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ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT SUBJECT TO THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined, among other things, the arbitration of the breach contract claim did not preclude tort actions against the school defendants by a former student and his parents. The Second Department further determined Supreme Court should not have dismissed causes of action against the school on grounds not raised by the parties, should not have dismissed causes of action against a party which did not move for dismissal, and the four-month Article 78 statute of limitations, which usually applies to actions against schools, did not apply to the tort causes of action raised here. The allegations included bullying and an improper relationship between the student and certain defendants:

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On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” … . The complaint must be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true … . Broadly construed, the allegations, inter alia, of an “inappropriate relationship” between the plaintiff’s son and Stowell, an instructor or teacher at Knox School, the allegations of multiple communications from Stowell to the son around the time of his temporary “disappearance” from school and home in late 2012, and the allegations that Stowell refused to cooperate with a police investigation, suffice to state causes of action sounding in negligence … , intentional infliction of emotional distress … , and negligent infliction of emotional distress … . Cheslowitz v Board of Trustees of the Knox Sch., 2017 NY Slip Op 08807, Second Dept 12-20-17

 

NEGLIGENCE (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CIVIL PROCEDURE  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CPLR 3211 (a)(7)  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))

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NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the Department of Education’s (DOE’s) motion for summary judgment in this negligent hiring and retention action was properly denied. The complaint alleged that a school janitor called plaintiff’s daughter “retarded” and “bitch” in front of other students. The DOE argued the janitor was an independent contractor, not an employee, and therefore the DOE could not be liable under the doctrine of respondeat superior. However, the proof of the janitor’s independent contractor status was deemed insufficient to support summary judgment. The Second Department went on to find that the intentional infliction of emotional distress, prima facie tort, and slander causes of action against the DOE should have been dismissed:

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As to the cause of action to recover damages for intentional infliction of emotional distress, the defendants established, prima facie, as a matter of law, that the isolated incident of name calling by the janitor, while unquestionably objectionable, did not rise to the level of extreme and outrageous conduct required to sustain such a cause of action … . As to the cause of action to recover damages for slander, the defendants established, prima facie, as a matter of law, that the janitor’s statements were nonactionable expressions of opinion, and not facts, about the plaintiff’s daughter… . Finally, as to the cause of action to recover damages for prima facie tort, the defendants established, prima facie, that the plaintiff did not incur special damages, a necessary element of the prima facie tort cause of action … . Gadson v City of New York, 2017 NY Slip Op 08657, Second Dept 12-13-17

 

EDUCATION-SCHOOL LAW (NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/DEFAMATION (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/NEGLIGENT HIRING AND RETENTION (EDUCATION-SCHOOL LAW, NEGLIGENT HIRING AND RETENTION CAUSE ACTION BASED UPON A JANITOR’S CALLING PLAINTIFF’S DAUGHTER NAMES PROPERLY SURVIVED SUMMARY JUDGMENT, PROOF JANITOR WAS AN INDEPENDENT CONTRACTOR INSUFFICIENT, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DEFAMATION, AND PRIMA FACIE TORT CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

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SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT).

The Third Department determined a substitute teacher had not been given reasonable assurance of employment following the summer break and should not have been denied unemployment benefits on that ground:

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This Court has well-established precedent interpreting the identical phrase in Labor Law § 590 (10), “reasonable assurance,” regarding two successive academic years or terms to require “a representation by the employer” as to future employment . This representation often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities … .

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Here, it is uncontested that the employer never sent any letter to claimant or provided him with any other form of notice that made a representation regarding claimant’s employment after the recess. Matter of Papapietro (Commissioner of Labor), 2017 NY Slip Op 08596, Third Dept 12-7-17

 

UNEMPLOYMENT INSURANCE (TEACHERS, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/EDUCATION-SCHOOL LAW (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/LABOR LAW (UNEMPLOYMENT INSURANCE, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/TEACHERS (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/E

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PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s (Department of Education’s, DOE’s) motion for summary judgment in this negligent supervision action should not have been granted. Plaintiff, after a confrontation in the school cafeteria, was later beaten up by the same students involved in the cafeteria confrontation. At least one of the attackers had assaulted a student before and the attackers were known to be in a gang. The Second Department determined the DOE’s proof did not sufficiently demonstrate a lack of notice or the provision of adequate security:

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Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the DOE had actual or constructive notice of the fellow students’ potential for causing harm, and whether, under the circumstances, the DOE provided adequate supervision at the end of the lunch period in the area where the assault occurred… .. The defendants failed to proffer any evidence demonstrating that the DOE lacked actual or constructive notice of any prior violent behavior by any of the infant plaintiff’s assailants. Moreover, given the witnesses’ testimony regarding the disciplinary history of one of the infant plaintiff’s assailants, there were triable issues of fact as to whether the DOE had specific knowledge of that student’s dangerous propensities … . The defendants failed to proffer sufficient evidence demonstrating the general security measures at the school, including the number of school safety officers on duty, where the school safety officers were assigned in the vicinity of the cafeteria and stairwell, and the frequency of violence in the hallways and stairwells between class periods and after lunch.

Contrary to the defendants’ contentions, they also failed to eliminate triable issues of fact as to whether inadequate security was a proximate cause of the infant plaintiff’s injuries… . In determining whether an incident occurs “in so short a span of time that even the most intense supervision could not have prevented it” … , “[t]he issue is not the speed of the punch, but the circumstances leading up to and surrounding” the incident… .. According to the infant plaintiff’s section 50-h hearing testimony, the four assailants left the cafeteria prior to the end of the lunch period and were able to block access to the stairwell when the lunch period ended. There was an absence of supervisory personnel or security in the subject stairwell when it would be expected that a large number of students would be exiting the cafeteria and using that stairwell … . “Proximate cause is a question of fact for the jury where varying inferences are possible,” and “[p]roper supervision depends largely on the circumstances surrounding the event” … . Here, the circumstances leading up to and surrounding the assault upon the infant plaintiff raised triable issues of fact as to whether adequate supervision would have prevented the assault. K.J. v City of New York, 2017 NY Slip Op 08508, Second Dept 12-6-17

 

NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION,   PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENCE PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, rejected the school’s argument that it was immune from zoning restrictions. The school had erected an electronic sign which violated the zoning code and the zoning board had denied the school’s application for a variance:

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… [T]he Court of Appeals noted that “… general rules . . . were interpreted by some courts to demand a full exemption from zoning rules for all educational and church uses” — an interpretation that “is mandated neither by the case law of our [s]tate nor common sense” … . The Court clarified that it never intended to “render municipalities powerless in the face of a religious or educational institution’s proposed expansion, no matter how offensive, overpowering or unsafe to a residential neighborhood the use might be,” and renewed its rejection of the existence of “any conclusive presumption of an entitlement to an exemption from zoning ordinances” for schools … . The Court thus concluded that “there are many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals [and, i]n those instances, the institution may be properly denied” … . Accordingly, the Court held that the presumed beneficial effects of schools and churches “may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like,” because the “inherent beneficial effects . . . must be weighed against their potential for harming the community” … . * * *

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Because petitioner was not immune from and was, therefore, subject to the Town’s zoning ordinances, we must address whether the ZBA [zoning board of appeals] properly denied petitioner’s application for a variance. The Town and the ZBA did not refuse petitioner the opportunity to install any sign. Rather, the ZBA rejected an application for permission to install an electronic message center sign, which is prohibited in the Town and which also failed to comply with at least three additional size and location requirements of the signage provisions of the Town’s zoning ordinance. The ZBA provided rational reasons for its determination, including a concern for traffic safety due to the sign’s brightness and potential to be more distracting and hazardous to passing motorists than an ordinary sign … . That determination was not arbitrary or capricious. Matter of Ravena- Coeymans-Selkirk Cent. Sch. Dist. v Town of Bethlehem, 2017 NY Slip Op 08428, Third Dept 11-30-17

 

ZONING (SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/EDUCATION-SCHOOL LAW (ZONING, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/VARIANCES (SCHOOLS, SIGNS, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))/SIGNS (ZONING, VARIANCES, SCHOOLS ARE NOT IMMUNE FROM ZONING REGULATIONS, ZONING BOARD PROPERLY DENIED SCHOOL DISTRICT’S VARIANCE APPLICATION FOR AN ELECTRONIC SIGN (THIRD DEPT))

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TRANSFER OF ASSISTANT SUPERINTENDENT TO A LOWER PAYING JOB WAS NOT DISCIPLINE UNDER THE EDUCATION LAW AND DID NOT CONSTITUTE A DUE PROCESS VIOLATION (THIRD DEPT).

The Third Department determined that the transfer of a school assistant superintendent to another job with lower pay did not violate the Education Law (pay reduction was not discipline) or due process (deprivation of property without due process of law):

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… [W]e conclude that the term “discipline[]” in Education Law § 3020 refers not merely to action that has an adverse impact, but adverse action that is motivated by a punitive intent.

Case law applying and interpreting Education Law § 3020 supports our reading of the statute. “The purpose of [Education Law § 3020] is to protect [tenured educators] from arbitrary imposition of formal discipline. It was not intended to interfere with the day-to-day operation of the educational system” … . * * *

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Petitioner’s reliance on cases involving employees covered under Civil Service Law § 75, which prohibits imposition of a “disciplinary penalty” without a hearing, is misplaced. While it has been held that a lateral transfer of a tenured civil service employee that results in a diminution of salary or benefits constitutes a form of discipline requiring compliance with the procedural safeguards of Civil Service Law § 75 … , this is so because Civil Service Law § 75 specifically provides that a “demotion in grade and title” constitutes a disciplinary penalty … . No comparable statutory language exists within the Education Law. * * *

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Here, petitioner’s right to receive the specific level of compensation earned in his position as Assistant Superintendent derived not from any tenure rights granted under the Education Law, but solely from the terms of his employment contract. Such contract expired on June 30, 2012, prior to the alleged deprivation. Moreover, the contract makes clear that it does not provide for the payment of salary beyond that date and that renewal or extension of its terms could only be effectuated by agreement of the Board. Under these circumstances, petitioner did not have a constitutionally protected property interest in the compensation and benefits derived from his employment contract beyond its June 30, 2012 expiration date … . Matter of Soriano v Elia, 2017 NY Slip Op 08431, Third Dept 11-30-17

 

EDUCATION-SCHOOL LAW (EMPLOYMENT LAW, TRANSFER OF ASSISTANT SUPERINTENDENT TO A LOWER PAYING JOB WAS NOT DISCIPLINE UNDER THE EDUCATION LAW AND DID NOT CONSTITUTE A DUE PROCESS VIOLATION (THIRD DEPT))/EMPLOYMENT LAW (EDUCATION-SCHOOL LAW,  TRANSFER OF ASSISTANT SUPERINTENDENT TO A LOWER PAYING JOB WAS NOT DISCIPLINE UNDER THE EDUCATION LAW AND DID NOT CONSTITUTE A DUE PROCESS VIOLATION (THIRD DEPT))

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STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the complaint in this negligent supervision case was properly dismissed. The student plaintiff had cerebral palsy and was being supervised at recess by an aide who was ten feet aware. The student was playing a game which was supervised by an athletic director when the student plaintiff and another student collided:

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The infant plaintiff … [alleged] that the defendants were negligent in failing to provide adequate supervision, and in allowing the infant plaintiff to participate in the wall ball game. … [T]he defendants moved for summary judgment … contending that they provided adequate supervision to the children during recess, that the infant plaintiff’s Individualized Education Plan did not restrict him from playing during recess, and that … any alleged failure to provide adequate supervision was not a proximate cause of the infant plaintiff’s injuries because the collision occurred suddenly and unexpectedly.

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“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”… . Schools are not, however, insurers of their students’ safety, and may not be held liable ” for every thoughtless or careless act by which one pupil may injure another'” … . Moreover, when 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 a proximate cause of the injury … .

Here, the defendants … [demonstrated] that they provided adequate supervision to the infant plaintiff during recess… and, in any event, that the accident was caused by a sudden and spontaneous collision which could not have been prevented by more intense supervision … . Tzimopoulos v Plainview-Old Bethpage Cent. Sch. Dist., 2017 NY Slip Op 08296, Second Dept 11-22-17

 

NEGLIGENCE (SUPERVISION, SCHOOLS, STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, STUDENT WITH CEREBRAL PALSY COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME, SUPERVISION WAS ADEQUATE AND INJURY WAS DUE TO A SPONTANEOUS ACT WHICH SUPERVISION COULD NOT PREVENT, SCHOOL’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED (SECOND DEPT))

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PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT).

The Second Department determined plaintiff’s negligence cause of action against the school district and another student were properly dismissed under the doctrine of primary assumption of risk. Plaintiff, a student, was injured in a basketball game during gym class when he was allegedly kicked by the student defendant. Plaintiff chose to play basketball among other possible activities. Therefore he could not take advantage of the “inherent compulsion” doctrine. Plaintiff’s assertion at the 50-h hearing that he was intentionally kicked did not raise a question of fact because the pleadings did not include an intentional tort or any mention of intentional conduct:

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Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “[B]y freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty… . However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … .

Here, the defendants established, prima facie, that the plaintiff voluntarily engaged in the activity of basketball and was aware of the risks inherent in the activity, including the possibility of contact or collision with other participants… …

Also contrary to the plaintiff’s contention, he did not raise a triable issue of fact as to the application of the inherent compulsion doctrine, which “provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior” … . The plaintiff testified at his deposition that he chose to play basketball from a number of options. Consequently, the inherent compulsion doctrine is inapplicable … . Hanson v Sewanhaka Cent. High Sch. Dist., 2017 NY Slip Op 07711, Second Dept 11-8-17

 

NEGLIGENCE (PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/EDUCATION-SCHOOL LAW (PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/ASSUMPTION OF RISK (EDUCATION-SCHOOL LAW, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/INHERENT COMPULSION DOCTRINE (EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))/GYM CLASS EDUCATION-SCHOOL LAW, ASSUMPTION OF RISK, PRIMARY ASSUMPTION OF RISK PRECLUDED RECOVERY FOR INJURY DURING GYM CLASS, INHERENT COMPULSION DOCTRINE INAPPLICABLE (SECOND DEPT))

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SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a matter concerning the proper pay for a teacher was arbitrable under the collective bargaining agreement (CBA). The school districts (petitioner’s) motion to permanently stay arbitration should not have been granted:

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… [R]espondent (union) filed a grievance on behalf of one of its members, a teacher, alleging that petitioner had violated the provisions of the CBA that require petitioner to maintain salary schedules in an ethical manner, to adjust teacher salaries based on graduate credits earned, and to abide by the salary schedules. …

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It is well settled that courts must apply a two-part test to determine whether a matter is subject to arbitration under a CBA … . “First, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance’ ” … . If there is no such prohibition, the court must examine the CBA to determine “whether the parties in fact agreed to arbitrate the particular dispute” … . …

… [T]he arbitration of disputes concerning public school teachers’ salaries is not proscribed by law or public policy, and thus only the second prong is at issue … .

… The dispute concerns whether petitioner placed the teacher at the correct step of the salary schedule and paid her properly based on the graduate credits that she earned, and thus it is reasonably related to the general subject matter of the CBA …  Issues concerning whether the CBA supports a grievance arising from the initial placement of a new employee on the salary schedule, as opposed to the proper payment of an existing employee, “are matters involving the scope of the substantive [CBA] provisions and, as such, are for the arbitrator” to resolve … . … [T]he clause in the CBA stating that an arbitrator has “no power to alter, add to, or detract from” the CBA does not render the dispute nonarbitrable … . Matter of Thousand Is. Cent. Sch. Dist. v Thousand Is. Educ. Assn., 2017 NY Slip Op 06759, Fourth Dept 9-29-17

ARBITRATION (EMPLOYMENT LAW, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EMPLOYMENT LAW (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EDUCATION-SCHOOL LAW  (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/TEACHERS (EMPLOYMENT LAW, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/UNIONS (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))

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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking leave to file a late notice of claim should have been denied. Although the school was aware of the student’s injury, it was not timely made aware of the negligent supervision claim. The fact that the school did not demonstrate prejudice from the delay was not determinative:

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… [T]he petitioner failed to establish that the School District acquired actual knowledge of the essential facts constituting the claim within 90 days after the child’s accident or a reasonable time thereafter. Although the school nurse prepared a “Notification of Injury” form, which the petitioner signed nearly two months after the accident, this form merely indicated that the child received a laceration and contusion on the outer corner of his left eye when he fell on the steps of the large slide. Thus, the form did not provide the School District with timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising its students, and in the hiring and training of school personnel … . Therefore, the School District had no reason to conduct a prompt investigation into the purported negligence … .

… [P]etitioner failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim. The child’s infancy alone, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . Moreover, to the extent that the petitioner attributed her delay to the need to determine that the proper entity to sue was the School District, a readily ascertainable fact, such a claim does not constitute a reasonable excuse… .

While the petitioner did satisfy her initial burden of showing a lack of substantial prejudice to the School District as a result of her late notice, and the School District failed to make a “particularized evidentiary showing” of substantial prejudice in response … , the presence or absence of any one factor is not necessarily determinative in deciding whether permission to serve a late notice of claim should be granted… . A balancing of the relevant factors … demonstrates that the Supreme Court improvidently exercised its discretion in granting the petition … . McClancy v Plainedge Union Free Sch. Dist., 2017 NY Slip Op 06651, Second Dept 9-27-17

 

NEGLIGENCE (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION, NEGLIGENT (EDUCATION-SCHOOL LAW, (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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