157, supra.
Imposing such a duty would open the door to a flood of suits based on failure to monitor seat belt
use that the State has already sought to curtail by providing statutory immunity to bus operators
and their employees for liability arising solely out of a child's failure to wear a seat belt on a
school bus. New York Educ. Law § 38 13(4). Thus, the Court declines to accept Plaintiffs
proposed duty of care.
Normally, the Court would set the precise scope of the applicable duty of care, but such a
determination is not necessary in this case. Plaintiff has failed to raise an issue of fact as to
whether Defendant complied with the applicable statutes and regulations, including New York
City Admin Code § 19-603.
2. Defendant is Immune from Liability
Summary Judgment must also be entered in favor of Defendant because it is immune
from liability for Plaintiffs negligence claim under state law. New York Education Law Section
3813(4) ("§3813(4)") provides as follows:
4. In any action for personal injuries by a passenger on a school bus
against a school district, school bus operator under contract with a school
district, or any agent or employee of a district or operator (including, but not
limited to, bus drivers, matrons, teachers serving as chaperones and
volunteers) no such person shall be held liable solely because the injured
party was not wearing a seat safety belt; provided, however, that nothing
contained herein shall be construed to grant immunity from liability for failure to:
(a) maintain in operating order any equipment required by statute, rule or
regulation;
(b) comply with applicable statutes, rules or regulations.
N.Y. Educ. Law § 38 13(4) (McKinney, 2015) (emphasis added). The plain language of §
3813 (4) thus immunizes school bus operators (and their agents and employees, including bus
The current version of N.Y. Educ. Law § 38 13(4) has been in effect since 1996.
12

matrons) from personal injury claims brought by an injured student on the sole basis that the
student was not wearing a seat belt. See O'Connor v. Mahopac Cent. School Dist., 259 AD2d
530, 531 (2d Dept. 1999).

Nevertheless, Plaintiff argues that Defendant can be liable despite the immunity provided
by § 3813(4) for bus operators and matrons because of the exception for failure to comply with
applicable statutes, rules or regulations as provided by § 3813(4)(b). Specifically, Plaintiff
argues Defendant was negligent for failing to comply with Title 8 of the New York
Comprehensive Codes, Rules and Regulations, Section 156.3(g) ("8 N.Y.C.R.R. 156.3(g)"),
which relates to the training of students on the proper use of seat belts, and New York Vehicle
and Traffic Law Section 1229-d ("S 1229-d"), which requires the Commissioner of Education to
promulgate rules for the training of school bus matrons who have care of disabled children. This
argument fails on a plain reading of the cited provisions because Defendant could not have
violated either 8 N.Y.C.R.R. 156.3(g) or § 1229-d.
First, Defendant did not fail to comply with 8 N.Y.C.R.R. 156.3(g), which creates a duty
for the school district to "insure that all pupils who are transported on any school bus owned,
leased or contracted for by the district or board of cooperative educational services shall receive
instruction on the use of seat safety belts." 6 This regulation does not impose any duty on school
bus operators or on school bus matrons whatsoever; it creates a duty only for the school district,
which is not a party to this litigation. Hence, Defendant could not, vicariously or otherwise, have
"failed to comply" with this regulation.
Second, Defendant did not fail to comply with § 1229-d, the current version of which
requires the commissioner of education to promulgate rules "requiring that every school bus
6

In the version of 8 N.Y.C.R.R. 156.3 in effect at the time of the accident, this provision was at
subsection (i). 8 N.Y.C.R.R. 156.3 (McKinney, 1997).
13

attendant serving pupils with a disabling condition receive school bus safety training and
instruction relating to the special needs of such pupils," including "guidance on the proper
techniques for assisting disabled students in entering and exiting the school bus," as well as
training for health emergencies or other emergency situations. N.Y.Veh. & Traffic Law § 1229d (McKinney, 2013). Plaintiff argues that Defendant never provided Ms. Corchado with the
training mandated under this provision (promulgated at 8 N.Y.C.R.R. 1 56.3 (c)(5) 7), and thereby
violated this provision. Even assuming the statute and corresponding regulation (neither of
which make any reference to seat belts) covered training on seat belts, Plaintiff overlooks that the
version of the statute in effect at the time of the accident did not have any provision for the
training of school bus attendants whatsoever. N.Y.Veh. & Traffic Law § 1229-d (McKinney,
1985). Nor did the corresponding regulation which was then in effect. See 8 N.Y.C.R.R. 156.3
(McKinney, 1997) (attached as exhibit 1 to this Memorandum and Order). Thus, Defendant
could not have "failed to comply" with the mandated training, which was not mandated at the
time the accident occurred.
Because Defendant clearly did not "fail to comply" with either 8 N.Y.C.R.R. 156.3(g) or
§ 1229-d, Plaintiff's argument that Defendant is not entitled to the immunity provided by N.Y.
Education Law § 3813(4) fails. Thus, not only did the New York statutes and regulations cited
by Plaintiff not impose a clear duty on Ms. Corchado to ensure Plaintiff was properly belted at
the time of the accident, New York law in fact immunized Defendant from liability for such a
The training provisions require bus monitors and attendants to receive three hours of instruction
including but not limited to "school bus safety practices, child management techniques, and the
proper techniques for assisting children to safely embark and disembark a school bus." Those
transporting students with a "disabling condition" must also receive instruction "including, but
not limited to, the proper techniques for assisting disabled students in entering and exiting the
school bus." Such training must have occurred by July 1, 2004 for monitors or attendants
employed as of July 1, 2003. Monitors or attendants hired after July 1, 2003 must receive
training before assuming their duties.
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claim, and Plaintiff has failed to raise a triable issue of fact challenging Defendant's entitlement
to that immunity. N.Y. Educ. Law § 38 13(4). In short, the New York State statutes and
regulations cited by Plaintiff support a finding that Defendant had no duty to ensure Plaintiff was
belted at the time of the accident, and that Defendant is immune from liability.
III. CONCLUSION
For the reasons explained above, Defendant is immune from liability. Therefore,
Defendant's Motion for Summary Judgment (Doc. 50) is GRANTED, and Plaintiff's crossmotion in limine to preclude Defendant's expert (Doc. 53) is DENIED as moot. The Clerk of
Court is respectfully requested to enter judgment accordingly and close this case.

SO ORDERED

/s/

Sandra L. Townes

TO
N DL. ~
United States District Judge

Dated:'
BroLvYorl

'7

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