You are here: / / SPECIAL NEEDS STUDENT’S STATUTORY ACTIONS AGAINST THE NYC DEPARTMENT...
, ,

SPECIAL NEEDS STUDENT’S STATUTORY ACTIONS AGAINST THE NYC DEPARTMENT OF EDUCATION’S OFFICE OF PUPIL TRANSPORTATION SHOULD NOT HAVE BEEN DISMISSED; THE AUTISTIC SIX-YEAR-OLD STUDENT WAS TRANSPORTED TO SCHOOL ON A FULL-SIZED BUS, GENERATING NINE INCIDENT REPORTS IN A SIX-WEEK PERIOD, INSTEAD OF THE MINI-BUS REQUIRED BY THE INDIVIDUALIZED EDUCATION PROGRAM (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, over and extensive dissenting opinion, determined that a special needs student’s statutory actions against NYC’s Office of Pupil Transportation should not have been dismissed. The opinions are too detailed and comprehensive to fairly summarize:

[Plaintiff student, I.M., who was six at the time, is] a nonverbal diapered child with autism spectrum disorder, moderate to severe intellectual disability, and attention deficit disorder. His 2005-06 Individualized Educational Program (IEP) stated, in bold faced type, that he required a “mini-bus” to transport him to and from school … . However, due to a computer coding error he was placed on a full-sized school bus operated by defendant the Pioneer Transportation Corporation (Pioneer) from September 8, 2005 through October 19, 2005. During this period, Pioneer filed nine incident reports with I.M.’s school in connection with these trips. I.M.’s family also repeatedly complained to I.M.’s school and to the New York City Department of Education’s Office of Pupil Transportation (OPT). The problem was not rectified until October 20, 2005, when I.M. was placed on a minibus in accordance with his IEP.

Plaintiff … appeals from Supreme Court’s dismissal of his claims under section 504(a) of the Rehabilitation Act of 1973 … (the RA), Title II of the Americans with Disabilities Act of 1990 (the ADA), section 296(2)(a) of the New York State Executive Law, and section 8-107 of the Administrative Code of the City of New York (the State and City HRLs). Supreme Court dismissed these statutory claims on the basis that “[t]here is no evidence that the infant was purposefully discriminated against as a result of his disability when he was placed on the full-sized bus.” … It let stand plaintiff’s common-law negligence and gross negligence claims. The only issue on appeal is whether Supreme Court properly dismissed plaintiff’s statutory discrimination claims.

We … reverse … and reinstate these statutory discrimination claims against the Board of Education of the City of New York, its employees Lorraine Sesti and Joanne Richburg, and OPT (collectively DOE) … . We affirm Supreme Court’s dismissal of the statutory claims against Pioneer but on different grounds. Viewing the evidence, much of which is uncontested, … issues of fact exist as to whether DOE violated the discrimination statutes by acting with bad faith, gross misjudgment, or deliberate indifference to [plaintiff’s] rights to be transported by minibus, thereby depriving him of a FAPE [free appropriate public education]. A reasonable jury could conclude that a simple bureaucratic mistake was compounded by inaction into a violation of the RA, the ADA and the State and City HRLs. I.M. v City of New York, 2019 NY Slip Op 07756, First Dept 10-29-19

 

You might also like
DEFENDANT SHOULD HAVE BEEN PRESENT WHEN DEFENSE COUNSEL, DURING THE TRIAL, REQUESTED TO BE RELIEVED FROM REPRESENTING DEFENDANT, NEW TRIAL ORDERED.
TILTING A SKID FROM A VERTICAL POSITION ONTO A DOLLY IS COVERED UNDER LABOR LAW 240(1), QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED.
THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH PROHIBITS CERTAIN SEX OFFENDERS FROM RESIDING OR TRAVELING WITHIN 1000 FEET OF A SCHOOL, DOES NOT IMPOSE PUNISHMENT AND THEREFORE DOES NOT VIOLATE THE EX POST FACTO CLAUSE.
IT IS NOT NECESSARY TO HAVE POSSESSION OF THE MORTGAGE, AS OPPOSED TO THE NOTE, AT THE TIME OF THE COMMENCEMENT OF A FORECLOSURE ACTION, EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE RAISED A QUESTION OF FACT ABOUT PLAINTIFF’S STANDING (FIRST DEPT).
BANK NOT LIABLE FOR PAYMENT RE: FRAUDULENT CHECKS SIGNED BY PLAINTIFF BUT ALTERED BY PLAINTIFF’S BOOKKEEPER TO PAY OFF HER CREDIT CARD BILLS (FIRST DEPT).
PLAINTIFF WAS DOING ROUTINE MAINTENANCE WHEN HE FELL FROM A LADDER, NOT COVERED BY LABOR LAW 240 (1) (FIRST DEPT). ​
FAMILY COURT ABUSED ITS DISCRETION IN ORDERING UNSUPERVISED VISITATION WITH CHILDREN WHO HAD BEEN REMOVED FROM THE PARENTS’ CARE, THERE WAS NO EVIDENCE OF A CHANGE IN CIRCUMSTANCES SINCE THE DENIAL OF THE PARENTS’ APPLICATION TO HAVE THE CHILDREN RETURNED TO THEM (FIRST DEPT).
DEFENDANT’S MOTION TO COMPEL THE PRODUCTION OF TAX RETURNS AFTER THE PARTIES’ FAILURE TO RESPOND TO THE DEMAND FOR PRODUCTION SHOULD HAVE BEEN DENIED; THE FAILURE TO RESPOND TO A PALPABLY IMPROPER DEMAND FOR PRODUCTION, I.E. A DEMAND FOR TAX RETURNS, DOES NOT WAIVE THE ABILITY TO OBJECT TO THE DEMAND ON APPEAL; DEFENDANT MAY RENEW THE MOTION TO COMPEL PRODUCTION OF THE TAX RETURNS IF THE REQUIRED SHOWINGS ARE MADE (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

JURY INSTRUCTIONS ON THE JUSTIFICATION DEFENSE WERE ADEQUATE, ARGUMENTS TO THE... THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S WORK CONSTITUTED ‘ALTERING’...