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COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT).

The Fourth Department annulled the determination that a SUNY Buffalo student possessed weapons and engaged in harassment because of the poor quality of the proof, a seriously controverted hearsay statement:

We agree with petitioner that the record is devoid of any evidence, much less substantial evidence, to support respondent’s determination… . Instead, respondent’s determination rests exclusively on a “seriously controverted” hearsay statement, and that does not, as a matter of law, constitute substantial evidence … . We therefore annul the determination, grant the petition, and direct respondent to expunge all references to this matter from petitioner’s school record … .

We decline respondent’s invitation to remit this matter for a new hearing in light of its failure to transcribe the disciplinary hearing. Annulment and expungement is the prescribed remedy for an administrative determination that is unsupported by substantial evidence… , and it would be anomalous if respondent was afforded a new opportunity to establish petitioner’s culpability based on its own procedural error in failing to transcribe the initial hearing.  Matter of Hill v State Univ. of N.Y. At Buffalo, 2018 NY Slip Op 05104, Fourth Deptp 7-6-18

EDUCATION-SCHOOL LAW (COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT))/ADMINISTRATIVE LAW (EDUCATION-SCHOOL LAW, COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT))/EVIDENCE (EDUCATION-SCHOOL LAW, ADMINISTRATIVE LAW, COLLEGE’S DISCIPLINARY DETERMINATION REGARDING A STUDENT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND EXPUNGED (FOURTH DEPT))

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ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s motion for leave to file a late notice of claim against her school based upon bullying and harassment should not have been denied. Before plaintiff turned 18, her father made a motion for leave to file a late notice of claim which was denied because of improper service. When plaintiff turned 18 she made the motion on her own behalf. Because the statute of limitations was tolled until plaintiff turned 18 (CPLR 208) her motion was timely. The Third Department determined the school had timely notice of the claim, plaintiff had introduced some evidence the school would not be prejudiced, meeting her burden, and the school’s demonstration of prejudice was speculative and otherwise inadequate:

Here, our review of the record reveals that defendant had actual knowledge of the alleged harassment, intimidation and bullying within a reasonable time … .

… [P]laintiff was initially required to “present some evidence or plausible argument that supports a finding of no substantial prejudice”… . She did so by submitting the … evidence that defendant knew of plaintiff’s claims and was able to investigate at least one of the incidents shortly after it occurred, as well as screen images taken from defendant’s website indicating that relevant school officials were still employed at the time of the motion. …

The burden thus shifted to defendant “to rebut [plaintiff’s] showing with particularized evidence” … . In this regard, defendant’s counsel asserted by affirmation that the incidents were no longer fresh in witnesses’ memories as a result of the passage of time and that any witnesses “would likely be children” who might have graduated or whose memories might have faded … . However, a finding of substantial prejudice “cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence on the record” … . Sherb v Monticello Cent. Sch. Dist., 2018 NY Slip Op 05004, Third Dept 7-5-18

​EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW,  ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/CIVIL PROCEDURE (NEGLIGENCE, EDUCATION-SCHOOL LAW, TOLLING PROVISION, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))/CPLR 208 (NEGLIGENCE, EDUCATION-SCHOOL LAW, TOLLING PROVISION, ALTHOUGH PLAINTIFF’S FATHER’S PRIOR ATTEMPT TO MOVE FOR LEAVE TO FILE A LATE NOTICE OF CLAIM FAILED BECAUSE OF FLAWED SERVICE, PLAINTIFF, UPON TURNING 18, BECAUSE OF THE TOLLING STATUTE, MADE A TIMELY MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH SHOULD HAVE BEEN GRANTED, THE SCHOOL HAD TIMELY NOTICE OF THE BULLYING AND HARASSMENT, PLAINTIFF MADE A SHOWING THE SCHOOL SUFFERED NO PREJUDICE FROM THE DELAY, AND THE SCHOOL’S SHOWING OF PREJUDICE WAS SPECULATIVE (THIRD DEPT))

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MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT).

The First Department determined the motions to dismiss the legal malpractice causes of action against original (Neimark defendants) and successor counsel (Budin defendants) were properly denied. Original counsel did not file a notice of claim and successor counsel did not seek leave to file a late notice of claim:

The Budin defendants, as successor counsel, had an opportunity to protect plaintiff’s rights by seeking discretionary leave, pursuant to General Municipal Law § 50-e(5), to serve a late notice of claim. Whether the Budin defendants would have prevailed on such motion will have to be determined by the trier of fact … . We do not find this determination to be speculative given that Supreme Court will weigh established factors in exercising its General Municipal Law § 50-e(5) discretion … .

We agree with plaintiff’s argument that the Neimark defendants’ failure to serve a timely notice of claim, as of right, on the New York City Department of Education in the underlying personal injury action remains a potential proximate cause of his alleged damages. Plaintiff has a viable claim against the Neimark defendants despite the fact that the Budin defendants were substituted as counsel before the expiration of time to move to serve a late notice of claim. Thus, the Budin defendants’ substitution can only be deemed a superseding and intervening act that severed any potential liability for legal malpractice on the part of the Neimark defendants if a determination is made that a motion for leave to serve a late notice of claim would have been successful in the underlying personal injury action … . Liporace v Neimark & Neimark, LLP, 2018 NY Slip Op 04668, First Dept 6-26-18

​ATTORNEYS (MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/LEGAL MALPRACTICE (MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/EDUCATION-SCHOOL LAW (NOTICE OF CLAIM, LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))

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SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the defendant-school district’s motion for summary judgment in this negligent supervision case was properly denied. And plaintiffs’ motion for an adverse or negative inference jury instruction based on the school district’s destruction of video surveillance evidence was properly granted. Infant plaintiff, a fifth grader, fell from the top of a set of monkey bars while attempting a dangerous cartwheel to a handstand. Apparently he successfully did the stunt just before and fell on his second attempt. The school was aware that infant plaintiff needed some extra supervision because of his past actions. The school preserved only the video of the failed second attempt of the stunt and nothing prior:

… [T]here are triable issues of fact as to whether the infant plaintiff’s alleged prior conduct and his reputation warranted more appropriate supervision, or heightened supervision, and, if so, whether such supervision would have prevented the accident … . The evidence submitted in support of the defendant’s motion for summary judgment did not establish, prima facie, that the accident occurred in so short a span of time that even the most intense supervision could not have prevented it… . Additionally, the doctrine of primary assumption of risk is not an applicable defense to the facts herein … . …

… [T]he plaintiffs demonstrated that the defendant had an obligation to preserve surveillance footage of the moments leading up to the infant plaintiff’s accident at the time of its destruction, but negligently failed to do so. Given the nature of the infant plaintiff’s injuries and the immediate documentation and investigation into the cause of the accident by the defendant’s employees, the defendant was clearly on notice of possible litigation and, thus, under an obligation to preserve any evidence that might be needed for future litigation … . The defendant failed to meet this obligation. The defendant acted negligently in unilaterally deciding to preserve only 24 seconds of footage and passively permitting the destruction of the remaining footage, portions of which were undisputedly relevant to the plaintiffs’ case. SM v Plainedge Union Free Sch. Dist., 2018 NY Slip Op 04370, Second Dept 6-13-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION  (EDUCATION-SCHOOL LAW, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/EVIDENCE (SPOLIATION, NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))/SPOLIATION (NEGLIGENT SUPERVISION, SCHOOL DISTRICT’S MOTION FOR SUMMARY JUDGMENT IN THIS NEGLIGENT SUPERVISION PLAYGROUND ACCIDENT CASE PROPERLY DENIED, PLAINTIFFS’ MOTION FOR A NEGATIVE INFERENCE JURY CHARGE BASED UPON THE SCHOOL DISTRICT’S DESTRUCTION OF VIDEO SURVEILLANCE EVIDENCE PROPERLY GRANTED (SECOND DEPT))

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ARBITRATION AWARD WAS INDEFINITE AND NONFINAL (FOURTH DEPT).

The Fourth Department determined the arbitrator’s award concerning the transfer of employees was indefinite and nonfinal:

The arbitration proceeding arose from respondent’s plan to transfer certain employees previously assigned to work at a single location to new positions requiring them to alternate between two different work locations. The arbitrator’s opinion and award, among other things, found that respondent involuntarily transferred the grievants in violation of the collective bargaining agreement between the parties, and directed respondent to compensate the grievants “for work performed at more than one location from November 30, 2013 until the end of the 2016 Budget Year.”

We agree with respondent that Supreme Court erred in granting the petition and in denying the cross petition. An arbitration award “shall be vacated” where the arbitrator “so imperfectly executed [the award] that a final and definite award upon the subject matter submitted was not made”… . “An award is indefinite or nonfinal within the meaning of the statute only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy’ ” … . Vacatur is appropriate where the award failed to set forth the manner of computing monetary damages… .

… The award does not explain the basis for the compensation allegedly owed to the grievants, nor does it detail how that compensation should be calculated.  Matter of The Professional, Clerical, Tech. Empls. Assn. (Board of Educ. for Buffalo City Sch. Dist.), 2018 NY Slip Op 04128, Fourth Dept 6-8-18​

ARBITRATION (ARBITRATION AWARD WAS INDEFINITE AND NONFINAL (FOURTH DEPT))/EMPLOYMENT LAW (ARBITRATION AWARD WAS INDEFINITE AND NONFINAL (FOURTH DEPT))/EDUCATION-SCHOOL LAW (EMPLOYMENT LAW, ARBITRATION AWARD WAS INDEFINITE AND NONFINAL (FOURTH DEPT))

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PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT).

The Third Department, in a complex decision not fully summarized here, determined the provision of the Education Law which allows the appointment of a receiver to take over allegedly failing schools does not violate the Contract Clause of the US Constitution:

… [W]here a statute or regulation impairs a private contract, courts will defer to a legislature’s rationale with regard to its necessity … . Less deference is warranted where the statute or regulation “is self-serving and impairs the obligations of [the state’s] own contracts” because “a [s]tate is not completely free to consider impairing the obligations of its own contracts on a par with other policy alternatives” … . Less deference may be warranted even where, as here, the state is not a party to an impaired public contract … . “[F]or an impairment to be reasonable and necessary under less deference scrutiny, it must be shown that the state did not (1) consider impairing the contracts on par with other policy alternatives or (2) impose a drastic impairment when an evident and more moderate course would serve its purpose equally well nor (3) act unreasonably in light of the surrounding circumstances” … .

Assuming without deciding that the less deferential standard applies, we find that Education Law § 211-f (8) is reasonable and necessary both on its face and as applied. In context, the receivership agreement was necessary in order to implement available methods to address the immediate issues that were facing the struggling or persistent struggling schools. The statute provides that the Superintendent must act in accordance with the existing CBA [collective bargaining agreement], and, where, as here, a receivership agreement is requested, the statute limits the scope of the agreement — and impairment. No modification or impairment can be unilaterally imposed but instead must be negotiated. As applied, although an agreement was not reached with regard to all issues, the modifications imposed were applicable to the affected schools only for the time limited by the statute. In sum, because the statute and the agreements apply prospectively and limit the scope, application and duration of any modifications to existing agreements, while prohibiting any adverse financial impact, we find that it was reasonably designed and necessary to further the goal of helping students to succeed … . Matter of Buffalo Teachers Fedn., Inc. v Elia, 2018 NY Slip Op 04061, Third Dept 6-7-18

EDUCATION-SCHOOL LAW (PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))/CONTRACT LAW (EDUCATION-SCHOOL LAW, CONSTITUTIONAL LAW, PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))/CONSTITUTIONAL LAW (EDUCATION-SCHOOL LAW, CONTRACT LAW, PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))/FAILING SCHOOLS (PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))/RECEIVERS (FAILING SCHOOLS, (PROVISION OF THE EDUCATION LAW WHICH ALLOWS THE APPOINTMENT OF A RECEIVER TO TAKE OVER ALLEGEDLY FAILING SCHOOLS DOES NOT VIOLATE THE CONTRACT CLAUSE OF THE US CONSTITUTION (THIRD DEPT))

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DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school bus company and board of education did not have notice that two children who allegedly injured infant plaintiff on the bus were capable of dangerous conduct:

Schools are under a duty to adequately supervise children in their charge, and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . Schools are not, however, “insurers of [the] safety [of students] . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students”… . A school bus operator owes the “very same duty to the students entrusted to its care and custody”… . In cases involving injury caused by the acts of fellow students, to establish a breach of the duty to provide adequate supervision, plaintiffs must show that school authorities had “sufficiently specific knowledge or notice of the [alleged] dangerous conduct” … .

\Here, the defendants established their prima facie entitlement to judgment as a matter of law by producing evidence that they had no knowledge or notice of the infant perpetrators’ dangerous conduct, as there was no record of any inappropriate conduct by them, sexual or otherwise, prior to the incident … . Champagne v Lonero Tr., Inc., 2018 NY Slip Op 03959, Second Dept 6-6-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SCHOOL BUSES  (NEGLIGENT SUPERVISION, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION  (EDUCATION-SCHOOL LAW, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ASSAULT (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT)

The Second Department determined plaintiff was required, pursuant to the Education Law, to file a notice of claim in an action alleging a violation of the NYS Human Rights Law:

Contrary to the plaintiff’s contention, since her complaint seeks both equitable relief and the recovery of damages, the filing of a notice of claim within three months after her claim arose was a condition precedent to the maintenance of this action against the defendants Department of Education of the City of New York (hereinafter Department of Education) and Chancellor Carmen Fariña (see Education Law 3813[1]… ). In contrast to General Municipal Law §§ 50-e(1) and 50-i(1), Education Law § 3813(1) broadly requires the filing of a notice of claim as a condition precedent to an “action . . . for any cause whatever,” which includes the plaintiff’s causes of action pursuant to the New York State Human Rights Law (see Executive Law § 296). … Further, the plaintiff was not excused from the notice of claim requirement since her action does not seek to vindicate a public interest … , and does not seek judicial enforcement of a legal right derived through enactment of positive law … .

The Supreme Court improperly determined that the plaintiff was required to serve a notice of claim upon the defendant City of New York … . Nonetheless, since this action relates to the plaintiff’s employment with the Department of Education, the plaintiff failed to state a cause of action against the City, which is a legal entity distinct from the Department of Education … . Seifullah v City of New York, 2018 NY Slip Op 03867, Second Dept 5-30-18

​EDUCATION-SCHOOL LAW (NOTICE OF CLAIM, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, HUMAN RIGHTS LAW, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))/HUMAN RIGHTS LAW (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, EDUCATION LAW REQUIRES THAT PLAINTIFF FILE A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR AN ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION ALLEGING A VIOLATION OF THE NYS HUMAN RIGHTS LAW (SECOND DEPT))

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SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT).

The Second Department determined that Supreme Court used the wrong criteria for analyzing whether plaintiffs’ motion for leave to file a late notice of claim should have been granted. Plaintiffs’ child was seriously injured in a game at school which was supervised by teachers. In 2016 the Court of Appeals (Matter of Newcomb) held that a plaintiff must make an initial showing that the school would not be prejudiced by a late notice, then the school must come forward with evidence it would be prejudiced. Supreme Court had analyzed the criteria under the existing law at the time, which was changed by Matter of Newcomb. The Second Department found, under the Matter of Newcomb criteria, plaintiffs had presented sufficient proof of a lack of prejudice to shift the burden to the school. The matter was remitted for analysis under the current law:

The plaintiffs submitted an affidavit from the infant plaintiff’s father in which he averred that he received a call from school personnel informing him about his child’s injury and requesting his presence at the school. When the father arrived at the school minutes later, he observed an assistant principal, two security guards, the school nurse, and New York City Fire Department personnel attending to the situation and the injuries of his daughter. At that time, the infant plaintiff’s father was informed that his daughter was playing a game with other children wherein they were jumping on each other’s backs. He also learned that this activity occurred under the supervision of three or four teachers, two of whom were named in his affidavit. The infant plaintiff was transported by ambulance from the school to the hospital. The infant plaintiff allegedly fractured the tibia and fibula of her right leg, and underwent surgery as a result of her injuries. Given the evidence of the number of school personnel attending to the situation, the reporting of the incident to the infant plaintiff’s father, and the seriousness of the alleged injuries, the plaintiffs argued that a number of reports would likely have been prepared, and that such reports were in the possession of the defendants. Under certain circumstances, this Court has recognized that the “existence of reports in [a defendant’s] own files concerning . . . facts and circumstances'”of an incident may be “the functional equivalent of an investigation” … . …

Given that Matter of Newcomb was decided during the pendency of this appeal, and since the Supreme Court relied upon this Court’s prior authority, which had placed the sole burden on the plaintiffs to show that the defendants were not substantially prejudiced by the delay in filing, the defendants did not have an opportunity to submit evidence to make their particularized evidentiary showing in the manner set forth in Matter of Newcomb. The court, therefore, did not have the opportunity to weigh such evidence in consideration of the plaintiffs’ motion. N.F. v City of New York, 2018 NY Slip Op 03663, Second Dept 5-23-18

​EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, NOTICE OF CLAIM, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NEGLIGENCE SUPERVISION, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM,  SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NEGLIGENCE SUPERVISION, SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT))

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ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined defendant school district’s motion to set aside the verdict for legal insufficiency should have been granted. Plaintiff assistant principal sued the district after she was injured breaking up a fight between students. She had previously been injured by a student and had complained that more security was needed on the floor where she was hurt. The Second Department explained that plaintiff could not recover unless a special relationship with the school district had been proven:

On a legal sufficiency challenge, whether made pursuant to CPLR 4401 at the close of the plaintiffs’ case or pursuant to CPLR 4404(a) to set aside the jury verdict, the relevant inquiry is whether there is any rational process by which the trier of fact could base a finding in favor of the nonmoving party … .

Absent the existence of a special relationship between the defendants and the injured plaintiff, liability may not be imposed on the defendants for the breach of a duty owed generally to persons in the school system and members of the public … . A special relationship can be formed, inter alia, if the defendants voluntarily assumed a special duty to the injured plaintiff upon which she justifiably relied … . In order to succeed on this theory, the plaintiffs were required to establish four elements: (1) an assumption by the defendants, through promises or actions, of an affirmative duty to act on behalf of the injured plaintiff; (2) knowledge on the part of defendants’ agents that inaction could lead to harm; (3) some form of direct contact between the defendants’ agents and the injured plaintiff; and (4) the injured plaintiff’s justifiable reliance on the defendants’ affirmative undertaking … . Morgan-Word v New York City Dept. of Educ., 2018 NY Slip Op 03673, Second Dept 5-23-18

​EDUCATION-SCHOOL LAW (ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, MUNICIPAL LAW, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, NEGLIGENCE, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NEGLIGENCE, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/VERDICT, MOTION TO SET ASIDE  (ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 4404 (SET ASIDE VERDICT, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SPECIAL RELATIONSHIP (MUNICIPAL LAW, EDUCATION-SCHOOL LAW, ASSISTANT PRINCIPAL INJURED BREAKING UP A STUDENT FIGHT DID NOT DEMONSTRATE A SPECIAL RELATIONSHIP WITH THE SCHOOL DISTRICT, MOTION TO SET ASIDE THE VERDICT AS NOT SUPPORTED BY SUFFICIENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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