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SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS NEGLIGENT SUPERVISION ACTION BROUGHT BY INJURED STUDENT.

The Second Department determined the defendant school’s motion for summary judgment in this negligent supervision action was properly denied. The complaint alleged plaintiff’s fall was caused by students jumping up and down on a bridge:

… [T]he defendant, in support of its motion for summary judgment dismissing the complaint, failed to submit evidence sufficient to establish, prima facie, that it properly supervised the infant plaintiff or that its alleged negligent supervision was not a proximate cause of his injuries .. . J.M. v North Babylon Union Free Sch. Dist., 2016 NY Slip Op 08847, 2nd Dept 12-28-16

NEGLIGENCE (SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS NEGLIGENT SUPERVISION ACTION BROUGHT BY INJURED STUDENT)/EDUCATION-SHOOL LAW (SCHOOL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS NEGLIGENT SUPERVISION ACTION BROUGHT BY INJURED STUDENT)

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PROCEDURE FOR DETERMINING WHETHER RESPONDENT HAS BEEN PREJUDICED BY PETITIONER’S FAILURE TO TIMELY FILE A NOTICE OF CLAIM CLARIFIED.

The Court of Appeals, in a full-fledged opinion by Judge DeFiore, reversing the appellate division, clarified the procedure for establishing a school district or municipal corporation has been prejudiced by a delay in filing a notice of claim for a tort action. Here a student was injured by a car in the vicinity of the respondent school. The school had been made aware of the location and nature of the accident. After the 90-day notice of claim period had passed, petitioner learned there had been a sign erected by the school that may have had a role in the accident. In denying the motion for leave to file a late notice, Supreme Court placed the burden entirely on the petitioner to demonstrate the school was not prejudiced by the delay. The Court of Appeals clarified the relative burdens of proof on that issue:

We hold that the burden initially rests on the petitioner to show that the late notice will not substantially prejudice the public corporation. 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. * * *

The rule we endorse today — requiring a petitioner to make an initial showing that the public corporation will not be substantially prejudiced and then requiring the public corporation to rebut that showing with particularized evidence — strikes a fair balance. We recognize that a petitioner seeking to excuse the failure to timely comply with the notice requirement should have the initial burden to show that the public corporation will not be substantially prejudiced by the delay. The public corporation, however, is in the best position to know and demonstrate whether it has been substantially prejudiced by the late notice. Matter of Newcomb v Middle Country Cent. Sch. Dist., 2016 NY Slip Op 08581, CtApp 12-22-16

 

MUNICIPAL LAW (PROCEDURE FOR DETERMINING WHETHER RESPONDENT HAS BEEN PREJUDICED BY PETITIONER’S FAILURE TO TIMELY FILE A NOTICE OF CLAIM CLARIFIED)/EDUCATION-SCHOOL LAW (PROCEDURE FOR DETERMINING WHETHER RESPONDENT HAS BEEN PREJUDICED BY PETITIONER’S FAILURE TO TIMELY FILE A NOTICE OF CLAIM CLARIFIED)/NOTICE OF CLAIM (MUNICIPAL LAW, PROCEDURE FOR DETERMINING WHETHER RESPONDENT HAS BEEN PREJUDICED BY PETITIONER’S FAILURE TO TIMELY FILE A NOTICE OF CLAIM CLARIFIED)

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FACULTY MEMBERS SUFFICIENTLY ALLEGED BREACH OF CONTRACT CAUSE OF ACTION AGAINST UNIVERSITY BASED UPON POLICIES DESCRIBED IN THE FACULTY HANDBOOK.

The First Department, reversing Supreme Court, determined faculty members sufficiently alleged the policies in the university’s faculty handbook had the force of contract and therefore a breach of contract action was viable:

A university’s academic and administrative decisions require professional judgment and may only be reviewed by way of an article 78 proceeding to ensure that such decisions are not violative of the institution’s own rules and neither arbitrary nor irrational … . However, “[i]f the claim involves a matter of contractual right it may, of course, be vindicated in an action [at] law” … .

For the purpose of surviving respondents’ cross motion to dismiss, petitioners, tenured faculty members of respondent New York University’s School of Medicine, have sufficiently alleged that the policies contained in respondent’s Faculty Handbook, which “form part of the essential employment understandings between a member of the Faculty and the University,” have the force of contract … . Further, for the purposes of surviving respondents’ cross motion to dismiss, petitioners have sufficiently alleged that they had a mutual understanding with respondent that tenured faculty members’ salaries may not be involuntarily reduced. Additionally, petitioners have sufficiently alleged that they reasonably relied on oral representations by respondents that their salaries would not be involuntarily reduced. Matter of Monaco v New York Univ. & N.Y. Univ. School of Medicine, 2016 NY Slip Op 08467, 1st Dept 12-15-16

 

EMPLOYMENT LAW (FACULTY MEMBERS SUFFICIENTLY ALLEGED BREACH OF CONTRACT CAUSE OF ACTION AGAINST UNIVERSITY BASED UPON POLICIES DESCRIBED IN THE FACULTY HANDBOOK)/CONTRACT LAW (EMPLOYMENT LAW, FACULTY MEMBERS SUFFICIENTLY ALLEGED BREACH OF CONTRACT CAUSE OF ACTION AGAINST UNIVERSITY BASED UPON POLICIES DESCRIBED IN THE FACULTY HANDBOOK)/EDUCATION-SCHOOL LAW (UNIVERSITIES, FACULTY MEMBERS SUFFICIENTLY ALLEGED BREACH OF CONTRACT CAUSE OF ACTION AGAINST UNIVERSITY BASED UPON POLICIES DESCRIBED IN THE FACULTY HANDBOOK)

RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD.

The Third Department determined the rules promulgated by respondent NY Public High School Athletic Association concerning restrictions on the eligibility of transfer students to participate in school sports were valid:

… [I]t is settled that “courts should not interfere with the internal affairs, proceedings, rules and orders of a high school athletic association unless there is evidence of acts which are arbitrary, capricious or an abuse of discretion” … . Such “determination rests on whether the athletic association’s actions have a sound basis in reason and a foundation in fact” … .

We find that petitioners have failed to demonstrate that the actions taken by respondent warrant our interference. The purpose of the transfer rule, which was promulgated by respondent pursuant to its constitution and by authority delegated to it through the regulations of the Commissioner of Education … , is to deter athletic school-shopping and the recruitment of high school athletes by schools. By establishing an objective standard for eligibility that prohibits, with certain limited exceptions, immediate eligibility upon a transfer not accompanied by a parental change of residence, the transfer rule reasonably and rationally furthers these legitimate goals. Indeed, “[t]he absence of such a rule might reasonably invite strategically motivated transfers thinly disguised as transfers in the best (nonathletic) interest of the student” … . Matter of Albany Academies v New York State Pub. High Sch. Athletic Assn., 2016 NY Slip Op 08290, 3rd Dept 12-8-16

 

EDUCATION-SCHOOL LAW (RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD)/TRANSFER STUDENTS (RESTRICTIONS ON PARTICIPATION IN HIGH SCHOOL SPORTS BY TRANSFER STUDENTS UPHELD)

TERMINATION SHOCKS THE CONSCIENCE, TEACHER SUGGESTED STUDENTS’ ANSWERS ON A STANDARDIZED TEST MIGHT BE WRONG.

The First Department, over a dissent, determined a teacher’s assisting several students on a standardized test did not warrant termination:

While petitioner’s behavior in suggesting to several students that some of their answers might be wrong demonstrated a lapse in judgment, petitioner did not provide the students with the correct answers and there is no evidence that the incident was anything but a one-time mistake … . Prior to her termination in October 2014, petitioner, a tenured teacher who had worked for respondent since 2003, had an unblemished record and, as the OSI investigator testified, was considered to be a good teacher … . Moreover, the record is devoid of evidence that would suggest petitioner could not remedy her behavior. Matter of Bolt v New York City Dept. of Educ., 2016 NY Slip Op 08158, 1st Dept 12-6-16

EDUCATION-SCHOOL LAW (TERMINATION TOO SEVERE A SANCTION, TEACHER SUGGESTED STUDENTS’ ANSWERS ON A STANDARDIZED TEST MIGHT BE WRONG)/TEACHERS (TERMINATION TOO SEVERE A SANCTION, TEACHER SUGGESTED STUDENTS’ ANSWERS ON A STANDARDIZED TEST MIGHT BE WRONG)/EMPLOYMENT LAW (TEACHERS, TERMINATION TOO SEVERE A SANCTION, TEACHER SUGGESTED STUDENTS’ ANSWERS ON A STANDARDIZED TEST MIGHT BE WRONG)/STANDARDIZED TESTS (TERMINATION TOO SEVERE A SANCTION, TEACHER SUGGESTED STUDENTS’ ANSWERS ON A STANDARDIZED TEST MIGHT BE WRONG)

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CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED.

The Third Department, affirming Supreme Court, determined petitioner was not a “necessary employee” under the Civil Service Law. Therefore her position with the respondent school district was not obligated to transfer her when her position was abolished:

Mandamus to compel, sought by petitioner, is “an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought” … . Civil Service Law § 70 (2) provides, in relevant part: “Upon the transfer of a function . . . from one department or agency of the state to another department or agency of the state, . . . provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred” … . This language imposes a mandatory duty … . Thus, the ultimate issue is whether petitioner has “established a right to the relief sought which is ‘so clear as not to admit of reasonable doubt or controversy'” … . An employee is eligible for a transfer pursuant to Civil Service Law § 70 (2) only if he or she is a “necessary . . . employee[]” — i.e., if the agency or the department to which his or her duties are being transferred does not have sufficient staff at the time of the transfer to perform the duties being transferred … . Matter of Thornton v Saugerties Cent. Sch. Dist., 2016 NY Slip Op 08139, 3rd Dept 12-1-16

EMPLOYMENT LAW (CIVIL SERVICE LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)/EDUCATION LAW (EMPLOYMENT LAW, CIVIL SERVICE LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)/CIVIL SERVICE LAW (EDUCATION-SCHOOL LAW, CLAIMANT WAS NOT A NECESSARY EMPLOYEE WITHIN THE MEANING OF THE CIVIL SERVICE LAW, NO OBLIGATION TO TRANSFER HER AFTER HER POSITION WAS ABOLISHED)

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SCHOOL MAY HAVE HAD CONSTRUCTIVE KNOWLEDGE OF THE STUDENT’S CLAIM, BUT DID NOT HAVE ACTUAL KNOWLEDGE; LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department determined claimant high school wrestler should not have been granted leave to serve a late notice of claim against one of the two named schools, Akron. The claimant alleged he contracted herpes from an Akron wrestler during a tournament at Akron. Although Akron was deemed to have constructive knowledge of the claim, the court found it did not have timely actual knowledge of the essential facts of the claim:

We agree with Akron … that it did not have actual knowledge of the essential facts constituting the claim. Akron established that it was not aware until it received claimant’s application for leave to serve a late notice of claim that he was allegedly infected with herpes by wrestling Akron’s student at the tournament. …[C]laimant here established that, at most, Akron had constructive knowledge of the claim, which is insufficient … . It is well settled that actual knowledge of the claim is the factor that is accorded “great weight” in determining whether to grant leave to serve a late notice of claim … . Even if we agree with claimant that Akron suffered no prejudice from the delay, we nevertheless conclude that the court abused its discretion in granting claimant’s application for leave to serve a late notice of claim against Akron … . Matter of Ficek v Akron Cent. Sch. Dist., 2016 NY Slip Op 07545, 4th Dept 11-10-16

EDUCATION SCHOOL LAW (LATE NOTICE OF CLAIM, SCHOOL MAY HAVE HAD CONSTRUCTIVE KNOWLEDGE OF THE STUDENT’S CLAIM, BUT DID NOT HAVE ACTUAL KNOWLEDGE, LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (SCHOOL, LATE NOTICE OF CLAIM, SCHOOL MAY HAVE HAD CONSTRUCTIVE KNOWLEDGE OF THE STUDENT’S CLAIM, BUT DID NOT HAVE ACTUAL KNOWLEDGE, LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NOTICE OF CLAIM (SCHOOL, LATE NOTICE OF CLAIM, SCHOOL MAY HAVE HAD CONSTRUCTIVE KNOWLEDGE OF THE STUDENT’S CLAIM, BUT DID NOT HAVE ACTUAL KNOWLEDGE, LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)

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GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTION AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT.

The Second Department determined a grievance involving a teacher was arbitrable under the collective bargaining agreement (CBA). The grievance was filed by the teachers’ association against the school district regarding the district’s starting a plenary action against a teacher under a faithless servant theory:

Here, the respondent, Locust Valley Teachers’ Association (hereinafter the LVTA), filed a grievance against the petitioner, Locust Valley Central School District (hereinafter the School District), regarding the commencement by the School District of a plenary action against a teacher formerly employed by the School District. The former teacher was a member of the LVTA. The applicable collective bargaining agreement (hereinafter CBA) between the parties provided that either party had the right to submit a grievance to arbitration, where that grievance was not resolved by the School District. The CBA defined a “grievance” as “a claimed violation, misinterpretation or inequitable application [of a] provision of th[e] Agreement.” In the plenary action, the School District sought, under a “faithless servant” theory, the forfeiture of all compensation earned by the subject teacher pursuant to the CBA during a period of time in which the teacher allegedly engaged in certain criminal conduct. That conduct ultimately resulted in the teacher’s plea of guilty to several criminal charges.

The School District has not identified any statutory, constitutional, or public policy prohibition against arbitrating the grievance. Further, in light of the fact that the grievance concerns the right of the School District to bring a plenary action seeking the equitable forfeiture of compensation paid to the teacher under the CBA, there exists a reasonable relationship between the grievance and the CBA. Therefore, the Supreme Court did not err in finding the grievance to be arbitrable pursuant to the CBA … . Locust Val. Cent. Sch. Dist. v Benstock, 2016 NY Slip Op 07299, 2nd Dept 11-9-16

 

ARBITRATION (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/EDUCATION-SCHOOL LAW (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/FAITHLESS SERVANT THEORY (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)/TEACHERS (GRIEVANCE FILED AGAINST SCHOOL DISTRICT REGARDING THE DISTRICT’S STARTING A PLENARY ACTIONS AGAINST A TEACHER UNDER A FAITHLESS SERVANT THEORY WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT)

MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW.

The First Department, in a full-fledged opinion by Justice Kapnick, determined the exclusion of a retired teacher from meetings of New York City School Leadership Teams (SLT’s} violated the Open Meetings Law:

By regulation, respondent New York City Department of Education (DOE) has implemented this mandate through the establishment of SLTs in every school … . SLTs have between 10 and 17 members, made up of school parents, teachers, staff, and administrators, and may also include “representatives of Community Based Organizations” … . The school principal, president of the parent association, and chapter leader of the teachers’ union must be members. At least two student members are also required for each high school … . SLTs must meet at least once a month “at a time that is convenient for the parent representatives” … . Notice of this meeting must be provided in a manner “consistent with the open meetings law” … . * * *

As the IAS court properly found … SLTs qualify as a public body performing governmental functions, and, therefore, are subject to the Open Meetings Law. Matter of Thomas v New York City Dept. of Educ., 2016 NY Slip Op 06989, 1st Dept 10-25-16

 

EDUCATION-SCHOOL LAW (MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW)/SCHOOL LEADERSHIP TEAMS (MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW)/OPEN MEETINGS LAW (MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW)

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APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES.

The Fourth Department determined claimant’s application for leave to file a late notice of claim should not have been granted. Apparently plaintiff’s daughter was injured by a student from defendant school district who was subject to an order of protection requiring the student to stay away from the school attended by claimant’s daughter. Although claimant demonstrated defendant had timely knowledge of the order of protection but not demonstrate the defendant had timely knowledge of any injuries resulting from the violation of the order:

 

Supreme Court abused its discretion in granting claimant’s application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5) approximately one year after the incident in which her daughter was injured occurred. “It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining a defense on the merits” … . “While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner” … . It is well established that “[k]nowledge of the injuries or damages claimed . .. , rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law § 50-e (5)” … , and the claimant has the burden of demonstrating that the respondent had actual timely knowledge … . Matter of Turlington v Brockport Cent. Sch. Dist., 2016 NY Slip Op 06572, 4th Dept 10-7-16

EDUCATION-SCHOOL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)/MUNICIPAL LAW (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)/NOTICE OF CLAIM (APPLICATION TO FILE LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED. NO SHOWING OF DEFENDANT’S TIMELY AWARENESS OF THE INJURIES)

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