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SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT.

The Third Department, reversing Supreme Court, reinstated the petitioner as a student at Skidmore College and expunged from his school record any reference to the sexual misconduct allegations and findings which led to his expulsion. The court noted that, as a private college, the due process requirements imposed upon a state school were not applicable. However, the Third Department concluded the school’s failure to follow its own procedures severely prejudiced petitioner. The decision is too detailed to fully summarize here. The following quotation illustrates the nature of the court’s criticism of the way the college handled this matter:

Petitioner … contends that respondent failed to follow its own procedures in implementing the disciplinary process. Where, as here, no hearing is required by law, a court reviewing a private university’s disciplinary determination must determine “whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious” … . The determination must be annulled only where there has been a lack of substantial compliance, or where the determination lacks a rational basis … . Perfect adherence to every procedural requirement is not necessary to demonstrate substantial compliance … . Nevertheless, we find that there were multiple failures that here, taken together, demonstrated a lack of substantial compliance.

Respondent’s first such failure occurred at the outset of the investigation. Section XI of respondent’s 2015-2016 policy provides that an accused student must be given notice through a “[f]ormal [c]omplaint,” which must “includ[e] the date, time, location and factual allegations concerning a violation” … . The complaint provided to petitioner stated the date, time and location of the incident, but included no factual allegations identifying the specific actions that were alleged to be policy violations. Instead, it merely provided the text of the two policy provisions that petitioner was accused of violating — and nothing more. Thus, the complaint provided petitioner with no notice of the specific conduct that formed the basis of the alleged violations. Contrary to respondent’s argument, this failure was not remedied by the fact that the complaint recited the text of the provisions. Both provisions include such a broad range of actions that it would be impossible for an accused student to discern what particular conduct he or she was alleged to have committed. Matter of Doe v Skidmore Coll., 2017 NY Slip Op 05654, 3rd Dept 7-13-17

EDUCATION-SCHOOL LAW (SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)/COLLEGES AND UNIVERSITIES (SEXUAL MISCONDUCT INVESTIGATIONS, SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)/SEXUAL MISCONDUCT INVESTIGATIONS (COLLEGES AND UNIVERSITIES, SKIDMORE COLLEGE STUDENT REINSTATED AFTER EXPULSION, SCHOOL DID NOT FOLLOW ITS OWN PROCEDURES IN THE SEXUAL MISCONDUCT INVESTIGATION, SEVERELY PREJUDICING THE STUDENT 3RD DEPT)

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LAWSUIT ALLEGING THE FAILURE TO PROVIDE SOUND BASIC EDUCATION CAN PROCEED, BUT ONLY WITH RESPECT TO SCHOOL DISTRICTS IN NEW YORK CITY AND SYRACUSE. ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined a lawsuit alleging school districts’ failure to provide the sound basic education guaranteed by the state constitution could proceed, but only with respect to school districts in New York City and Syracuse. The attempt to state causes of action statewide was rejected. The complaint must specifically allege the failure district by district. A second lawsuit, alleging failure to properly fund the schools in New York City, brought by different plaintiffs [Aristy-Farer], was dismissed in its entirety:

The NYSER [New Yorkers for Students’ Educational Rights] plaintiffs have sufficiently alleged deficient inputs and outputs with respect to New York City and, although in less detail, Syracuse, that give defendants adequate notice of what a potential remedy could require of them. In that regard, the NYSER complaint alleges deficient inputs (a lack of qualified teachers and principals, low levels of support staff, outdated curricula, unsuccessful English as a Second Language programs, overly large class sizes, lack of basic materials such as textbooks and chalk, a reduction in after-school and summer programs, and inadequate and unclean buildings and facilities) with respect to Syracuse and New York City, with some degree of specificity. The complaint further alleges deficient outputs with respect to those school districts (poor standardized test proficiency, high failure and drop-out rates, poor English proficiency, and inability to meet basic requirements to gain admission to gain admission to City or State colleges because their high schools do not offer basic course requirements).

The complaint also alleges a causal link between inadequate State funding and the failure of those two school districts to provide a sound basic education. … [G]oing forward, plaintiffs here will need to adduce evidence at trial proving, on the basis of current data, that the State has breached its constitutional obligation to provide a sound basic education to students in public schools. Should plaintiffs be successful, it will be up to the State to craft an appropriate response, subject to judicial review, because the courts have “neither the authority, nor the ability, nor the will, to micromanage education financing” … . Aristy-Farer v State of New York, 2017 NY Slip Op 05175, CtApp 6-27-17

 

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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY.

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim should not have been granted in this gym-class injury case. There was no showing the school was made aware of its potential liability during the 90 days following the injury. Although a medical claim form was filled out and submitted to the school four days after the incident, the description of the incident did not alert the school to potential liability for the fall from gym equipment:

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Although a medical claim form was prepared and submitted to the School District four days after the accident occurred, it merely indicated that the infant petitioner lacerated his eyebrow and fractured his wrist when he fell after hanging from a pull-up bar during physical education class. Where, as here, “the incident and the injury do not necessarily occur only as the result of fault for which [the School District] may be liable”… , the School District’s “knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim'” … . Rather, “[i]n order to have actual knowledge of the essential facts constituting the claim, [a school district] must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim” … . Contrary to the petitioners’ contention, the medical claim form did not provide the School District with actual knowledge of the essential facts underlying the petitioners’ claims that, inter alia, it was negligent in its ownership, operation, management, maintenance, and control of the area where the accident occurred, that it was negligent in its hiring, training, and supervision of its employees and agents, or that its employees were negligent in supervising the injured petitioner and responding to the accident … .

Furthermore, the petitioners failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition … . While the injured petitioner here is an infant, the failure to serve a timely notice of claim and the delay in seeking leave to serve a late notice of claim were not the product of the infant petitioner’s infancy

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Finally, as to the issue of substantial prejudice, the petitioners presented no evidence or plausible argument that their delay in serving a notice of claim did not substantially prejudice the School District in defending on the merits … . The assertion contained in the affirmation of the petitioners’ attorney which was submitted in support of their motion, that the School District was not substantially prejudiced by the delay in serving a notice of claim, was conclusory and, without more, inadequate to satisfy the petitioners’ minimal initial burden with respect to this factor … . Matter of D.M. v Center Moriches Union Free Sch. Dist., 2017 NY Slip Op 05090, 2nd Dept 6-21-17

 

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/

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SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW).

The Third Department, in a full-fledged opinion by Justice Devine, reversing (modifying) Supreme Court, determined the respondent school district’s unilaterally contracting with an outside party for a prekindergarten program, without first negotiating with the teachers’ union, did not constitute an improper practice:

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Respondent Lawrence Union Free School District (hereinafter the District) implemented a universal prekindergarten program pursuant to Education Law § 3602-e. Program tasks were first performed by employees working in a collective bargaining unit exclusively represented by petitioner [teachers’ union] but, in 2012, the District unilaterally contracted with an outside eligible agency to staff and operate it. Petitioner filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB) alleging a violation of the Public Employees’ Fair Employment Act (… the Taylor Law… ), namely, that the District did not negotiate in good faith about outsourcing the work … . * * *

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The Legislature … created a “comprehensive package for a school district’s decision to” fashion a prekindergarten program plan and “withdr[e]w that decision from the mandatory bargaining process,” crafting a mechanism for public consultations that included affected collective bargaining units and left little time for traditional collective bargaining… . A school district was empowered by Education Law § 3602-e (5) (d) to contract without interference in implementing a plan crafted after that process … .

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… “[T]here is no absolute bar to collective bargaining over” the outsourcing of prekindergarten work to an outside agency… and, as we have held, an agreement reached after collective bargaining on the subject is enforceable… . Inasmuch as the clear language of Education Law § 3602-e compels the conclusion that negotiation is not required to begin with, however, PERB was right to determine that the absence of negotiation did not constitute an improper practice under the Taylor Law. This does not preclude petitioner from seeking impact negotiations in the future. Matter of Lawrence Teachers’ Assn., NYSUT, AFT, NEA, AFL-CIO v New York State Pub. Relations Bd., 2017 NY Slip Op 04944, 3rd Dept 6-15-17

 

EDUCATION-SCHOOL LAW (TAYLOR LAW, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/EMPLOYMENT LAW (TEACHERS’ UNION, TAYLOR LAW, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/COLLECTIVE BARGAINING AGREEMENT (EDUCATION-SCHOOL LAW, PREKINDERGARTEN PROGRAM, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/PREKINDERGARTEN PROGRAM (EDUCATION-SCHOOL LAW, TAYLOR LAW, TEACHERS’ UNION, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/TAYLOR LAW (EDUCATION-SCHOOL LAW, PREKINDERGARTEN PROGRAM, TEACHERS’ UNION, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/IMPROPER PRACTICE (EDUCATION-SCHOOL LAW, COLLECTIVE BARGAINING AGREEMENT, TEACHERS’ UNION, PREKINDERGARTEN PROGRAM,  SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))

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MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE.

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for leave to file a late notice of claim should have been granted. The claim alleged a school bus attendant sexually assaulted a developmentally disabled student. The school investigated the incident (which included reviewing video) and fired the bus attendant within 90 days of the last incident. The notice of claim was filed two days late if the date of the last sexual assault is used as the start of the 90 days:

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… [A] a matter of discretion, and upon consideration of all relevant facts and circumstances, courts may grant permission to claimants to serve late notices of claim. In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits … , and “whether the claimant was an infant, or mentally or physically incapacitated” … .”While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance”… . …

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Under the circumstances of this case, the School District acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose… . Pursuant to her individualized education plan (IEP), the School District transported K.A. and hired the bus attendant who sexually assaulted her during the course of his employment. Thus, an employee of the School District was not only “directly involved” in the incident … , but he committed the intentional tortious conduct giving rise to the claim. Further, the School District itself conducted the investigation that yielded the bus attendant’s admission of abuse, and reported its findings to the police. In addition, the School District terminated the bus attendant … prior to his conviction. Accordingly, the School District acquired timely, actual knowledge of the essential facts constituting the claim, which enabled it to conduct an appropriate investigation … .

With respect to the issue of whether the School District would have been prejudiced by a late notice of claim, the plaintiffs were not required to make an extensive initial showing, merely “some evidence or plausible argument that supports a finding of no substantial prejudice” … .  Under the circumstances present here, the fact that the School District acquired actual knowledge of the essential facts constituting the claim within only a few weeks of the abuse, coupled with the fact that the notice of claim was served only two days late, demonstrated that a late notice would not have substantially prejudiced the School District … .

Further, with respect to the claims asserted on behalf of [plaintiff] K.A., as distinguished from those asserted by the parents on their own behalf, K.A.’s significant developmental disabilities weigh in favor of granting leave to serve a late notice of claim or deem a late notice served nunc pro tunc … . The record contains evidence that her NIQ score of 42 fell in the “very poor range of cognitive functioning,” that she functioned at a 4th grade learning level, and that she had “no safety awareness or self-preservation skills.” … . K.A. v Wappingers Cent. Sch. Dist., 2017 NY Slip Op 04824, 2nd Dept 6-14-17

 

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)

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PETITIONER SUBMITTED SUFFICIENT EVIDENCE THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, THE SCHOOL DISTRICT PROVIDED NO EVIDENCE OF PREJUDICE, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.

The Third Department determined petitioner’s motion for leave to file a late notice of claim should have been granted. Petitioner injured his knee when he stepped into a depression in the school’s parking lot. The delay in filing the notice was due to his not being aware of the nature of the injury until he underwent an MRI months after the incident. Supreme Court deemed the excuse for the delay adequate but held plaintiff did not demonstrate the school district was not prejudiced by the delay. The Third Department found that petitioner’s proof that the defect in the parking lot was essentially unchanged was sufficient to shift the burden to the school district to show prejudice, which it did not do:

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A finding that respondent “is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record” … . “[T]he burden initially rests on the petitioner to show that the late notice will not substantially prejudice the [respondent]. Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice” … . Here, petitioner identified the precise location of the incident during his General Municipal Law § 50-h examination by marking a map with a box showing where the bus was parked as he stepped off into the depression, and he represented, through his attorney, that the parking lot defect had not changed since the time of the incident. Photographs of the defect, taken within a month of the incident, were not furnished to Supreme Court, although they had been given to the Workers’ Compensation Board in support of petitioner’s workers’ compensation claim. Respondent, despite being “in the best position to know and demonstrate whether it has been substantially prejudiced” … , offered absolutely no response to this contention, although it was required to rebut it “with particularized evidence” … . We note that Supreme Court’s observation that “[s]now plowing, traffic, weather, or even repairs performed in the interim could have altered the condition” is not based on any evidence in the record and, thus, constitutes the kind of unsupported assertion of prejudice that the Court of Appeals would deem “speculation and inference” … . Thus, the record is devoid of any basis to conclude that the 12-week delay in filing the notice of claim caused substantial prejudice to respondent. Matter of Kranick v Niskayuna Cent. Sch. Dist., 2017 NY Slip Op 04529, 3rd Dept 6-8-17

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, PETITIONER SUBMITTED SUFFICIENT EVIDENCE THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, THE SCHOOL DISTRICT PROVIDED NO EVIDENCE OF PREJUDICE, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, PETITIONER SUBMITTED SUFFICIENT EVIDENCE THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, THE SCHOOL DISTRICT PROVIDED NO EVIDENCE OF PREJUDICE, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED/NOTICE OF CLAIM (NEGLIGENCE, EDUCATION-SCHOOL LAW, PETITIONER SUBMITTED SUFFICIENT EVIDENCE THE SCHOOL DISTRICT WAS NOT PREJUDICED BY THE DELAY IN FILING A NOTICE OF CLAIM, THE SCHOOL DISTRICT PROVIDED NO EVIDENCE OF PREJUDICE, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED)

UNDER THE EDUCATION LAW, A CHARTER SCHOOL HAS THE AUTHORITY TO OVERSEE ITS OWN PRE-KINDERGARTEN PROGRAM, THERE IS NO STATUTORY AUTHORITY FOR CONTROL OF THE PROGRAM BY THE DEPARTMENT OF EDUCATION OR A SCHOOL DISTRICT.

The Third Department, in a full-fledged opinion by Justice McCarthy, reversing the Commissioner (Education) and Supreme Court, determined the Education Law did not allow the Department of Education (DOE) to regulate every aspect of a charter school’s pre-kindergarten program. The relevant statute specifically allows the charter school to oversee its own program:

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Initially, Education Law § 3602-ee (12) unambiguously provides charter entities with authority in regard to the programming and operations of prekindergarten programs funded pursuant to the statute. It provides, in relevant part, that “charter schools shall be eligible to participate in universal full-day pre[]kindergarten programs under [Education Law § 3602-ee], provided that all such monitoring, programmatic review and operational requirements under [Education Law § 3602-ee] shall be the responsibility of the charter entity and shall be consistent with the requirements under [Education Law article 56]” (Education Law § 3602-ee [12]). In this context, the term “all” could refer to “the whole amount, quantity, or extent of,” or “as much as possible,” or “every” or “any whatever” … . Regardless of the exact word sense of “all” that the Legislature intended, under any applicable plain and obvious meaning of the term, the Legislature’s use of the term “all” tasked the charter entity with full responsibility for the relevant “monitoring, programmatic review and operational requirements” for the relevant prekindergarten programs (Education Law § 3602-ee [12]) … . The plain meaning of the provision in no way indicates that another entity — such as a school district — holds concurrent responsibility or authority in this regard, let alone superior authority. Matter of DeVera v Elia, 2017 NY Slip Op 04522, 3rd Dept 6-8-17

EDUCATION-SCHOOL LAW (UNDER THE EDUCATION LAW, A CHARTER SCHOOL HAS THE AUTHORITY TO OVERSEE ITS OWN PRE-KINDERGARTEN PROGRAM, THERE IS NO STATUTORY AUTHORITY FOR CONTROL OF THE PROGRAM BY THE DEPARTMENT OF EDUCATION)/CHARTER SCHOOLS (EDUCATION LAW, CONTROL OVER PROGRAMS, UNDER THE EDUCATION LAW, A CHARTER SCHOOL HAS THE AUTHORITY TO OVERSEE ITS OWN PRE-KINDERGARTEN PROGRAM, THERE IS NO STATUTORY AUTHORITY FOR CONTROL OF THE PROGRAM BY THE DEPARTMENT OF EDUCATION)

CRITERIA FOR COURT REVIEW OF THE EXPULSION OF A STUDENT FROM A PRIVATE COLLEGE EXPLAINED.

The Second Department, upholding the expulsion of a student from a private college (Pratt Institute) based upon allegations of sexual harassment, explained the relevant court-review criteria:

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“[P]rivate schools are afforded broad discretion in conducting their programs, including decisions involving the discipline, suspension and expulsion of their students” … . “Judicial review of the actions of a private school in disciplinary matters is limited to a determination as to whether the school acted arbitrarily and capriciously, or whether it substantially complied with its own rules and regulations” … . Here, contrary to the petitioner’s contention, Pratt Institute informed him of the specific allegations against him, and substantially complied with its sexual harassment policy … . Matter of Ibe v Pratt Inst., 2017 NY Slip Op 04443, 2nd Dept 6-7-17

EDUCATION-SCHOOL LAW (CRITERIA FOR COURT REVIEW OF THE EXPULSION OF A STUDENT FROM A PRIVATE COLLEGE EXPLAINED)/COLLEGES (CRITERIA FOR COURT REVIEW OF THE EXPULSION OF A STUDENT FROM A PRIVATE COLLEGE EXPLAINED)

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PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

The Second Department determined Supreme Court properly granted the petition for pre-action disclosure of the identity of the person or persons who widely distributed an intimate photo of a portion of a high school student’s (the potential plaintiff’s) body and identified the student depicted in the photo. The purpose of the disclosure was to identify potential defendants. The facts were sufficient to support an action for intentional infliction of emotional distress:

“Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order” (CPLR 3102[c]…). “[D]isclosure to aid in bringing an action’ (CPLR 3102 [c]) authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants”… .. However, pre-action disclosure “may not be used to determine whether the plaintiff has a cause of action” … . This limitation is “designed to prevent the initiation of troublesome and expensive procedures, based upon a mere suspicion, which may annoy and intrude upon an innocent party” … . “Where, however, the facts alleged state a cause of action, the protection of a party’s affairs is no longer the primary consideration and an examination to determine the identities of the parties and what form or forms the action should take is appropriate” … .  Accordingly, “[a] petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action” … . * * *

Under New York law, a cause of action alleging intentional infliction of emotional distress “has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress”… . . In support of its argument that the petition failed to allege facts that would constitute a cognizable cause of action against the unidentified individual, the school contends that the petition failed to adequately allege extreme and outrageous conduct.

The element of outrageous conduct “serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff’s claim of severe emotional distress is genuine” … . ” Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'” … .  Indeed, “where severe mental pain or anguish is inflicted through a deliberate and malicious campaign of harassment or intimidation, a remedy is available in the form of an action for the intentional infliction of emotional distress” … . Here, assuming the truth of the facts alleged in the petition, the acts complained of could be found by a trier of fact to amount to extreme and outrageous conduct which cannot be tolerated in a civilized community … . Matter of Leff v Our Lady of Mercy Academy, 2017 NY Slip Op 04280, 2nd Dept 5-31-17

 

CIVIL PROCEDURE (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/EDUCATION-SCHOOL LAW (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/INTENTIONAL TORTS (INFLICTION OF EMOTIONAL DISTRESS, CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/EVIDENCE (CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/OUTRAGEOUS CONDUCT (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, CIVIL PROCEDURE, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/PHOTOGRAPHS (INTIMATE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/DISCLOSURE (PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)/PRE-ACTION DISCLOSURE (IDENTIFY DEFENDANTS, PRE-ACTION DISCLOSURE OF THE IDENTITY OF THE PERSON OR PERSONS WHO DISTRIBUTED AN INTIMATE PHOTO OF A PORTION OF A HIGH SCHOOL STUDENT’S BODY PROPERLY GRANTED, THE FACTS SUPPORTED A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

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PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER.

The Third Department determined defendant school district was entitled to summary judgment in this sports injury case. Plaintiff (Legac) was struck in the face by a baseball during tryouts held in the gymnasium (due to weather). The Third Department held that the school district demonstrated plaintiff had assumed the risk of injury. He was an experienced baseball player and was aware of the way the baseball was being hit by the coach and the way the baseball reacted when striking the gymnasium floor:

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While Legac testified that he believed that Potter was hitting the ball “too hard” and that the baseball traveled faster on the gymnasium floor than it would have on a baseball field, such conditions were open and obvious and clearly appreciated by Legac, who had the opportunity to watch the players ahead of him complete the ground ball fielding drill and had observed the ball interact with the flooring over three days of indoor tryouts … . Inasmuch as the conditions inherent in the indoor ground ball fielding drill were readily apparent to Legac and the risk of being struck by a ball was a reasonably foreseeable consequence of engaging in that drill, we find that defendants established their prima facie entitlement to summary judgment dismissing the complaint … . Legac v South Glens Falls Cent. Sch. Dist., 2017 NY Slip Op 04182, 3rd Dept 5-25-17

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/EDUCATION-SCHOOL LAW (SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/ASSUMPTION OF THE RISK (EDUCATION-SCHOOL LAW, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)/BASEBALL (EDUCATION-SCHOOL LAW, SPORTS, PLAINTIFF ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL DURING TRYOUTS CONDUCTED IN THE GYMNASIUM DUE TO WEATHER)

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