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The Absence of Proof Defendants Disclosed Slanderous Statements Included in Letters to Plaintiff Precluded a “Name-Clearing” Hearing/The Jury Should Not Have Been Allowed to Consider “Ostracism and Rejection” Damages Absent Proof Defendants Were Responsible for Republication of the Slanderous Remarks by Third Persons

In a lawsuit stemming from allegedly slanderous remarks made by defendants in connection with plaintiff’s termination from employment by the defendant school district, the Third Department determined plaintiff’s petition for a name-clearing hearing should have been dismissed, because there was no evidence defendants disclosed the relevant letters to anyone, and the jury should not have been allowed to consider rumor-related “ostracism and rejection” damages, because there was no evidence defendants were responsible for the alleged repetition of the slander by third persons. A new trial on damages was ordered:

Proof of “ostracism and rejection” to establish damages for defamation is only admissible if the proof is “‘the direct and well-connected result'” of a defamatory statement at issue … . Further, even when a defendant’s slanderous statement is connected by proof to that statement’s republication, “‘one who utters a slander . . . is not responsible for its voluntary and unjustifiable repetition, without his [or her] authority or request, by others over whom he [or she] has no control and who thereby make themselves liable to the person injured'” … . This is because “each person who repeats the defamatory statement is responsible for the resulting damages” … .

Plaintiff’s proof regarding rumors and ostracism fail these tests. Plaintiff and her witnesses offered no proof that directly connected [defendants’] slanderous statements to the ostracism that plaintiff allegedly suffered … . Further, even assuming that the content of the rumors allegedly spread by community members allowed for a reasonable inference that said community members were aware of [defendants’] slanderous statements, proof of republication was nonetheless improper given the absence of evidence that defendants had any knowledge of or played any role in such republication … . Compounding the effect of the error, Supreme Court did not instruct the jury that plaintiff had the burden of proving that the ostracism harms that plaintiff allegedly suffered were actually connected to [defendants’] statements, despite defendants’ request that it do so. Wilcox v Newark Val. Cent. School Dist., 2015 NY Slip Op 04890, 3rd Dept 6-11-15

 

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The Three-Year Statute of Limitations in the Education Law Need Not Be Raised as a Defense—Here the Charges Against a Teacher Were Time-Barred—The Department of Education (DOE) Did Not Demonstrate the Charges Were Criminal (to Which the Three-Year Statute Would Not Have Applied)

The First Department determined the third set of charges brought against petitioner-teacher, alleging the teacher improperly obtained his daughter’s admission to NYC Department of Education (DOE) schools for which she was not zoned, was time-barred.  Although the three-year statute of limitations in the Education Law would not apply had the allegations constituted a crime, the hearing officer did not find the teacher’s conduct to be criminal. The court determined that the first two set of charges against the teacher did not justify termination (the penalty imposed) and remitted the matter for a lesser punishment. The court noted that the statute of limitations in the Education Law need not be raised as a defense:

Supreme Court did not exceed its authority in finding that the third set of charges against petitioner was time-barred. Education Law § 3020-a(1) requires that disciplinary charges against a teacher be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed. Petitioner was not required to raise the statutory time limitation set forth in Education Law § 3020-a(1) as a defense in the disciplinary proceeding. Where, as here, “a statute creates a right unknown at common law, and also establishes a time period within which the right may be asserted, the time limit is . . . a condition attached to the right as distinguished from a [s]tatute of [l]imitations which must be asserted by way of defense” … . Accordingly, DOE had the burden of establishing that it met the time requirement set forth in Education Law § 3020-a(1) or that the crime exception to the time requirement applied … . DOE failed to meet its burden. Matter of Suker v New York City Board/ Dept. of Educ., 2015 NY Slip Op 04940, 1st Dept 6-11-15

 

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County Was Not Responsible for the Day to Day Operation of Community College and Did Not Own the Dormitory Where Plaintiff’s Decedent Suffered Cardiac Arrest and Died—County Owed No Duty of Care to Plaintiff’s Decedent

Plaintiff’s decedent died of cardiac arrest in a Sullivan County Community College (SCCC) dormitory.  Plaintiff sued the county, alleging the dormitory should have been equipped with a defibrillator and/or should have had an emergency medical response plan in effect.  The Court of Appeals determined the complaint against the county was properly dismissed.  Although the county was the “sponsor” of the community college, it did not own the dormitory and did not manage the day-to-day operation of the community college, which was handled by the board of trustees (Education Law 6306):

While the County exercises significant influence and control over SCCC’s finances, only the College’s board of trustees is authorized to manage SCCC’s facilities; therefore, it alone is charged with the duty of care … . And here, the County additionally established that it did not even own the dormitory where decedent’s accident occurred … . Branch v County of Sullivan, 2015 NY Slip Op 04756, CtApp 6-9-15

 

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Termination of Teacher’s Probationary Employment and Teaching Licenses Was “Abitrary and Capricious” Because the Ruling Was Based In Part Upon an Issue, Absenteeism, of Which the Teacher Had Not Been Given Notice

The First Department found the school district’s termination of petitioner’s probationary employment as a teacher and termination of her teaching licenses was “arbitrary and capricious” because it was based in part on an issue, absenteeism, of which the teacher had not been given notice. Matter of Brower v New York City Dept. of Educ., 2015 NY Slip Op 04764, 1st Dept 6-9-15

 

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Circumstances When Hospital May Be Liable for Actions of Non-Employee Doctor Explained

The Second Department determined the defendant hospital was not liable for the alleged negligence of a doctor (Berlingieri) who was not a hospital employee.  In the course of the decision, the court explained when a hospital may be liable for the actions of a non-employee doctor:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . An exception to this general rule exists where a plaintiff seeks to hold a hospital vicariously liable for the alleged malpractice of an attending physician who is not its employee where “a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … . Thus, in order to establish its entitlement to judgment as a matter of law defeating a claim of vicarious liability, a hospital must demonstrate that the physician alleged to have committed the malpractice “was an independent contractor and not a hospital employee” …, and that “the exception to the general rule did not apply” … . In this case, the hospital met that burden by demonstrating that Berlingieri was not a hospital employee, and that [plaintiff] sought treatment from a particular physician, Joanow, went to the hospital at Joanow’s direction, and was in fact treated by Joanow and a medical team that he assembled shortly after her admission … .

A plaintiff may rebut a hospital’s prima facie showing by raising a triable issue of fact as to whether the hospital can be held vicariously liable for the malpractice of an attending physician who is not under its employ pursuant to a theory of “apparent or ostensible agency” … . To support a viable claim based upon ostensible agency, a plaintiff must set forth facts sufficient to support the conclusion that the hospital engaged in some misleading conduct upon which the plaintiff reasonably relied when the plaintiff decided to accept medical services from the hospital … . There is no evidence that [plaintiff] was misled by the hospital into believing that Berlingieri was a member of its staff, and the record does not reflect any other allegation by [plaintiff] that she believed there to be an employment relationship between Berlingieri and the hospital, and that she thereupon accepted his services in reliance upon such a relationship … . Muslim v Horizon Med Group PC, 2014 NY Slip Op 03991, 2nd Dept 6-4-14

 

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Agency’s Failure to Follows Its Own Regulations Rendered Determination Arbitrary and Capricious

The Third Department determined that the NYS Education Department did not follow its own regulations in calculating the amounts due petitioner for special education services for preschool children with disabilities.  Failure to follow the regulations rendered the calculation “arbitrary and capricious:”

Petitioner contends that respondent failed to follow its own regulations and otherwise acted arbitrarily primarily by relying upon unaudited information from the municipalities, disregarding petitioner’s audited CFR [Consolidated Fiscal Report] and financial data, and refusing to consider petitioner’s explanation for the discrepancies between its audited information and the municipalities’ data. Our review of an administrative agency’s determination is limited to “ascertain[ing] whether there is a rational basis for the action in question or whether it is arbitrary and capricious” …, and we have previously recognized that respondent has “broad discretion in setting the reconciliation rate” … . However, an agency determination arrived at in a manner inconsistent with its own regulations is not supported by a rational basis … . Although “an agency’s interpretation of its own regulation is entitled to deference” … , “courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language” … . * * *

The intent of the regulations, consistent with common sense and good government, is to gather and use correct data; hence, the repeated directives that service providers submit information — CFRs and financial statements — that has been independently audited and certified by an appropriate professional (see 8 NYCRR 200.9 [e] [1] [i] [a] [1]; [ii] [a]). The regulations provide no authority for relying solely on unaudited information from municipalities. This does not lead to the conclusion that such information from a municipality has no role. It can be considered to require clarification or explanation from a service provider and, if adequately verified, even incorporated in the calculus. However, at a minimum, a service provider that has adhered to the regulations and provided a CFR and financial statement, both audited, should be afforded a reasonable opportunity to explain and/or reconcile its information with the unaudited information of a municipality. Consistent with its own regulations, respondent cannot simply reject audited information by reason of the existence of less reliable information without some articulable rational basis. Matter of Mid Is. Therapy Assoc., LLC v New York State Educ. Dept., 2015 NY Slip Op 04707, 3rd Dept 6-4-15

 

Individuals with Disabilities Education Act (IDEA) Does Not Confer a Private Right of Action Upon Local School Districts to Challenge IDEA-Related Rulings by the State Education Department (SED)

The Third Department, in a full-fledged opinion by Justice Peters, determined the Individuals with Disabilities Education Act (IDEA) did not give local educational agencies (LEA’s) (here a local school district) a private right of action to challenge a ruling by the State Education Department (SED) .  Here the SED found that the LEA’s dispute resolution practices violated state laws and regulations promulgated in accordance with the IDEA and ordered corrective measures. The LEA then challenged the SED’s rulings in an Article 78 action. The Third Department noted that the IDEA does not expressly confer a right of private action on LEA’s in this context and therefore whether such a right exists depends upon congressional intent. Because the IDEA confers a private right of action upon a specialized class, i.e., “any party aggrieved” by IDEA-related administrative proceedings which involve due process afforded a particular child, it follows that Congress did not intend to confer such a right upon LEA’s:

… Congress created procedural safeguards to ensure that students with disabilities receive a free appropriate public education and, in doing so, expressly granted a private right of action to “any party aggrieved” by an SEA’s administrative findings or decision resolving a due process complaint challenging “any matter relating to the identification, evaluation or educational placement of [a particular] child, or the provision of a free appropriate public education to such child” (20 USC § 1415 [b] [6] [A]; [f], [g], [i] [2] [A]; see also Education Law § 4404; 8 NYCRR 200.5 [i], [j], [k], [l])[FN2]. Since the IDEA includes an express right of action in favor of a specific class of persons, it is logical to assume that, had Congress intended to bestow upon LEAs a right of action to challenge an SEA’s regulatory and enforcement actions, it would have expressly done so … .

Further evidence of a lack of Congressional intent can be found in the hierarchal regulatory and enforcement structure created by the IDEA, which requires the federal Secretary of Education to monitor the states’ implementation of IDEA mandates and imposes upon the states corresponding regulatory and enforcement responsibilities over LEAs (see 20 USC § 1412 [a] [11]; § 1416 [a] [3]; 34 CFR 300.600, 300.603). The delegation of regulatory and enforcement power to the Secretary of Education and the states, but not to LEAs, suggests that Congress specifically intended to deny LEAs a right of action to challenge an SEA’s compliance with the IDEA … . Moreover, it would be inconsistent for Congress to implicitly create this right of action, as doing so would divest the Secretary of Education and the states of their regulatory and enforcement authority and would transfer that power to the Judiciary … . Matter of East Ramapo Cent. Sch. Dist. v King, 2015 NY Slip Op 04703, 3rd Dept 6-4-15

 

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A Police Report of a Vehicle Accident Involving Respondent’s Employee Was Not Sufficient to Alert Respondent to the Facts Underlying Petitioner’s Claim—Petition to File Late Notice of Claim Properly Denied

The Second Department determined the petition to file a late notice of claim was properly denied because there was no showing the respondent school district was aware of the facts underlying the claim, there was no showing the school district was not prejudiced by the two-month delay, and there was no showing of an adequate excuse for the delay.  The petitioner argued that a police report describing a vehicle accident provided notice of the facts to the school district. But the report indicated only that respondent’s employee was involved in the accident, which was not sufficient to establish respondent’s knowledge of the facts of plaintiff’s claim:

For a police accident report to serve as sufficient notice to the public corporation, the public corporation must have been “able to readily infer from that report that a potentially actionable wrong had been committed by the [employee of] the public corporation” … . A report which describes the circumstances of the accident without making a connection between the petitioner’s injuries and negligent conduct on the part of the public corporation will not be sufficient to constitute actual notice of the essential facts constituting the claim … . The petitioners’ contention that the respondent had actual knowledge of their claim solely on the basis of the allegation that its employee was directly involved in the accident, without more, such as a report or record demonstrating that the respondent acquired actual knowledge of the essential facts constituting the claim, is without merit … . Matter of Thill v North Shore Cent. School Dist., 2015 NY Slip Op 04332, 2nd Dept 5-20-15

 

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School Employee’s After-Hours Inappropriate Behavior Involving a Student Was Not Proximately Caused by Negligent Supervision/Retention of the Employee or Negligent Supervision of the Student on the Part of the School District

The Second Department reversed Supreme Court and granted the defendant school district’s motion to dismiss the complaint.  The school’s marching band director, Perna, engaged in inappropriate communications with plaintiff’s child, KS, a student who was in the marching band.  The communications by computer and cell phone took place off school grounds after hours.  The Second Department determined the band director’s after-hours behavior was not proximately caused by negligent retention or supervision of Perna or negligent supervision of KS:

Because the inappropriate conduct by Perna toward KS, the plaintiff’s child, occurred after school hours and off school grounds by means of their personal computers and cellular phones, the causes of action alleging negligent retention and supervision cannot provide a basis for liability against the appellants. Although KS first met Perna through the marching band, KS’s injuries were not proximately caused by any negligent retention or supervision by the appellants … . In opposition, the plaintiff failed to raise a triable issue of fact.

Additionally, the Supreme Court should have granted that branch of the appellants’ motion which was for summary judgment dismissing so much of the complaint as alleged negligent supervision of KS, since the appellants established, prima facie, that the wrongful acts occurred outside of the school grounds … and, in opposition, the plaintiff failed to raise a triable issue of fact. MS, etc. v Arlington Cent. School Dist., 2015 NY Slip Op 04290, 2nd Dept 5-20-15

 

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Supreme Court Used the Wrong Standards When It Denied Petitioner’s Request for Documents Relating to Complaints Alleging the Improper Use of School Property by an Employee of the Department of Education (the Employee Gave a Speech on School Property Which May Have Violated the Chancellor’s Regulations re: the Use of School Property for Political Purposes)—Correct Analytical Criteria Explained and Applied

The First Department determined Supreme Court used the wrong criteria when it denied petitioner’s request for documents relating to the investigation of complaints about the use of school buildings for political purposes.  The complaints concerned a speech given by an employee of the Department of Education (DOE) which criticized the positions on education policy taken by unnamed mayoral candidates.  The speech was put up on the DOE website. Petitioner alleged the speech violated specified Chancellor’s Regulations re: the conduct of school employees with respect political campaigns and elections.  Supreme Court erroneously held that petitioner must show that the denial of the request for documents was “arbitrary and capricious,” “an abuse of discretion,” “irrational,” or “unlawful.”  The proper analysis is whether the determination “was affected by an error of law” and  places the burden on the respondent to show the request falls within one of the statutory exceptions to disclosure.  The First Department reversed Supreme Court, applied the correct analytical criteria and found that any relevant privacy interests did not outweigh the public interest in disclosure:

The appropriate standard of review is whether the determination “was affected by an error of law” (CPLR 7803[3]…). Moreover, the burden is on respondents to establish “that the material requested falls squarely within the ambit of one of the[] statutory exemptions” from disclosure … . Under the circumstances of this case, the application of an improper legal standard is reversible error since it resulted in substantial prejudice to petitioner … .

Respondents failed to establish that disclosure of the materials at issue would “constitute an unwarranted invasion of personal privacy under the provisions of [§ 89(2)]” (Public Officers Law § 87[2][b]). They do not claim that any personal privacy category enumerated in § 89(2) is applicable. Therefore, we must determine whether any invasion of personal privacy would be unwarranted “by balancing the privacy interests at stake against the public interest in disclosure of the information” … . The speech at issue excoriated unspecified candidates in the 2013 mayoral election who had taken certain positions on education policy. Notwithstanding that the speech did not name any individual candidate or political party, the complaints to [the school district]  raised serious questions about the propriety of the speech and its publication on DOE’s website. We find that there is a “significant public interest” in the requested materials, which may shed light on whether this matter was adequately investigated … . Respondents failed to establish that the claimed privacy interests outweigh this public interest … . They assert that the materials contain personally identifying information such as home addresses, dates of birth, and Social Security numbers. However, that information can be redacted and does not provide a basis for withholding entire documents … . . Matter of Thomas v Condon, 2015 NY Slip Op 04237, 1st Dept 5-19-15

 

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