*1 Cross appeals from the order of the Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about October 20, 2015, which, to the extent appealed from as limited by the briefs, granted defendant the City of New York’s and defendant Milcia Pineda’s respective motions for summary judgment dismissing the complaint as against them, and denied defendant JCCA’s motion for summary judgment with respect to the negligence claims against it.*2
ELLEN GESMER, J.In this case, defendant Jewish Child Care Association (the agency or JCCA), placed the infant plaintiff, Joseph. L. De’L. A., in a foster home with defendant Milcia Pineda. The child suffered brain injury when he was left in the care of the teenage boyfriend of the foster mother’s daughter. The child’s biological and adoptive mothers brought this action on his behalf. The City of New York, the foster parent, and JCCA each moved for summary judgment. Supreme Court granted the motions by the City and Ms. Pineda, but denied JCCA’s motion. We now affirm.Our dissenting colleagues join us in finding that the motion court properly granted the summary judgment motions of the foster parent and the City, for the reasons discussed below. However, where an institutional defendant fails to comply with rules intended to protect the safety of those for whom the institution is responsible, and such an individual is assaulted, it is a question of fact as to whether the institutional defendant is liable (Mirand v. City of New York, 84 NY2d 44, 51 [1994]; Garcia v. City of New York, 222 AD2d 192, 197 [1st Dept 1996], lv denied 89 NY2d 808 [1997]; Dawn VV. v. State of New York, 47 AD3d 1048, 1051 [3d Dept 2008]). That question cannot be resolved on the agency’s summary judgment motion because “[p]roximate cause is a question of fact for the jury where varying inferences are possible” (Mirand, 84 NY2d at 51). Because we do not view plaintiffs’ claims against JCCA as one of “the rare cases in which it can be determined, as a matter of law, that a defendant’s negligence merely created the opportunity for, but did not cause, the event that resulted
