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AN ADMINISTRATIVE PROCEEDING WAS BROUGHT BY THE UNIVERSITY AGAINST PETITIONER-STUDENT BASED UPON ANOTHER STUDENT’S (THE REPORTING INDIVIDUAL’S) ALLEGATIONS SHE WAS SEXUALLY ASSAULTED; THE UNIVERSITY’S TITLE IX GRIEVANCE POLICY PROVIDES THAT WHERE, AS HERE, THE REPORTING INDIVIDUAL IS ABSENT FROM THE HEARING AND IS NOT SUBJECT TO CROSS-EXAMINATION, ANY DETERMINATION BY THE UNIVERSITY CANNOT BE BASED UPON STATEMENTS ATTRIBUTED TO THE REPORTING INDIVIDUAL; THE DETERMINATION WAS ANNULLED ON THAT GROUND (THIRD DEPT).

The Third Department, annulled the university’s determination petitioner had violated the university’s “Community Rights and Responsibilities” by sexually assaulting the reporting individual. Petitioner did not deny kissing an touching the reporting individual, but contended all the interactions were consensual. The reporting individual did not testify at the hearing. The university’s Title IX grievance policy provides that, when the reporting individual does not testify and is not subject to cross-examination, the determination cannot be based upon any statement attributed to the reporting individual. Here statements by the reporting individual were the basis for the university’s determination:

Petitioner contends that he was denied due process because he was not afforded the opportunity to question the reporting individual, who did not testify at the hearing or otherwise submit to cross-examination. Under the circumstances presented here, we agree and conclude that annulment is required. “In general, there is a limited right to cross-examine an adverse witness in an administrative proceeding, and the right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings” … . Nevertheless, “[i]t is well established that once having adopted rules or guidelines establishing the procedures to be followed in relation to suspension or expulsion of a student, colleges or universities — both public and private — must substantially comply with those rules and guidelines” … . Matter of Bibler v State Univ. of N.Y. at Albany, 2025 NY Slip Op 03373, Third Dept 6-5-25

Practice Point: In a university disciplinary proceeding stemming from an allegation of sexual assault, the right to cross-examine the accuser is not considered an essential requirement of due process. However, the university is required to abide by its own rules. Here the rules stated that, where the accuser is absent from the hearing and is not cross-examined, the university’s determination cannot be based upon statements made by the accuser. The university’s failure to comply with that rule required that the determination be annulled.

 

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THE NYS DEPARTMENT OF EDUCATION’S CALCULATION OF THE STUDENT TUITION TO BE PAID TO CHARTER SCHOOLS UPHELD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, upheld the NYS Education Department’s calculation of the student tuition to be paid to petitioners, operators of charter schools in New York City. The calculation was not “arbitrary or capricious.” Matter of Coney Is. Preparatory Pub. Charter Sch. v New York State Educ. Dept., 2025 NY Slip Op 03374, Third Dept 6-5-25

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A SCHOOL JANITOR, THE NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION AND THE DEMAND FOR PUNITIVE DAMAGES SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against defendant school for negligent and intentional infliction of emotional distress, and the demand for punitive damages, should have been dismissed. This Child Victims Act case alleged plaintiff-student was sexually abused by a janitor:

… Supreme Court should have directed dismissal of the cause of action alleging negligent infliction of emotional distress insofar as asserted against each of the school defendants, as it is duplicative of the remaining negligence causes of action … . A cause of action is properly dismissed as duplicative when it is “based on the same facts and seek[s] essentially identical damages” … .

Furthermore, the amended complaint failed to state a cause of action to recover damages for intentional infliction of emotional distress. “The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” … . “The subject conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . Furthermore, conclusory assertions are insufficient to set forth a cause of action sounding in the intentional infliction of emotional distress … . Here, even accepting the conclusory allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the plaintiff failed to allege conduct by the school defendants that was “so outrageous in character, and so extreme in degree,” as to qualify as intentional infliction of emotional distress … . Accordingly, the Supreme Court should have directed dismissal of the cause of action to recover damages for intentional infliction of emotional distress insofar as asserted against each of the school defendants pursuant to CPLR 3211(a)(7).

… Supreme Court should have directed dismissal of the demand for punitive damages insofar as asserted against each of the school defendants. “[P]unitive damages are available for the purpose of vindicating a public right only where the actions of the alleged tort-feasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or are activated by evil or reprehensible motives” … . Here, the plaintiff’s allegations against the school defendants amount to “nothing more than allegations of mere negligence and do not rise to the level of moral culpability necessary to support a claim for punitive damages” … . Redd v Brooklyn Friends Sch., 2025 NY Slip Op 03214, Second Dept 5-28-25

Practice Point: Consult this decision for the criteria for sufficiently alleging negligent and intentional infliction of emotional distress causes of action, as well as the criteria for a demand for punitive damages against a school in a Child Victims Act case​.

 

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ALTHOUGH THE SCHOOL DISTRICT HAD TIMELY KNOWLEDGE OF THE INCIDENT AND THE PETITIONER’S INJURIES, IT DID NOT HAVE TIMELY KNOWLEDGE OF THE FACTS THAT UNDERLIE THE LEGAL THEORIES OF LIABILITY; THEREFORE THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a nurse hired to care for M.C., an infant, was not entitled to leave to file a late notice of claim against the school district for injuries allegedly suffered when M.C. struck her in a stairway at M.C.’s elementary school. Although there was an incident report and a police report, the school district’s timely actual knowledge of the incident and the injuries did not demonstrate knowledge of the essential facts constituting the claim:

… [T]he petition failed to establish that the District acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. “Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … . “[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim” … .

Here, while an employee incident report, a police incident report, and the involvement of an employee of the District in the incident may have established the District’s actual knowledge of the incident, they did not provide the District with actual knowledge of all of the essential facts underlying the claim … . Among other things, although the District was presumably aware that M. C.’s individualized education program (hereinafter IEP) allegedly required him to have an aide with him at all times due to aggression, and that no such aide had been assigned to him at the time of the incident, neither the IEP nor the incident reports described the incident while making a connection between [petitioner’s] injuries and negligent conduct on the part of the District … . Matter of Cooke v Mamaroneck Union Free Sch. Dist., 2025 NY Slip Op 03062, Second Dept 5-21-25

Practice Point: One of the criteria for leave to file a late notice of claim against a school district is that the district have had timely knowledge of the facts underlying the claim. Timely knowledge of the incident and injuries is not sufficient. The district must have had timely knowledge of the facts underlying the theory or theories of liability.

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING DAILY SEXUAL ABUSE BY A TEACHER, THE PLAINTIFF’S AND A FACULTY MEMBER’S DEPOSITION TESTIMONY RAISED A QUESTION OF FACT ABOUT WHETHER DEFENDANT SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR ABUSE AND THE ABUSE ITSELF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment in this Child Victims Act case should not have been granted. Plaintiff alleged daily sexual abuse by a teacher. The school district submitted plaintiff’s deposition transcript and a faculty member’s deposition transcript in support of the summary judgment motion. The plaintiff’s allegations of daily abuse and the faculty member’s testimony that students had informed him of the abuse and he believed other teachers were aware of the abuse raised questions of fact about negligent hiring and retention of the teacher and negligent supervision of the plaintiff:

In support of their motion, the defendants submitted … a transcript of the deposition testimony of the plaintiff, who testified that over the course of the school year, while he was in the seventh grade, he was sexually abused by the teacher daily and that the teacher’s abusive propensities were common and open knowledge in the middle school’s community. The defendants also submitted a transcript of the deposition testimony of a faculty member who was employed by the school district at the same time as the teacher, who testified that students had informed him that the teacher engaged in inappropriate conduct and that he believed other teachers were aware of said alleged conduct. Therefore, the defendants’ own submissions demonstrated the existence of triable issues of fact as to whether the defendants had actual or constructive notice of the alleged abuse of the plaintiff and of the teacher’s alleged abusive propensities and as to whether the defendants’ supervision of the plaintiff and the teacher was negligent … . Since the defendants failed to meet their prima facie burden, the court should have denied the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . T.F. v Clarkstown Cent. Sch. Dist., 2025 NY Slip Op 03042, Second Dept 5-21-25

Practice Point: In Child Victims Act cases alleging frequent sexual abuse by a teacher, courts are increasingly willing to hold that the plaintiff’s allegations of frequent abuse alone are sufficient to raise a question of fact about constructive notice on the part of the school.

 

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGED FREQUENCY OF THE ABUSE BY A TEACHER RAISED QUESTIONS OF FACT ABOUT THE SCHOOL DISTRICT’S CONSTRUCTIVE NOTICE OF THE ABUSE AND WHETHER ITS SUPERVISION OF PLAINTIFF STUDENT WAS NEGLIGENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this Child Victims Act action alleging the negligent hiring, retention and supervision of a teacher, as well as negligent supervision of plaintiff student, should not have been dismissed. The defendant school district did not eliminate questions of fact about whether it had constructive notice of the abuse based upon the alleged frequency of the abuse:

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . Considering, among other things, the frequency of the alleged abuse, which occurred over the course of two school years, inter alia, in a classroom and inside the teacher’s vehicle, the defendants did not eliminate triable issues of fact as to whether they should have known of the alleged abuse … . The defendants also failed to demonstrate, prima facie, that their supervision of both the teacher and the plaintiff was not negligent … . Trunco v Eastport- S. Manor Cent. Sch. Dist., 2025 NY Slip Op 02951, Second Dept 5-14-25

Practice Point: In a Child Victims Act action against a teacher, allegations of the frequency and the locations of the abuse of a student may be sufficient to raise questions of fact about whether the school district had constructive notice of the abuse and whether the supervision of the student was negligent.

 

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PLAINTIFF TEACHER FELL WHEN SHE LEANED ON A DEFECTIVE DESK; THE DEFENDANT SCHOOL DISTRICT DID NOT PROVE THAT THE DESK WAS INSPECTED CLOSE IN TIME TO THE FALL; THEREFORE THE SCHOOL DISTRICT DID NOT DEMONSTRATE IT LACKED CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DESK (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant city school district was not entitled to summary judgment in this personal injury case. Plaintiff, a teacher, alleged she fell when she leaned on a defective desk. The school district did not demonstrate it lacked constructive notice of the defective desk because it did not present proof that the desk was inspected close in time to plaintiff’s fall:

Plaintiff, a teacher at a school in the Bronx, alleges that she fell when she leaned on a defective desk as she was grading papers in the back of a classroom. Defendants sustained their burden of establishing that they neither created nor had actual notice of the alleged defect by submitting the testimony of the school’s custodian engineer stating that there had been no prior complaints or injuries related to the desk, and that there was no repair record of any desk because the school discarded broken desks and chairs. Plaintiff also testified that she was not aware of the defective desk leg until after her accident, and that none of the students who used the desk ever reported any defect to her …. .

Nevertheless, defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint, as they did not sustain their burden of demonstrating that they lacked constructive notice of the allegedly defective condition. Although defendants relied on a daily logbook recording the custodian engineer’s daily routine for the building, the logbook was not sufficient to show that defendants inspected the classrooms to ensure that they were free from defects … . Furthermore, the custodian engineer testified at his deposition that although he inspected the classrooms every morning, he did so only to make sure that the heat was on. This testimony is insufficient to demonstrate defendants’ lack of constructive notice, as it fails to show that the alleged condition did not exist when the area was last inspected before plaintiff fell … . Mamah v New York City Dept. of Educ., 2025 NY Slip Op 02877, First Dept 5-13-25

Practice Point: Another example of how problematic proof of a negative, i.e., proof of a lack of constructive notice of a dangerous condition, can be.

 

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PLAINTIFF’S REQUEST TO PROCEED UNDER THE PSEUDONYM “JANE DOE” SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s request to proceed using the pseudonym “Jane Doe” should have been granted. Plaintiff is apparently suing her former employer, a charter school, contesting her termination, which apparently was based upon a video depicting plaintiff masturbating:

As to the merits, Supreme Court improvidently exercised its discretion in denying plaintiff’s request to proceed in this litigation under the pseudonym “Jane Doe” … . This action concerns information of a highly sensitive, intimate, and personal nature — namely, a video depicting plaintiff masturbating. Plaintiff’s affidavit establishes the serious psychological harm that disclosure of her role in this video caused her and would continue to cause her, as well as the potential impact on her career in education … . That plaintiff was able to obtain a new job in education after her termination by defendants is of no moment, as she may still need to apply for other jobs in future and it is not clear whether her current employer is aware of the circumstances of her termination.

Defendants do not identify any source of prejudice to them from allowing plaintiff to proceed by pseudonym, as they know who she is and therefore are not impeded in mounting a defense … . The public interest in disclosure of plaintiff’s identity is also minimal. Even if the charter school defendants were deemed public entities for these purposes (see Education Law § 2854[3][a], [c] …), that fact would not be dispositive, especially because plaintiff is not requesting that court records be sealed or public access denied … . Furthermore, the termination decision at issue here is not claimed to be the result of any government policy.

Plaintiff’s privacy interest outweighs the reputational interest of the individual defendants’ anonymity … . Jane Doe v KIPP N.Y., Inc., 2025 NY Slip Op 02718, First Dept 5-6-25

Practice Point: Consult this decision for a brief discussion of the factors which control whether a plaintiff can sue under a pseudonym, “Jane Doe” in this case.​

 

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THERE IS A QUESTION OF FACT WHETHER DECEDENT’S STATE UNIVERSITY OWED DECEDENT A DUTY TO WARN HIM OF THE HOSTILITY HARBORED BY ANOTHER STUDENT WHO ULTIMATELY MURDERED DECEDENT (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Lynch, determined there exists a question of fact whether decedent’s university (Binghamton) owed decedent a duty to warn decedent of the hostility toward decedent harbored by another student (Roque), a former friend of the decedent, who murdered decedent:

To hold defendant liable for negligence, claimant must establish that the University owed decedent a duty, breached that duty, and that the breach was a proximate cause of decedent’s death … . The threshold issue in any negligence action is whether the defendant owed the plaintiff a legally recognized duty of care … . The existence and scope of a duty are legal questions for the courts to resolve in the first instance … .

… Claimant … is not seeking to hold the University liable for failing to protect decedent simply by virtue of his status as a student on campus … . The crux of claimant’s argument, as we understand it, is that counselors employed by the University’s Counseling Center were negligent in failing to make a threat assessment referral to the Dean of Students’ office upon learning of Roque’s hostility toward decedent in the months before the attack and in failing to warn decedent of Roque’s threats against him. Since the specific acts of negligence occurred during the University’s provision of mental health services — a proprietary function … — we conclude that no special duty need be established to hold the University liable and it is “held to the same duty of care as private individuals and institutions engaging in the same activity” … . * * *

Given that the University had threat assessment and referral procedures in place governing actions to take when faced with a distressed student, we conclude that the University owed decedent a duty to reasonably comply with those policies, if applicable … . Cuomo v State of New York, 2025 NY Slip Op 01991, Third Dept 4-3-25

Practice Point: Here the Third Department held a state university may have a “general” (not a “special”) duty to warn a student of hostility harbored by another student.

 

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IN ORDER TO SEEK COURT REVIEW OF AN ALLEGED VIOLATION OF A COLLECTIVE BARGAINING AGREEMENT BY AN EMPLOYER AND/OR A UNION, AN EMPLOYEE MUST BRING A PLENARY ACTION, NOT AN ARTICLE 78 PROCEEDING (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, affirming the dismissal of appellant-employee’s Article 78 petition, determined an employee who has exhausted the contractual grievance process and alleges the employer breached a collective bargaining agreement must bring a plenary action, not an Article 78 proceeding, for any further review:

… [W]hen a claim arises under a collective bargaining agreement that creates a mandatory grievance process, the employee “may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract. Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer” … . Allegations that an employer has breached the collective bargaining agreement are contract claims that may not be resolved in an article 78 proceeding … . Thus, when an employee alleges that an employer has breached a term in a collective bargaining agreement, the proper mechanism is a plenary action alleging both breach of contract by the employer and breach of the duty of fair representation by the union … . * * *

The procedure applicable to an employee’s claim depends on the source of the right or benefit the employee asserts. Statutory or constitutional claims are appropriately brought in an article 78 proceeding … . Claims arising exclusively from an alleged breach of a term in a collective bargaining agreement must be brought through a civil action for breach of contract … and must meet the requirements set out in Ambach (70 NY2d at 508). Matter of Dourdounas v City of New York, 2025 NY Slip Op 01671, CtApp 3-20-25

Practice Point: An employee who, after exhausting the grievance mechanism in a collective bargaining agreement, seeks court review of whether the employer and/or the union breached the collective bargaining agreement must bring a plenary action, not an Article 78 proceeding.

 

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