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CORNELL DID NOT HAVE TO FOLLOW THE PROCEDURES IN ITS STUDENT CODE TO REFUSE ADMISSION TO PETITIONER WHO OMITTED FROM HIS APPLICATION THE FACT HE HAD BEEN EXPELLED FROM ANOTHER COLLEGE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined respondent Cornell did not act arbitrarily or capriciously when it refused to enroll petitioner because petitioner did not reveal he had been expelled from Kansas State for violations of its code of conduct. Petitioner argued Cornell did not follow the provisions in its Code when it refused to enroll petitioner. But the Third Department held the Code applied only to “students” and not to those who were filling out an application for admission:

In reviewing a determination rendered by a private educational institution where no hearing is required, a court will not disturb it “unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules or imposes a penalty so excessive that it shocks one’s sense of fairness” … . Petitioner argues that respondent was obliged to follow the provisions of the Code, which establishes standards of conduct for, as is relevant here, its students. A student is defined under the Code as a person “currently registered” with respondent in one of its divisions or as a special student, “currently enrolled in or taking classes” with respondent, “currently using” respondent’s facilities or property for academic purposes or “currently on leave of absence or under suspension from being a student.” Inasmuch as petitioner was none of those things when he misrepresented his academic background on an application for admission to respondent, neither the Code nor the procedures created by it were applicable to his misconduct, and Supreme Court erred in concluding that they were … . Matter of Kamila v Cornell Univ., 2020 NY Slip Op 02150, Third Dept 4-2-20

 

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WHETHER THE SCHOOL PRINCIPAL RECEIVED COMPETENT REPRESENTATION AT HER DISCIPLINARY PROCEEDINGS BEFORE THE NYC DEPARTMENT OF EDUCATION WAS RELEVANT TO HER DECERTIFICATION PROCEEDINGS BEFORE THE NYS DEPARTMENT OF EDUCATION; THEREFORE THE MOTION TO QUASH THE SUBPOENA SEEKING THE ATTORNEY’S TESTIMONY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the motion to quash a subpoena seeking an attorney’s (Guerra’s) testimony in a teacher decertification proceeding should not have been granted. The attorney was seeking employment with the NYC Department of Education (NYCDOE) at the time she was representing the respondent school principal (Klingsberg) in disciplinary proceedings brought by the NYCDOE. The issue of whether respondent received competent representation in the disciplinary proceedings was relevant to whether those proceedings should be given collateral estoppel effect in the New York State Department of Education (SED) teacher decertification proceedings:

“[A] subpoena will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry” … . The party moving to quash bears “the burden of establishing that the subpoena should be [quashed] under such circumstances” … . * * *

… [W]hether Klingsberg was competently represented at that prior proceeding so as to warrant giving preclusive effect to its factual findings is very much in issue in this decertification proceeding and, given that Guerra has firsthand knowledge regarding her representation of Klingsberg at that prior proceeding, it cannot be said that “the information sought [from Guerra] is utterly irrelevant” to the decertification inquiry … . Rather, Guerra’s testimony is highly relevant to whether collateral estoppel will be applied in the pending decertification proceeding. For this reason, petitioners have not satisfied their burden of proof on their motion to quash the subpoena … . Matter of Board of Educ. of the City Sch. Dist. of the City of N.Y. v New York State Dept. of Educ., 2020 NY Slip Op 02140, Third Dept 4-2-20

 

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AN ATTORNEY REPRESENTING A SCHOOL-EMPLOYEE-UNION-MEMBER IN DISCIPLINARY PROCEEDINGS PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT CAN NOT BE LIABLE IN MALPRACTICE TO THE UNION MEMBER (SECOND DEPT).

The Second Department determined the attorney (Guerra) who represented a union can not be held liable in malpractice to individual union members in disciplinary proceedings:

Pursuant to CPLR 3211(a)(2), a party may move to dismiss a cause of action on the ground that the court lacks subject matter jurisdiction as the cause of action is preempted by federal law … . Here, we agree with the Supreme Court’s determination that the complaint insofar as asserted against Guerra is preempted by section 301 of the Federal Labor Management Relations Act, and that attorneys such as Guerra who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants such as the plaintiff where the services performed constitute part of the collective bargaining process … . Klingsberg v Council of Sch. Supervisors & Adm’rs-Local 1, 2020 NY Slip Op 02083, Second Dept 3-25-20

 

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THE PORTION OF THE ARBITRATOR’S AWARD WHICH CONFLICTED WITH THE COLLECTIVE BARGAINING AGREEMENT AND THE PORTION OF THE AWARD WHICH WAS NONFINAL SHOULD NOT HAVE BEEN CONFIRMED BY SUPREME COURT (FOURTH DEPT).

The Fourth Department determined certain findings made by the arbitrator shouldn’t have been confirmed by Supreme Court. The matter concerned the elimination of teaching positions to accommodate the hiring of teachers’ aides. In one instance the arbitrator’s ruling conflicted with the terms of the collective bargaining agreement (CBA). And in the other instance the arbitrator’s ruling was nonfinal:

An award may be vacated where an arbitrator, “in effect, made a new contract for the parties in contravention of [an] explicit provision of [the] arbitration agreement which denied [the] arbitrator power to alter, add to or detract from” the collective bargaining agreement (CBA) … . …

An award is nonfinal and indefinite if, inter alia, “it leaves the parties unable to determine their rights and obligations” … . Matter of Arbitration Between Buffalo Teachers Fedn., Inc. (Board of Educ. of the Buffalo Pub. Schs.), 2020 NY Slip Op 00794, Fourth Dept 1-31-20

 

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PLAINTIFF ALLEGEDLY INJURED HIS HAND WHEN HE SAW HIS DAUGHTER START TO SLIP OUT OF A SWING ON A SCHOOL PLAYGROUND AND STOPPED THE SWING; THE ALLEGEDLY DEFECTIVE SWING WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY; THE COURT NOTED THAT THE ASSUMPTION OF THE RISK DOCTRINE DID NOT APPLY TO THIS SCENARIO (SECOND DEPT).

The Second Department determined plaintiff failed to demonstrate the allegedly defective swing was the proximate cause of his injury. Plaintiff alleged the swing was crooked causing his daughter to begin to slip off the seat and he fractured his hand trying to stop the swing. The Second Department noted that the assumption of the risk doctrine did not apply to this scenario:

The concept of assumption of the risk has been “generally restricted . . . to particular athletic and recreative activities in recognition that such pursuits have enormous social value’ even while they may involve significantly heightened risks'” … . “As a general rule application of assumption of the risk should be limited to cases . . . such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” … . Here, the plaintiff was pushing his young daughter in a plastic molded bucket seat swing at a playground on the School District defendants’ property when, while attempting to stop the swing, he “jammed” his hand on the back of it and fractured his hand. Pushing a swing is not the type of activity to which the doctrine of assumption of the risk is applicable … . Moreover, jamming one’s hand in the back of a swing “is not a risk inherent in the activity and flowing from it” … . * * *

… [T]he plaintiff’s deposition testimony describing the accident leads to the conclusion, as a matter of law, that under the circumstances of this case the risk of the plaintiff’s injury was not forseeable … . It is not reasonably foreseeable that the allegedly negligent installation of the swing, which caused it to swing crookedly, would have resulted in the plaintiff “jamm[ing]” his hand on the back of the swing and fracturing his hand. The alleged negligent installation of the swing merely furnished the occasion for the unrelated act of the plaintiff reaching out to grab the swing and jamming his hand … . Raldiris v Enlarged City Sch. Dist. of Middletown, 2020 NY Slip Op 00630, Second Dept 1-29-20

 

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DEFENDANT SCHOOL DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE PROTRUDING SCREW WHICH LACERATED PLAINTIFF-STUDENT’S LEG; THE SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant school did not demonstrate it lacked constructive notice of the protruding screw which allegedly lacerated plaintiff-student’s leg as she walked by bleachers. Therefore the school’s motion for summary judgment should not have been granted:

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition … . In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it … . To meet its initial burden on the issue of lack of constructive notice, the moving party is required to offer some evidence as to when the accident site was last inspected or maintained prior to the plaintiff’s accident  … .

Here, in support of their motion, the defendants submitted, inter alia, the affidavit of the School District’s Director of Facilities, Roald Broas, who averred, in relevant part, that the School District did not maintain the subject bleachers, but instead “hire[d] subcontractors to perform inspections and maintenance of the bleachers.” Broas’s conclusory affidavit—which failed to identify the subcontractor who performed the last inspection or maintenance on the bleachers, as well as when and how such inspection or maintenance was performed—was insufficient to establish, prima facie, the School District’s lack of constructive notice of the alleged dangerous condition … . Kelly v Roy C. Ketcham High Sch., 2020 NY Slip Op 00111, Second Dept 1-8-20

 

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THE TIP OF PLAINTIFF THIRD-GRADER’S FINGER WAS SEVERED WHEN A DOOR IN THE SCHOOL BUILDING SLAMMED SHUT; THE DEFENDANT-SCHOOL’S (DEPARTMENT OF EDUCATION’S [DOE’S]) MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED; THE DOOR WAS NOT DEFECTIVE, THE SCHOOL HAD NO NOTICE OF A PROBLEM WITH THE DOOR, SUPERVISION COULD NOT HAVE PREVENTED THE ACCIDENT, AND NYC IS NOT LIABLE FOR AN ACCIDENT ON SCHOOL (DOE) PROPERTY (SECOND DEPT).

The Second Department determined defendant school (NYC Department of Education [DOE]) was entitled to summary judgment in this premises liability and negligent supervision action. Plaintiff third-grader alleged a door closed on his finger, severing the tip. The school demonstrated it had no notice of any problems with the door and that supervision could not have prevented the accident. The Second Department noted that the unsigned depositions were properly considered because they were submitted by the DOE and therefore were adopted as accurate, and further noted that, because the accident occurred on school property, the city (NYC) was not liable:

The unsigned deposition transcripts of the school’s custodial engineer and the injured plaintiff’s teacher, who testified on behalf of their employer, the DOE, were admissible under CPLR 3116(a) because the transcripts were submitted by the DOE and, therefore, were adopted as accurate … . …

The deposition testimony of the building’s custodial engineer established that he inspected the door at least twice per week before the accident. Moreover, the school principal provided evidence that a search of the school’s records revealed no “indication of any maintenance, repairs, work orders, or other issues reported” with respect to the door during the two-year time period prior to the accident. This evidence, together with evidence that the subject door was in regular use, including regular use by the infant plaintiff, was sufficient to establish, prima facie, that the door was not defective … . …

When an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury … . E.W. v City of New York, 2020 NY Slip Op 00175, Second Dept 1-8-20

 

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VERDICT FINDING THE SCHOOL DISTRICT WAS NEGLIGENT BUT FURTHER FINDING THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE STUDENT’S SUICIDE WAS NOT AGAINST THE WEIGHT OF EVIDENCE; PLAINTIFFS ALLEGED BULLYING AT SCHOOL CAUSED THEIR SON’S SUICIDE (THIRD DEPT).

The Third Department determined the verdict finding the school district was negligent but further finding the negligence was not the proximate cause of plaintiff-student’s suicide was not against the weight of the evidence. Plaintiffs alleged bullying at school was the reason for their son’s suicide and claimed the school was liable under a negligent-supervision theory:

“… [A] jury’s finding that a party was at fault but that [such] fault was not a proximate cause of [decedent’s] injuries is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . …

The conduct of defendant’s employees was not blameless … — indeed, it appears that several minor incidents involving decedent provided missed opportunities for them to uncover what was going on — but the fact remains that the trial proof neither established the degree of the bullying that decedent received at school nor showed that defendant could have anticipated its impact upon him. Therefore, the jury could logically find that defendant was negligent by failing “to adequately supervise” decedent in some respects … , but that the pain, suffering and suicide of decedent were not foreseeable consequences of that negligence … . The issues of negligence and proximate cause were not inextricably interwoven as a result and, after viewing the evidence in the light most favorable to the nonmoving party, “we find that the evidence did not so preponderate in plaintiff[s’] favor that the jury’s verdict could not have been reached on any fair interpretation of the evidence” … . C.T. v Board of Educ. of S. Glens Falls Cent. Sch. Dist., 2020 NY Slip Op 00023, Third Dept 1-2-20

 

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14-YEAR-OLD PLAYING CATCH ON A SCHOOL ATHLETIC FIELD ASSUMED THE RISK OF INJURY FROM A TWO TO FIVE INCH DEPRESSION IN THE FIELD (SECOND DEPT).

The Second Department, over an extensive dissent, determined that the primary assumption of risk doctrine applied to a 14-year-old experienced football player who was injured by stepping into a 2 to 5 inch depression in a school athletic field. The majority distinguished the condition here, part of the natural features of a grass field, and a condition resulting from disrepair:

The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field … . Moreover, the infant plaintiff’s testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed … .

Like our dissenting colleague, we acknowledge the Court of Appeals’ admonition that the doctrine of primary assumption of risk “does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … . Thus, the doctrine does not necessarily absolve landowners of liability where they have allowed certain defects, such as a hole in a net in an indoor tennis court, to persist … . In this case, we do not determine the doctrine’s applicability to similar to that of a hole in an indoor tennis net, as there is a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field … . Ninivaggi v County of Nassau, 2019 NY Slip Op 08568, Second Dept 11-27-19

 

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PLAINTIFF COULD NOT PROCEED ON A THEORY NOT RAISED IN THE NOTICE OF CLAIM; ALTHOUGH THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL, IT COULD BE CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, held that plaintiff-student could not proceed based upon a theory not included in the notice of claim. Plaintiff, who alleged she was sexually assaulted at a BOCES facility, did not allege in her notice of claim that the school district (North Shore), which did not have custody of her when she was assaulted, was also liable because it had formulated an Individualized Education Program for her. The court noted that the issue, although raised for the first time on appeal, could be considered because it was a question of law that could not have been avoided by the lower court:

“A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim” … . “A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose” … . “[A] mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by [General Municipal Law § 50-e], not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby” (General Municipal Law § 50-e[6]). Under General Municipal Law § 50-e(6), “[a] notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability” … .

We agree with North Shore that the plaintiff may not proceed under the theory that North Shore negligently failed to formulate an appropriate IEP for her, as the plaintiff did not include this theory in her notice of claim. Although North Shore did not raise this argument before the Supreme Court, we may consider it because “it presents an issue of law that appears on the face of the record, and could not have been avoided had it been raised at the proper juncture” … . In her notice of claim, the only theory of liability that the plaintiff asserted was negligent supervision. In opposition to North Shore’s motion for summary judgment, the plaintiff contended for the first time that North Shore had negligently failed to formulate an appropriate IEP for her. This was not a technical change, but was an impermissible substantive change to the theory of liability … . I. T. K. v Nassau Boces Educ. Found., Inc., 2019 NY Slip Op 08557, Second Dept 11-27-19

 

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