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THE SCHOOL DISTRICT DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER IT PROPERLY EVALUATED THE TEACHER’S BACKGROUND BEFORE HIRING HER AND WHETHER IT HAD CONSTRUCTIVE KNOWLEDGE OF THE TEACHER’S ALLEGED ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the defendant school district did not demonstrate it took adequate measures to the evaluate the teacher’s background and did not demonstrate it did not have constructive notice of the teacher’s alleged sexual abuse of plaintiff student:

… [T]he defendants failed to establish, prima facie, that the School District was not negligent with respect to the hiring of the teacher. The defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the School District took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired … .

… [T]he defendants failed to establish, prima facie, that the School District lacked constructive notice of the teacher’s abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred between 50 and 100 times over the course of two school years, inter alia, in a classroom and the school parking lot during school hours, the defendants did not eliminate triable issues of fact as to whether the School District should have known of the abuse … . The defendants similarly failed to demonstrate, prima facie, that the School District’s supervision of both the teacher and the plaintiff was not negligent given that, among other things, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent … . Brauner v Locust Val. Cent. Sch. Dist., 2025 NY Slip Op 00418, Second Dept 1-29-25

Practice Point: Here in this Child Victims Act case the school district did not demonstrate it properly evaluated the teacher’s background before hiring her and did not demonstrate it did not have constructive notice of the teachers’ alleged abuse of plaintiff student which allegedly occurred up to 100 times in a classroom and the school parking lot.

 

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THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide:

… [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing the causes of action alleging negligence and negligent supervision and retention insofar as asserted against … . In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and that of his third grade teacher, who served as the direct supervisor of the teacher’s aide. The plaintiff testified that the teacher’s aide singled him out for attention in the classroom and hugged him in the hallways … . While such conduct, without more, might not have been enough to warrant denial of the defendants’ motion, the plaintiff also testified that, upon dismissal from school, the teacher’s aide frequently walked him to her car in the presence of other staff members and then drove him to her home, where the alleged sexual abuse primarily occurred. The third grade teacher also testified that it was “[in]appropriate” for teachers and other school district employees to drive students in their personal vehicles or take students to their homes, conduct which the teacher also believed violated school policies … .

Therefore, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the school district “had notice of the potential for harm to the . . . plaintiff such that its alleged negligence in supervising and retaining [the teacher’s aide] placed [her] in a position to cause foreseeable harm” … . Kastel v Patchogue-Medford Union Free Sch. Dist., 2025 NY Slip Op 00210, Second Dept 1-15-25

Practice Point: The criteria for a school district’s liability for negligent hiring and retention and negligent supervision in a Child Victims Act case concisely laid out.

 

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DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR SEXUAL ABUSE OR THE REPEATED, LONG-TERM ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent hiring and negligent supervision case, over a two-justice dissent, determined the defendant school district did not demonstrate it did not have constructive notice of the sexual abuse of plaintiff by a teacher (Faralan) which occurred repeatedly over an extended period during school hours:

… [T]he district failed to meet its prima facie burden of demonstrating that it was not negligent with respect to the hiring, retention, and supervision of Faralan or that it was not negligent with respect to its supervision of the plaintiff. The district submitted no evidence regarding its hiring, retention, or supervision of Faralan, who was a probationary employee during the time when he sexually abused the plaintiff on school grounds, including times when he was tutoring her one-on-one … . Furthermore, the district failed to establish, prima facie, that it lacked constructive notice of Faralan’s abusive propensities and conduct, particularly given the frequency of the abuse, which occurred several times per week over an extended period of time in the same classroom and hallway during tutoring sessions and at times when others were present … . Stanton v Longwood Cent. Sch. Dist., 2024 NY Slip Op 06600, Second Dept 12-24-24

Practice Point: To warrant summary judgment in a negligent hiring and supervision suit alleging abuse of a student by a teacher, the school district must affirmatively demonstrate it did not have constructive notice of the teacher’s propensity for abuse and/or the abuse itself. Plaintiff’s allegations of repeated abuse during school hours over an extended period of time raised a question of fact re: the district’s constructive notice.

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SUBSTITUTE TEACHER NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS FOR THE PERIOD BETWEEN TWO SUCCESSIVE ACADEMIC YEARS DURING THE PANDEMIC BECAUSE HE RECEIVED ASSURANCE OF CONTINUED EMPLOYMENT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined claimant, a substitute teacher, was not entitled to unemployment insurance benefits between two successive academic years (during the COVID pandemic) because he had received assurance of continued employment. The dissenters disagreed with the majority’s conclusion claimant had been assured of continued employment:

“[P]ursuant to Labor Law § 590 (10), a professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment” … . “A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period” … . “Notably, the question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board’s findings in that regard are supported by substantial evidence, they will not be disturbed” … . Matter of Jensen (Commissioner of Labor), 2024 NY Slip Op 06253, Third Dept 12-12-24

Practice Point: A substitute teacher is not entitled to unemployment insurance benefits during the period between two successive academic years if he or she has received assurance of continued employment.

 

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THERE IS NO NOTICE OF CLAIM REQUIREMENT FOR A TORT ACTION AGAINST A CHARTER SCHOOL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a plaintiff is not required to serve a notice of claim for a tort action against a charter school. Here the infant plaintiff was injured on the playground of a charter school (Evergreen) and Supreme Court dismissed the case because no notice of claim had been served on the school:

… [A]s explained in this Court’s recent opinion and order in A.P. v John W. Lavelle Preparatory Charter Sch. (228 AD3d 138), Education Law § 3813(2) and General Municipal Law § 50-e do not require service of a notice of claim prior to commencement of a tort action against a charter school … . Accordingly, the defendants were not entitled to summary judgment dismissing the complaint insofar as asserted against Evergreen based upon the plaintiffs’ failure to serve Evergreen with a notice of claim … . L.R. v Evergreen Charter Sch., 2024 NY Slip Op 05998, Second Dept 11-27-24

Practice Point: A plaintiff bringing a tort action against a charter school is not required to serve a notice of claim.

 

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THE HISTORY OF THE INTERACTION BETWEEN INFANT PLAINTIFF AND ANOTHER STUDENT RAISED A QUESTION OF FACT ABOUT WHETHER THE ATTACK ON INFANT PLAINTIFF WAS FORESEEABLE FROM THE SCHOOL’S PERSPECTIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the negligent supervision action against defendant school should not have been dismissed. Infant plaintiff (E.E.) had been attacked and seriously injured by another student (J.H.). Supreme Court found the attack was not foreseeable. The Third Department found the evidence of foreseeability sufficient to raise a question of fact:

The record contains evidence of the following. J.H. had a school disciplinary history of 18 incidents between 2015 and 2018, which resulted in numerous detentions and suspensions. Of these 18 incidents, it appears that at least five involved acts of violence on J.H.’s part. One of the suspensions was for lighting a fellow student’s hair on fire, while another suspension was for her previous attack on E.E. That particular incident involved J.H. borrowing rings from other students in order to maximize the injuries that she could inflict upon E.E. J.H. was also suspended for obtaining unclothed photos of E.E. and posting them online under the guise that it was E.E. who was posting them. By the spring of 2017, school officials were aware that J.H. was suffering from anxiety and depression, had been the subject of a PINS petition, was a runaway risk, exhibited violent behavior, had “no judgment” and was “very unpredictable.” At some point around the middle of the 2017-2018 school year, J.H. screamed at E.E. in a school hallway, “what are you looking at?”, and E.E. reported this to a teacher. Approximately two weeks before the incident in question, J.H.’s mother called a school guidance counselor and warned that J.H. was planning to do something to get herself expelled from school. The district superintendent stated that if she had been made aware of this call, she would have advised the high school principal about it and ensured that there was a safety plan in place.

While we are mindful that there were no specific incidents between J.H. and E.E. for a number of months prior to the subject assault, the evidence of J.H.’s extensive disciplinary history, including acts of violence together with the prior incidents aimed at E.E. herself, as well as the recent warning call from J.H.’s mother, was sufficient to raise triable issues of fact with respect to whether J.H.’s attack on E.E. was foreseeable and whether it was a consequence of a lack of adequate supervision on defendant’s part … . To the extent that defendant argues a lack of foreseeability by pointing to J.H.’s deposition testimony wherein she indicated that she did not plan the attack in advance, we are unpersuaded. “The issue is not the speed of the punch, but the circumstances leading up to and surrounding that conduct” … . In light of the foregoing, it was error to grant defendant’s motion for summary judgment. T.E. v South Glens Falls Cent. Sch. Dist., 2024 NY Slip Op 05934, Third Dept 11-27-24

Practice Point: Consult this decision for insight into the proof necessary to raise a question of fact about the foreseeability of an attack on a student by another student.

 

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DEFENDANT SCHOOL DISTRICT DID NOT MAKE OUT A PRIMA FACIE CASE DEMONSTRATING IT LACKED CONSTRUCTIVE NOTICE OF THE TEACHER’S ALLEGED PROPENSITY TO SEXUALLY ABUSE CHILDREN; THEREFORE ITS MOTION FOR SUMMARY JUDGMENT IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district was not entitled to summary judgment in this case alleging sexual abuse by a teacher in 2013 – 2014. A question of fact had been raised about whether the school district knew or should have known of the teacher’s alleged propensity to abuse children:

“Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business, the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee” … . “‘[A] necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … .

“A school ‘has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision'” … . “‘The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information'” … . “‘The adequacy of a school’s supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff’s injury'” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . “‘Actual or constructive notice to the school of prior similar conduct generally is required'” … .

Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . In particular, the defendants submitted a transcript of the plaintiff’s deposition testimony, in which the plaintiff testified that the principal and other teachers were aware of the teacher’s inappropriate behavior, which occurred multiple times throughout the school year in a classroom on the defendants’ premises during school hours … . J.J. v Mineola Sch. Dist., 2024 NY Slip Op 05580, Second Dept 11-13-24

Practice Point: Here the plaintiff’s testimony that the principal and other teachers were aware of the teacher’s inappropriate behavior which occurred multiple times in a classroom was enough to prevent the school from making out a prima facie case that it did not have constructive notice of the teacher’s alleged propensity.

 

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TENURED TEACHERS WERE NOT ENTITLED TO A HEARING BEFORE BEING PLACED ON LEAVE BECAUSE THEY DID NOT SUBMIT PROOF OF VACCINATION AGAINST COVID; HEARINGS ARE REQUIRED IN DISCIPLINARY PROCEEDINGS, BUT NOT WHERE, AS HERE, TEACHERS FAIL TO COMPLY WITH A CONDITION OF EMPLOYMENT (CT APP).

The Court of Appeals, affirming the dismissals of the tenured New York City teachers’ petitions, determined the teachers were properly placed on leave without pay for failing to submit proof of vaccination against COVID. The petitioners’ argument that they were entitled to a hearing pursuant to the Education Law prior to being placed on leave was rejected because the teachers were not being disciplined. Rather, they failed to comply with a condition of employment:

Petitioners were not entitled to the hearing procedures outlined in Education Law §§ 3020 and 3020-a before being placed on leave without pay. These statutory provisions establish a detailed and comprehensive system for conducting disciplinary hearings for tenured teachers. While tenured teachers have a right to these statutory hearings when faced with disciplinary proceedings, these provisions are not applicable to petitioners, who were placed on leave without pay for failure to comply with the vaccine mandate, a condition of employment.

This Court has long distinguished between disciplinary proceedings and employment conditions for employees entitled to statutory civil service protections, and has held that statutory hearings are not warranted when employment eligibility conditions are enforced … . Matter of O’Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2024 NY Slip Op 05130, CtApp 10-17-24

Practice Point: The Education Law requires hearings before tenured teachers can be disciplined. But no hearing is required before placing teachers on leave for failure to comply with a condition of employment (here the submission of proof of vaccination against COVID).

 

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IN THIS CHILD VICTIMS ACT CASE, THE SCHOOL DEFENDANTS DID NOT ELIMINATE QUESTIONS OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ALLEGED SEXUAL ABUSE OF PLAINTFF STUDENT BY TWO TEACHERS; THE FREQUENCY OF THE ALLEGED ABUSE RAISED QUESTIONS ABOUT NOTICE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the school defendants did not eliminate questions of fact about constructive notice of the sexual abuse of plaintiff student by two teachers. The relevant law is described in detail and should be consulted as a complete overview of the relevant issues:

… [T]o the extent the complaint is premised on the conduct of the music teacher, the defendants failed to establish, prima facie, that they lacked constructive notice of the music teacher’s alleged abusive propensities and conduct … . The defendants’ own submissions established that the plaintiff testified that the alleged abuse by the music teacher occurred once or twice a week during the school year … . In light of the frequency of the alleged abuse, the defendants did not eliminate a triable issue of fact as to whether they should have known of the alleged abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the music teacher or the plaintiff was not negligent … .

Although the single incidence of alleged sexual abuse by the English teacher occurred off of school property and outside of school hours, the defendants’ own submissions demonstrate that the music teacher introduced the plaintiff to the English teacher, describing the plaintiff as his “friend” and a “good girl,” and that, in the presence of the music teacher, the English teacher made arrangements with the plaintiff during school hours and on school grounds to meet after school when the alleged abuse by the English teacher took place … . C. M. v West Babylon Union Free Sch. Dist., 2024 NY Slip Op 04954, Second Dept 10-9-24

Practice Point: Here the frequency of the alleged sexual abuse of plaintiff student by a teacher raised a question of fact about constructive notice by the school defendants.

 

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INFANT PLAINTIFFS ALLEGED MULTIPLE INSTANCES OF SEXUAL MISCONDUCT BY A MALE STUDENT ON THE SCHOOL BUS FROM KINDERGARTEN THROUGH SECOND GRADE; THE FOURTH DEPARTMENT DETERMINED THE DEFENDANT SCHOOL’S EVIDENCE DID NOT CONCLUSIVELY ESTABLISH A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the negligent supervision causes of action against the defendant school, school district, board of education and department of transportation should not have been dismissed. Infant plaintiffs alleged they were subjected to sexual misconduct on a school bus by a male student from kindergarten through second grade. The Fourth Department found that the evidence submitted by the defendants did not demonstrate a lack of notice:

Defendants, as parties moving for summary judgment, had the initial burden of establishing as a matter of law that they lacked actual or constructive notice of “the dangerous conduct which caused injury” … . Here, we conclude that defendants did not meet that burden. In support of their motion, defendants submitted, inter alia, the deposition testimony of the principal of the school at the time of the alleged misconduct. The principal, when asked at his deposition whether he had been aware of any prior “incidents of student sexual assaults” on the bus and whether he had ever had to deal with any student at the school who had been characterized as “sexually violent,” answered both questions in the negative … . That testimony was insufficient to meet defendants’ burden because it failed to address whether the principal knew of incidents within the broader category of sexual misconduct alleged by plaintiffs in their complaints. Plaintiffs alleged that the perpetrator engaged in a wide range of sexual misconduct—some of which was not equivalent to “sexual assault [ ]” and was not “sexually violent.” In short, the principal’s testimony failed to establish that defendants had no actual or constructive notice of any sexual misconduct of the types alleged by plaintiffs … .

Additionally, to the extent that defendants submitted deposition testimony of various other witnesses—including the infant plaintiffs and the bus driver—we conclude that it was insufficient to satisfy defendants’ initial burden with respect to actual or constructive notice. In particular, although the infant plaintiffs and the bus driver testified that they did not report instances of the alleged misconduct to defendants, they were not in a position to know whether there had been prior incidents of sexual misconduct involving the perpetrator and, if so, whether defendants had actual or constructive notice of any of those incidents prior to the sexual misconduct alleged in the complaint … . Their testimony could not establish whether defendants obtained notice by other means … . Porschia C. v Sodus Cent. Sch. Dist., 2024 NY Slip Op 04885, Fourth Dept 10-4-24

Practice Point: Here, on defendant school’s motion for summary judgment in this negligent supervision case, the Fourth Department looked carefully at the school’s evidence of a lack of notice of a student’s sexual misconduct and found the evidence did not address all the possible scenarios which could demonstrate liability and therefore did not support summary judgment.

 

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