Education-School Law Archives - New York Appellate Digest

PLAINTIFF STUDENT WAS ASSAULTED BY ANOTHER STUDENT AND SUED THE SCHOOL UNDER A NEGLIGENT SUPERVISION THEORY; THE SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligent supervision action by a student who was assaulted at school should not have been dismissed:

While the plaintiff testified that he had never been physically assaulted by the other student prior to the subject incident, he testified that the other student always made threatening comments to him during Spanish class, of which seven or eight were serious in nature, and three or four were accompanied by a closed fist motion in an attempt to get the plaintiff to flinch. The plaintiff also testified that he complained about these threats to the Spanish teacher, who had witnessed the other student make a closed fist motion toward the plaintiff on at least one or two occasions, and that he asked the teacher if she could do something about these threats, but she never said anything to the other student. Moreover, while the plaintiff testified that he did not know whether the other student had ever threatened or assaulted other students, the School District failed to submit any affidavit or deposition testimony from its own personnel establishing that it did not have specific knowledge or notice of the dangerous conduct that caused the alleged injuries to the plaintiff … .

With respect to proximate cause, the School District did not demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously “that even the most intense supervision could not have prevented it” … . The plaintiff testified that approximately 10 minutes before the end of class on the date of the assault, while the class was silently working on an assignment, the other student threatened out loud to stab him, which was overheard by the rest of the class and the teacher. Nizen-Jacobellis v Lindenhurst Union Free Sch. Dist., 2021 NY Slip Op 08195, Second Dept 2-24-21

February 24, 2021/0 Comments/by Bruce Freeman

A PUBLIC LIBRARY IS NOT SUBJECT TO THE PREVAILING WAGE REQUIREMENTS OF THE LABOR LAW; THEREFORE THE CLEANING CONTRACTOR HIRED BY THE LIBRARY WAS NOT REQUIRED TO PAY ITS EMPLOYEES THE PREVAILING WAGE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined the public library was not subject to the prevailing wage requirements of the Labor Law, Therefore the petitioner cleaning service, hired by the library, was not required to pay its employees the prevailing wage:

Although we are mindful that the prevailing wage law “is to be interpreted with the degree of liberality essential to the attainment of the end in view”… , that mandate does not permit an overly-broad reading of the statute that expands its reach to noncovered entities … . The library at issue undoubtedly performs a public function and is closely intertwined with the school district that it serves, but it is not itself “a municipal corporation, school district, district corporation [or] board of cooperative educational services” — the entities that are considered to be “[p]olitical subdivision[s]” of the state for purposes of public contracts … . By statute, an “education corporation” and a “school district” are separately defined, indicating “that they are mutually exclusive” … . An “education corporation” is a type of corporation formed for reasons “other than for profit” … , whereas a “school district” is a type of “municipal corporation” … . Reflecting its status as a distinct entity, the library’s Board of Trustees is vested with independent decision-making authority and operational control … . Nor do we view the library as “operat[ing] a public improvement” so as to be considered a public benefit corporation within the embrace of Labor Law § 230 (3) … , or as constituting any of the other public entities included within Labor Law article 9. Consequently, we hold that the library at issue is not a public agency within the meaning of Labor Law § 230 (3). Matter of Executive Cleaning Servs. Corp. v New York State Dept. of Labor, 2021 NY Slip Op 00461, Third Dept 1-28-21

January 28, 2021/by Bruce Freeman

Education-School Law, Negligence

PLAINTIFF HIGH SCHOOL BASEBALL PLAYER ASSUMED THE RISK OF BEING STRUCK WITH A BALL DURING A PRACTICE DRILL WHERE MULTIPLE BALLS WERE IN PLAY; TWO DISSENTING MEMORANDA (THIRD DEPT).

The Third Department, over two separate dissents, determined plaintiff high school baseball player assumed the risk of injury from being struck with a ball during a so-called “Warrior Drill” where multiple balls are in play:

Having more than one ball in play may not be an inherent risk in a traditional baseball game, but the record indicates that it is a risk inherent in baseball team practices … . Although plaintiff asserts that the presence of a screen between certain players may have provided a false sense of security that they would be protected, thereby creating a dangerous condition beyond the normal dangers inherent in the sport, this argument is belied by his testimony unequivocally establishing that he did not rely upon the screen for safety but, rather, thought that the drill was unsafe even in the presence of the screen. Thus, the conditions were “as safe as they appear[ed] to be” … . As the evidence showed that plaintiff was an experienced baseball player who “knew of the risks, appreciated their nature and voluntarily assumed them,” defendants demonstrated their prima facie entitlement to summary judgment under the primary assumption of risk doctrine … . Grady v Chenango Val. Cent. Sch. Dist., 2021 NY Slip Op 00468, Third Dept 1-28-21

January 28, 2021/by Bruce Freeman

Administrative Law, Civil Procedure, Education-School Law

PETITIONER IS ENTITLED TO DISCOVERY IN THE ARTICLE 78 PROCEEDING CONTESTING SUNY ALBANY’S FINDING PETITIONER VIOLATED THE CODE OF CONDUCT BY HAVING NONCONSENSUAL SEX; THE ALLEGED VICTIM HAS NO MEMORY OF THE INCIDENT; PETITIONER ALLEGED BIAS ON THE PART OF THE SCHOOL’S TITLE IX INVESTIGATOR (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined petitioner was entitled to discovery in petitioner’s Article 78 proceeding contesting SUNY Albany’s finding petitioner violated the school’s code of conduct. The student was accused of sexual misconduct, but the alleged victim had no memory of the incident. The investigation was conducted by respondent Chantelle Cleary, the Title IX coordinator at the school:

We agree with petitioner that Supreme Court erred in denying his motion for discovery. In a special proceeding such as this, discovery is available only by leave of court (see CPLR 408 …). “Among the factors weighed are whether the party seeking disclosure has established that the requested information is material and necessary, whether the request is carefully tailored to obtain the necessary information and whether undue delay will result from the request” … . Petitioner’s motion requested the disclosure of, among other things, “[r]ecordings of all meetings and interviews” between petitioner and the Title IX investigators, as well as “[r]ecordings of all interviews of all witnesses” conducted in furtherance of the investigation. Petitioner cited the alleged bias of Cleary, and the attendant bias on his guarantee of an impartial investigation, as the reason the requested discovery was “material and necessary”; respondents did not argue that the requested discovery was overbroad or would cause undue delay. Thus, we find that petitioner met the requirements for discovery … . …

Here, where the nonconsensual nature of the sexual activity was not predicated on the reporting individual’s verbal and physical manifestation of nonconsent — but on her ability to knowingly consent due to excessive inebriation — and the reporting individual avers no memory of the activity, the Board’s determination was necessarily heavily reliant on that part of the referral report that contained a summary of statements of persons who had observed the reporting individual during Friday evening, prior to her sexual encounter with petitioner. Notably, these are not sworn affidavits of the witnesses, but rather statements collected and compiled by the Title IX investigators. Matter of Alexander M. v Cleary, 2020 NY Slip Op 06987, Third Dept 11-25-20

November 25, 2020/by Bruce Freeman

Administrative Law, Education-School Law

UNIVERSITY STUDENTS WERE CHARGED WITH VIOLATIONS OF THE CODE OF CONDUCT STEMMING FROM THE RELEASE OF VIDEO CLIPS DEPICTING SKITS PERFORMED AT A ROAST HELD BY A FRATERNITY; THE SKITS INCLUDED RACIAL AND RELIGIOUS SLURS AND SIMULATED SEXUAL ACTIVITY AND VIOLENCE; THE 4TH DEPARTMENT HELD THAT THE DISCIPLINARY PROCEDURES COMPORTED WITH THE RULES, THE CODE VIOLATIONS WERE SUPPORTED BY THE EVIDENCE AND THE SANCTIONS DID NOT SHOCK ONE’S SENSE OF FAIRNESS; A STRONG DISSENT ARGUED THE CODE PROVISION PURPORTING TO PROHIBIT SPEECH WHICH “THREATENS” THE “MENTAL HEALTH” OF A PERSON IS SO VAGUE THAT IT CAN NOT SUPPORT A CONVICTION (FOURTH DEPT).

The Fourth Department, over a dissent, affirmed Supreme Court in this Article 78 proceeding contesting the disciplinary procedures used by Syracuse University (respondent), the disciplinary provisions of the respondent’s Code of Student Conduct, and the punishment imposed by respondent on the petitioners (students). The petitioners participated in a roast held by their fraternity which was videotaped. The videotaped skits “included dialogue in which students professed hatred for persons of certain races, ethnicities, and religions while using slurs to refer to those groups, and depictions of simulated sexual activity and sexual violence directed at persons imitating women and a disabled individual.” Eventually portions of the video were made public. Petitioners were afforded a group hearing and were found to have violated the charged code provisions. Sanctions which included one or two-year suspensions were imposed. After noting that private colleges are not held to constitutional free speech and due process standards, the Fourth Department determined the disciplinary procedures substantially complied with the code provisions, the evidence supported the charged code violations and the sanctions did not shock one’s sense of fairness. The dissent focused on one of the charged code provisions which prohibits “[c]onduct—whether physical, verbal or electronic, oral, written or video—which threatens the mental health, physical health, or safety of any person or persons including, but not limited to hazing, drug or alcohol abuse, bullying or other forms of destructive behavior:”

FROM THE DISSENT:

… [T]here is one aspect of this case that I cannot reconcile with the applicable law, namely, respondent’s decision to convict petitioners of violating Section 3 of the Code. … Section 3 empowers respondent to punish any student for “[a]ssistance, participation in, promotion of, or perpetuation of conduct—whether physical, verbal[,] electronic, oral, written or video—which threatens the mental health . . . of any person or persons” … . * * *

… [D]oes that provision create any distinction between speech that merely offends and speech that truly harms another person’s psychological, psychiatric, or neuro-cognitive functioning? … [H]ow does Section 3 channel the factfinder’s discretion so as to punish only the latter and not the former? … [T]he staggering breadth of the provision is matched only by its indefiniteness, and it effectively serves as a systemic instrument for the suppression of any viewpoint that falls outside the zone of permissible opinion decreed by the most strident and self-righteous of the campus community. To convict petitioners under such a vague and standardless diktat is, to my mind, the very embodiment of arbitrary and capricious administrative decision-making that should be annulled under CPLR article 78 … . Matter of John Doe 1 v Syracuse Univ., 2020 NY Slip Op 06586, Fourth Dept 11-13-20

November 13, 2020/by Bruce Freeman

Education-School Law, Evidence, Negligence

DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE THE APPLICABILITY OF THE STORM-IN-PROGRESS RULE IN THIS SLIP AND FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant school district did not demonstrate the applicability of the storm-in-progress rule in this slip and fall case:

… [D]efendants did not meet their initial burden of establishing that plaintiff’s injuries were the result of “an icy condition occurring during an ongoing storm or for a reasonable time thereafter” … . Although defendants submitted an affidavit from a meteorologic expert, Doppler radar data, and deposition testimony establishing that it had been snowing and icy on the date of the accident from the early morning hours through 3:00 p.m., the time plaintiff fell, defendants also submitted conflicting evidence regarding how much snow actually accumulated in the area of the middle school. Defendants’ expert never set forth, by opinion or otherwise, any specific amount of snowfall in the Town of Yorkshire on the date of plaintiff’s fall. … Thus, defendants’ own submissions raised a question of fact whether there was a storm in progress at the time of the fall.

Even assuming, arguendo, that defendants met their initial burden, plaintiff raised an issue of fact whether the ice upon which she fell preexisted the weather event … . Plaintiff submitted the affidavit of an expert meteorologist who averred that a thaw in the days prior to the accident, followed by a drop in temperatures from the night before into the morning hours of the accident, would account for the formation of the ice. Plaintiff also submitted deposition testimony establishing that there had been thick ice in the parking lot since the day before the accident, and that defendants’ groundskeeper had plowed down to the ice … . We also conclude that plaintiff raised an issue of fact whether defendants had constructive notice of the condition … . Ayers v Pioneer Cent. Sch. Dist., 2020 NY Slip Op 05622, Fourth Dept 10-9-20

October 9, 2020/by Bruce Freeman

Civil Procedure, Education-School Law, Judges, Municipal Law, Negligence

DEFENDANTS’ MOTION TO DISMISS CLAIMS NOT INCLUDED IN THE NOTICE OF CLAIM PROPERLY GRANTED; MOTION TO AMEND THE NOTICE OF CLAIM AND MOTION FOR LEAVE TO FILE A LATE NOTICE PROPERLY DENIED; JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE CLAIM FOR LOSS OF SERVICES BECAUSE THAT RELIEF WAS NOT REQUESTED (SECOND DEPT).

The Second Department determined defendants’ motion to dismiss claims that were not in the notice of claim was properly granted, and plaintiffs’ motions to amend the notice of claim and for leave to file a late notice of claim were properly denied. The Second Department noted that the loss of services claim should not have been dismissed (sua sponte) because that relief was not requested. The action alleged negligent supervision by the school. Plaintiff student was allegedly pushed into a wall during gym class by another student who had been bullying her for some time:

The plaintiffs’ new claims of other purported bullying incidents and Dupper’s [plaintiff-student’s father’s] claim that he suffered stress, anxiety, and depression as a result of the … incident constitute new theories of liability which were not included in the notice of claim and should be dismissed … . …

The plaintiffs’ proposed amendments to the notice of claim add substantive new facts and new theories of liability not set forth in the original notice of claim and which are not permitted as late filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . …

… [T]he plaintiffs’ failure to include a proposed notice of claim with their cross motion alone was a sufficient basis for denying that branch of the cross motion … . C.D. v Goshen Cent. Sch. Dist., 2020 NY Slip Op 04916, Second Dept 9-16-20

September 16, 2020/by Bruce Freeman

Education-School Law, Employment Law

THE TERMINATED SCHOOL EMPLOYEE’S PETITION FOR REINSTATEMENT WAS PROPERLY DISMISSED FOR FAILURE TO TIMELY SERVE A NOTICE OF CLAIM AS REQUIRED BY THE EDUCATION LAW; ALTHOUGH PETITIONER NOTIFIED THE SCHOOL DISTRICT’S SUPERINTENDENT AND THE BOARD OF EDUCATION WAS AWARE OF THE ACTION, FAILURE TO SERVE THE BOARD WAS A FATAL DEFECT (SECOND DEPT).

The Second Department determined the terminated school-district employee’s petition seeking reinstatement was properly dismissed because notice of the action was served on the school district’s superintendent, not the board of education as required by the Education Law:

… [T]he petitioner failed to present his purported notice of claim to the governing body, namely, the Board (see Education Law § 3813[1] …). The letter that the petitioner contends constituted his notice of claim was sent to the School District’s Superintendent, which did “not constitute service upon the Board” … . The petitioner did not submit an affidavit of service or any other evidence to demonstrate that he had in fact served or presented his letter to the governing body … . That the Board ultimately obtained actual knowledge of the letter from the Superintendent’s office was of no moment … . The petitioner’s failure to present his purported notice of claim to the governing body was “a fatal defect” … . Matter of Jovasevic v Mount Vernon City Sch. Dist., 2020 NY Slip Op 04839, Second Dept 9-2-20

September 2, 2020/by Bruce Freeman

Education-School Law, Real Property Tax Law

THE SOLAR ARRAY IS ATTACHED TO THE COLLEGE’S LAND AND IS THEREFORE TAXABLE REAL PROPERTY; THE ARRAY IS OWNED BY THE INSTALLER, NOT THE COLLEGE, AND IS THEREFORE NOT EXEMPT FROM TAXATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the solar array installed on petitioner-college’s land was owned by the installer, Argos, not the college, and is taxable as real property because it is permanently attached to the land:

Respondents contend that the system constitutes taxable real property under RPTL 102 (12) (b). We agree. Pursuant to that statute, taxable real property is defined as “[b]uildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto” (id.). “The common law relating to fixtures provides guidance in determining whether particular items fall within [that] statutory definition” … . “To meet the common-law definition of fixture, the personalty in question must: (1) be actually annexed to real property or something appurtenant thereto; (2) be applied to the use or purpose to which that part of the realty with which it is connected is appropriated; and, (3) be intended by the parties as a permanent accession to the freehold” … . …

… .RPTL 420-a (1) (a) provides, in relevant part, that “[r]eal property owned by a corporation or association organized or conducted exclusively for . . . educational . . . purposes, and used exclusively for carrying out thereupon . . . such purposes . . . shall be exempt from taxation.” “Land and [structures] are separately defined as taxable forms of real property (see RPTL 102 [12] [a], [b]), and [parties to an agreement] may agree to their separate ownership” … . …

Here, it is undisputed that petitioner is a qualifying corporation, but Argos is not, and that the system is used for a qualifying purpose; therefore, whether the system is tax exempt depends on its ownership. Matter of Cornell Univ. v Board of Assessment Review, 2020 NY Slip Op 04636, Fourth Dept 8-20-20

August 20, 2020/by Bruce Freeman

Education-School Law, Municipal Law, Negligence

CLAIMANT’S PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS STUDENT-ON-STUDENT ASSAULT CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant’s petition for leave to file a late notice of claim on the school district in this student-on-student third-party assault case should not have been granted:

” In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality’ ” … . …

… [C]laimant described the assault on her child as “unprovoked,” and the accident report prepared contemporaneously by a school nurse, which claimant submitted with her reply affidavit, describes a single punch resulting only in a headache and swollen face. Inasmuch as “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” …, we agree with respondent that the known facts failed to give “reasonable notice from which it could be inferred that a potentially actionable wrong had been committed by [respondent]”. Matter of Mary Beth B. v West Genesee Cent. Sch. Dist., 2020 NY Slip Op 04630, Fourth Dept 8-20-20