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NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the school district’s and school bus company’s motions for summary judgment in this negligent supervision, third party assault, case should not have been granted. A six minute fight erupted on a school bus during which the two student plaintiffs were punched by another student. The school district did not demonstrate the student’s (Torres’s) violence was not foreseeable, and there was evidence the school aide observed the fight but did nothing to stop it:

Schools have a duty to adequately supervise the students in their care and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . The standard for determining whether a school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information … . Where the complaint alleges negligent supervision in the context of injuries caused by an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable… .

Here, the school defendants failed to establish, prima facie, that they had no specific knowledge or notice of Torres’s propensity to engage in the misconduct alleged. In support of their motion, the school defendants submitted, inter alia, the deposition testimony of assistant principal Sharon Flynn, who testified that Torres had a disciplinary record. When asked whether Torres’ prior disciplinary history involved violence, Flynn replied only, “Not that I remember.” Thus, the school defendants failed to sustain their prima facie burden of establishing that they had no actual or constructive notice of Torres’s propensity to engage in the misconduct alleged … . … [T]riable issues of fact also exist as to whether Torres’s dangerous conduct occurred in such a short span of time that no amount of supervision by the school defendants could have prevented the infant plaintiffs’ injuries … , whether the infant plaintiffs’ injuries were a foreseeable consequence of the security aide’s alleged failure to respond appropriately as the events unfolded … , and whether security personnel took “energetic steps to intervene” in the fight to stop Torres from injuring the infant plaintiff … . Palopoli v Sewanhaka Cent. High Sch. Dist., 2018 NY Slip Op 07441, Second Dept 11-7-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION ACTION AGAINST THE SCHOOL DISTRICT AND BUS COMPANY STEMMING FROM A FIGHT INSTIGATED BY A STUDENT ON THE BUS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

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SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant school district’s motion for summary judgment in this third party assault case should have been granted. Infant plaintiff, Deb B, a special education student, alleged she was sexually assaulted by another special education student outside the school building before classes started. Deb B.’s education plan did not provide for a school aide to escort her to school from the bus or between classes:

After arriving at school one morning, she entered the building in the company of JG, another special education student who had been a passenger with her on the same school bus. After stopping by the school’s cafeteria, and before the first-period class, JG asked Deb B. to accompany him outside the school building to the bleachers near the athletic field, and Deb B. agreed to do so. Deb B. alleges that JG then sexually assaulted her while they were on the bleachers. …

“Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a special duty’ to the students themselves” … . Thus, schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . “Schools are not, however, insurers of students’ safety and cannot reasonably be expected to continuously supervise and control all movements and activities of students'” … . “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” … . …

Here, in support of their motion for summary judgment, the defendants submitted evidence that Deb B.’s individualized education plan did not provide for a school aide to escort her from the school bus to the school building or to escort her throughout the building as she moved between classes. Deb B.’s mother testified that she was aware that Deb B. was not so escorted, and that she had no expectation that this would be done. The evidence submitted by the defendants also indicated that Deb B. had no history of leaving the school building improperly. Finally, neither the complaint nor the bill of particulars alleged that JG had a propensity to engage in dangerous conduct, or that the defendants knew or should have known of any such propensity … . Deb B. v Longwood Cent. Sch. Dist., 2018 NY Slip Op 07280, Second Dept 10-31-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, THIRD PARTY ASSAULT, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/ASSAULT, THIRD PARTY (NEGLIGENCE, EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))/THIRD PARTY ASSAULT (EDUCATION-SCHOOL LAW, NEGLIGENCE, THIRD PARTY ASSAULT, SCHOOL DISTRICT NOT LIABLE FOR A SEXUAL ASSAULT BY A STUDENT BEFORE CLASSES STARTED, THE ATTACK WAS NOT FORESEEABLE, ALTHOUGH PLAINTIFF WAS A SPECIAL EDUCATION STUDENT, HER EDUCATION PLAN DID NOT PROVIDE FOR AN AIDE TO ESCORT HER FROM THE BUS TO THE SCHOOL OR BETWEEN CLASSES (SECOND DEPT))

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NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT).

The Second Department determined that the negligent supervision cause of action against the school district was properly dismissed. Infant plaintiff, a student who had a one-on-one aide, was injured when she went to the bathroom unaccompanied. She caught her finger in a bathroom door:

While a school district is not an insurer of the safety of its students, since it cannot reasonably be expected to continuously supervise and control all of their movements and activities, it has a duty to adequately supervise the students in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the school defendant is warranted … . Here, the District made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any alleged inadequacy in the level of supervision was not a proximate cause of the accident … . Hinz v Wantagh Union Free Sch. Dist., 2018 NY Slip Op 07105, Second Dept 10-24-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT PROPERLY DISMISSED, STUDENT PLAINTIFF, WHO HAD A ONE-ON-ONE AIDE BUT WENT TO THE BATHROOM UNACCOMPANIED, WAS INJURED WHEN SHE CAUGHT HER FINGER IN A BATHROOM DOOR (SECOND DEPT))

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COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that the college’s determination that petitioner-student violated  the code of student conduct was supported by substantial evidence:

“We emphasize that [t]he substantial evidence standard is a minimal standard” … , and “demands only that a given inference is reasonable and plausible, not necessarily the most probable”… . Stated differently, “[r]ationality is what is reviewed under the substantial evidence rule” …; substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” . Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently … .

“[O]ften there is substantial evidence on both sides of an issue disputed before an administrative agency” … . Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, “irrespective of whether a similar quantum of evidence is available to support other varying conclusions”… . Moreover, hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds … . …

Contrary to petitioner’s argument, the hearsay evidence proffered at the administrative hearing, along with petitioner’s testimony, provides substantial evidence in support of the finding that he violated respondents’ code of conduct. The hearing board also could have reasonably interpreted some of petitioner’s conceded behavior as consciousness of guilt and concluded that his version of the events was not credible. Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations. The Appellate Division improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those of respondents … . Matter of Haug v State Univ. of N.Y. at Potsdam, 2018 NY Slip Op 06964, CtApp 10-18-18

EDUCATION-SCHOOL LAW (COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/EVIDENCE (EDUCATION-SCHOOL LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/ADMINISTRATIVE LAW  (EDUCATION-SCHOOL LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/COLLEGES AND UNIVERSITIES (DISCIPLINARY PROCEEDINGS, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/SUBSTANTIAL EVIDENCE (ADMINISTRATIVE LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))

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SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the negligent supervision cause of action against the school district properly survived summary judgment, but the inadequate security cause of action should have been dismissed. Plaintiff was stabbed by another student in the hallway at school. The school district did not demonstrate the assault was not foreseeable and did not demonstrate negligent supervision was not the proximate cause of plaintiff’s injuries. However the inadequate security cause of action should have been dismissed because no special relationship between the school and the plaintiff was demonstrated:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision”… . “In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated”… . Actual or constructive notice to the school of prior similar conduct generally is required, and “an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence” … . A plaintiff also must establish that the alleged breach of the duty to provide adequate supervision was a proximate cause of the injuries sustained … . The adequacy of a school’s supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff’s injury … .

Here, the District failed to demonstrate, prima facie, that the assault on the plaintiff was not foreseeable or that the District’s alleged negligent supervision was not a proximate cause of the plaintiff’s injuries … . The District failed to eliminate triable issues of fact as to whether it had knowledge of the offending student’s dangerous propensities based on his involvement in other assaultive altercations with fellow students in the recent past … . Thus, the District failed to establish, prima facie, that it lacked sufficiently specific knowledge or notice of the dangerous conduct that caused the alleged injuries to the plaintiff. As to proximate cause, the District failed to demonstrate, prima facie, that the subject incident occurred so quickly and spontaneously “that even the most intense supervision could not have prevented it” … . …

However, the District established, prima facie, its entitlement to judgment as a matter of law dismissing the cause of action alleging inadequate security by demonstrating that there was no special relationship giving rise to a special duty to protect the plaintiff. Gaston v East Ramapo Cent. Sch. Dist., 2018 NY Slip Op 06720, Second Dept 10-10-18

NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENT SUPERVISION  (EDUCATION-SCHOOL LAW, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/INADEQUATE SECURITY (EDUCATION-SCHOOL LAW, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/THIRD PARTY ASSAULT (EDUCATION-SCHOOL LAW, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION ACTION STEMMING FROM A STABBING WAS PROPERLY DENIED, THE INADEQUATE SECURITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

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PETITIONER’S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner's request for leave to file a late notice of claim in a potential Labor Law 200, 240 (1) and 241 (6) action should not have been granted. Petitioner was struck by a falling plank when he was standing on a scaffold during renovation work at a school:

Although the petitioner made no attempt to proffer a reasonable excuse for the failure to serve a timely notice claim, “[n]either the presence nor absence of any one factor is determinative”; thus, “[t]he absence of a reasonable excuse is not necessarily fatal” … .

The petitioner failed to establish that the municipal parties acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual, or within a reasonable time thereafter. Notably, the record is devoid of evidence showing that any of the municipal parties was aware, prior to the commencement of this proceeding, that the petitioner's accident had occurred—let alone that the petitioner was claiming violations of Labor Law §§ 200, 240(1), and 241(6) … . Contrary to the petitioner's contention, a delay of four months following the expiration of the 90-day notice period does not constitute a “reasonable time” within the meaning of General Municipal Law § 50-e(5) … .

Further, the petitioner failed to present “some evidence or plausible argument” supporting a finding that the municipal parties were not substantially prejudiced by the four-month delay from the expiration of the 90-day statutory period … . Matter of Moroz v City of New York, 2018 NY Slip Op 06743, Second Dept 10-10-18

NEGLIGENCE (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, PETITIONER'S REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN A POTENTIAL LABOR LAW 200, 240 (1), 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT).

The Second Department determined defendant Department of Education's (DOE's) motion for summary judgment in this negligent hiring, training, retention and supervision action was properly denied. The suit alleged sexual abuse of plaintiff-student by a school employee (Denice). Although the abuse did not take place on school premises, it was preceded by inappropriate conduct in the school, including touching:

… [T]he DOE defendants failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision of Denice. The DOE defendants' own submissions in support of their motion for summary judgment raised a triable issue of fact as to whether the DOE took the appropriate measures to evaluate Denice's employment and fitness at the time he was allowed to intern at the school… . Moreover, there is a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Denice “placed [Denice] in a position to cause foreseeable harm” … .

Generally, liability may not be imposed upon school authorities where all of the improper acts against a student occurred off school premises and outside school hours … . Here, however, the DOE defendants' submissions demonstrated that, although the sexual abuse ultimately occurred in the infant plaintiff's home, it was preceded by time periods when the infant plaintiff was alone with Denice during school hours on a regular basis. During these times, Denice engaged in inappropriate behavior, including physical touching. Thus, triable issues of fact exist regarding, inter alia, whether the DOE knew or should have known of such behavior and Denice's propensity for sexual abuse … . Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Second Dept 10-3-18\

NEGLIGENCE (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT))/EDUCATION-SCHOOL LAW  (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT))/EMPLOYMENT LAW  (NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, SCHOOL EMPLOYEE ALLEGEDLY SEXUALLY ABUSED A STUDENT, ACTIONS WERE VIABLE EVEN THOUGH THE ABUSE DID NOT OCCUR ON THE SCHOOL GROUNDS (SECOND DEPT)

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SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim in this slip and fall case should have been granted. Petitioner alleged she tripped and fell over unsecured floor mats as she was leaving the school after her grandson's basketball game. The Second Department noted that the school had done an investigation and thereby had timely notice of the facts of the claim:

… [A]lthough the petitioner's notice of claim was not served within 90 days of the accident, the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident … . In fact, the respondent conducted an investigation into whether it was a proper defendant in a personal injury action. In addition, the petitioner made an initial showing that the respondent was not substantially prejudiced by the delay, since the respondent acquired timely, actual knowledge of the essential facts constituting the claim within the 90-day period, conducted an investigation, and notified its insurance carrier of the accident … .

In opposition, the respondent failed to make a particularized evidentiary showing that it would be substantially prejudiced if the late notice was allowed … . The respondent's contention that it was prejudiced because the particular mats over which the petitioner tripped had been replaced after the accident is without merit. The record shows that the respondent's Director of Facilities sent an email on the morning following the petitioner's accident in which he indicated that he was aware of the fact that the petitioner tripped over the mats in the vestibule. Contrary to the respondent's contention, any prejudice resulting from the replacement of the subject mats was due to the respondent's practice of changing the mats on a weekly basis rather than from the petitioner's delay in serving a notice of claim. Under these circumstances, the failure of the respondent to inspect the mats that were on the ground on the date of the petitioner's accident was not caused by the delay in serving a notice of claim … .

…[W]hile the excuses proffered by the petitioner for her failure to file a timely notice of claim were not reasonable, the absence of a reasonable excuse is not in and of itself fatal to the petition where, as here, there was actual notice and an absence of prejudice … . Matter of Messick v Greenwood Lake Union Free Sch. Dist., 2018 NY Slip Op 06244, Second Dept 9-26-18

EDUCATION-SCHOOL LAW (SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, SLIP AND FALL, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, SLIP AND FALL, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))/SLIP AND FALL  (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90 DAYS AND WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, PETITION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED, DESPITE AN INADEQUATE EXCUSE (SECOND DEPT))

COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT’S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT).

The First Department determined the college adequately addressed petitioner-Ph.D-student's learning disability and petitioner was properly terminated from the program after failing an exam:

The record establishes that respondents reasonably accommodated the known aspects of petitioner's learning disability by granting him, among other accommodations, double the amount of time (six hours) for a certification exam, with an additional hour for lunch to be used at his discretion. There is no record that respondents were ever apprised, until months after petitioner had twice unsuccessfully sat for the exam, that the resulting length of the test could exacerbate petitioner's disability through fatigue. Petitioner thus failed to meet his burden, under the Americans with Disabilities Act (ADA), of showing that the additional accommodations he sought (i.e., to take the exam home or split the six hours over two days) were facially reasonable… . Moreover, the record establishes that respondents met their duty, in advance of both administrations of the exam, to engage in an interactive dialogue with petitioner … .

Petitioner's claim for breach of implied contract also fails, as respondents' determination that petitioner did not pass the exam (and the resulting termination from the program) was rationally based in the record and, as an academic evaluation, is beyond further review … . Matter of De Jesus v Teachers Coll., 2018 NY Slip Op 06186, First Dept 9-25-18

EDUCATION-SCHOOL LAW (COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/AMERICANS WITH DISABILITIES ACT (EDUCATION-SCHOOL LAW, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/LEARNING DISABILITIES (ACCOMMODATIONS, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))/ACCOMMODATIONS (EDUCATION-SCHOOL LAW, COLLEGE ADEQUATELY ADDRESSED PH.D STUDENT'S LEARNING DISABILITY, STUDENT WAS PROPERLY TERMINATED FROM THE PROGRAM UPON FAILURE OF AN EXAM (FIRST DEPT))

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STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE’S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT).

The Second Department, over a two-justice dissent, determined the student-petitioner's due process rights were not violated when the state college (SUNY Purchase] refused to adjourn a disciplinary hearing because petitioner's attorney could not be present. Petitioner was accused of having sex with another student without her consent. After the hearing the petitioner was found responsible and expelled. The dissent argued that the failure to grant the requested three-hour adjournment so petitioner's counsel could attend the hearing deprived petitioner of due process:

In disciplinary proceedings at public colleges, ” [d]ue process requires that the [accused students] be given the names of the witnesses against them, the opportunity to present a defense, and the results and finding of the hearing'” …  Due process does not require colleges to provide accused students with legal representation at disciplinary hearings … . Purchase's rules, the legality of which the petitioner does not challenge, allow for an attorney to be present and advise an accused student at a disciplinary hearing, but not to represent the student or interact with anyone at the hearing other than the accused student. Here, the petitioner had hired an attorney as of September 30, 2014. … [t]he petitioner was notified on September 30, 2014, that the hearing would likely be scheduled for October 6 or 7, and was informed of the exact time of the hearing on October 2, 2014. He alleges that he did not request an adjournment until “on or about” October 5, 2014, which was two days before the date of the hearing. Under these circumstances, contrary to the suggestion of our dissenting colleagues, the petitioner was not denied the opportunity to have an attorney present at the hearing … .

Purchase's determination that the petitioner committed the charged violations was supported by substantial evidence (see CPLR 7803[4]…).

Contrary to the petitioner's contention, the penalty of expulsion was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law (see CPLR 7803[3]…). Matter of Bursch v Purchase Coll. of the State Univ. of N.Y., 2018 NY Slip Op 06090, Second Dept 9-19-18

EDUCATION-SCHOOL LAW (STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE'S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT))/ATTORNEYS (EDUCATION-SCHOOL LAW, STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE'S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT))/COLLEGES AND UNIVERSITIES (DISCIPLINARY CHARGES, STUDENT WAS NOT DEPRIVED OF HIS RIGHT TO HAVE AN ATTORNEY PRESENT AT A COLLEGE DISCIPLINARY HEARING BY THE COLLEGE'S REFUSAL TO ADJOURN THE MATTER FOR THREE HOURS SO THE ATTORNEY COULD ATTEND, STUDENT WAS PROPERLY FOUND RESPONSIBLE FOR THE DISCIPLINARY CHARGES AND WAS PROPERLY EXPELLED (SECOND DEPT))

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