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Denial of Petitioner’s Application for Employment as a School-Bus Driver, Based Upon His Criminal Record, Was Not Arbitrary and Capricious Despite Petitioner’s Good Employment Record and His Obtaining a Certificate of Relief from Civil Disabilities

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined petitioner was properly precluded by the Department of Education (DOE) from employment as a school-bus driver, based upon his criminal record.  The offenses were committed when petitioner was in his 40’s and petitioner had had no further contact with the criminal justice system for 15 years.  Petitioner had obtained a certificate of relief from civil disabilities and had a good employment record, which included transporting children.  The Court of Appeals held that the DOE’s action was not arbitrary and capricious because the DOE considered all of the statutory factors in Corrections Law 752.  The Court of Appeals noted that obtaining a certificate of relief from civil disabilities establishes a presumption of rehabilitation, but the certificate does not establish a prima facie right to a license or employment:

The Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the § 752 exceptions applies:

“(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.” (Correction Law § 753 [1].)

[The Court of Appeals has held] that “[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law’s mandatory directive” … . Matter of Dempsey v New York City Dept. of Educ., 2015 NY Slip Op 04028, CtApp 5-12-15

 

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Names of Retired Teachers Not Protected from Disclosure by Public Officers Law 89

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined Public Officers Law 89 (7) did not exempt from disclosure the names of retirees who receive benefits from public employees' retirement systems.  The question boiled down to statutory interpretation:

The answer to the question before us — are retirees' names exempt from disclosure? — is plain from the face of the statute. It exempts “the home address . . . of a retiree,” but not the retiree's name. By contrast, it exempts both the name and home address of “a beneficiary of a public employees' retirement system.” A “beneficiary” of a retirement system, as the term is commonly used, is a family member of an employee or retiree who is entitled to benefits after the employee's or retiree's death; it is so used on the website of one of the retirement systems in this case (NYSTRS,”Glossary of Benefit Terms,” at http://www.nystrs.org/main/glossary/html [last visited April 21, 2014]). In some contexts, “beneficiary” might be read more broadly to include a retiree, for retirees do benefit from retirement systems. But “beneficiary” was obviously not used in that sense in this statute, because the statute provides a separate and more limited exemption for a “retiree.” Matter of Empire Ctr for NY State Policy v New York State Teachers' Retirement Sys, 2014 NY Slip Op 03193, CtApp 5-6-14

 

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Although Picketing by Teachers Was Protected Speech, the Manner in which the Picketing Was Carried Out Endangered the Safety of Students—Therefore the Teachers Were Properly Disciplined

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with concurring and dissenting opinions, reversed the Appellate Division and found that teachers had been properly disciplined for picketing in their cars in a manner which made it more difficult for parents to drop off their children at the school.  The court applied the so-called Pickering test (Pickering v Board of Educ…391 US 563 [1968]) which addresses the free speech rights of public employees (which are somewhat curtailed).  Under the court's Pickering analysis, the picketing was protected speech, but the manner in which the picketing was done endangered the students. The teachers, therefore, could be disciplined for the manner in which they exercised their right to free speech:

Under Pickering, the determination whether a public employer has properly disciplined a public employee “for engaging in speech requires 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public] . . . employer, in promoting the efficiency of the public services it performs through its employees'” … . This balancing test recognizes that the public employer must be permitted a level of control over its employees so it may fulfill essential services, such as public safety and education, efficiently and effectively …, but also that “[v]igilance is necessary” to ensure public employers do not use their authority “to silence discourse[] not because it hampers public functions but simply because superiors disagree with the content of [the] employees' speech” … . Matter of Santer v Board of Educ of E Meadow Union Free Sch Dist, 2014 NY Slip Op 03189, CtApp 5-6-14

 

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Supervision, Even If Inadequate, Could Not Have Prevented Injury Caused by the Sudden, Unanticipated Act of Another Student—Summary Judgment to Defendant Properly Granted

The First Department determined that plaintiff’s injury on the playground could not have been prevented by supervision. Therefore the alleged inadequate supervision was not a proximate cause of the injury. Plaintiff was injured when he hit a pole while running away from another student. The court noted that the board of education, not the city, is the proper party.  The city is a separate legal entity not responsible for the torts of the board:

As to the claim against the Board, it is well settled that

“[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another. A teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances … .

“Even if a breach of the duty of supervision is established, the inquiry is not ended; the question arises whether such negligence was the proximate cause of the injuries sustained” … . ” Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted'” … . Thus, “[a]n injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act” … .

Here, even assuming that plaintiff could demonstrate that the supervision during the gym class was inadequate, the Board established a prima facie case for summary judgment by demonstrating that the accident was the result of a series of sudden and spontaneous acts and that any lack of supervision was not the proximate cause of the infant plaintiff’s injury … . Jorge C. v City of New York, 2015 NY Slip Op 03772, 1st Dept 5-5-15

 

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Village Not Liable for Failure to Place a Crossing Guard at a Particular Intersection—Placement of Crossing Guards Is a “Discretionary,” Not “Ministerial,” Government Action—No Liability Absent Special Relationship to Plaintiff

Infant plaintiff was struck by a car as he was crossing a street after leaving school.  There was no crossing guard at the intersection where infant plaintiff was struck, but there were crossing guards at nearby intersections.  The Second Department determined that the placement of crossing guards was a “discretionary,” not a “ministerial” action.  “[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result … “.  The municipality (village) was not liable absent a special relationship with the infant plaintiff apart from a duty to the general public:

“Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . ” [D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'” … . The assignment of crossing guards to intersections falls within the definition of a discretionary function … .

Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating that its actions were discretionary. Although the Village had assigned crossing guards to certain intersections near the school, its decision not to post a crossing guard at the subject intersection does not give rise to liability on the part of the Village … . McCants v Hempstead Union Free School Dist., 2015 NY Slip Op 03136, 2nd Dept 4-15-15

 

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Community College Foundation, a Not-for-Profit Corporation, Failed to Utterly Refute the Allegation that It Was a Public Entity Subject to FOIL Requests

After petitioners’ Freedom of Information Law (FOIL) request for documents was denied by the Nassau County Community College Foundation (Foundation), petitioners brought an Article 78 proceeding to compel production. The Foundation is a not-for-profit-corporation formed to support the community college. The Foundation argued that it was not a public agency and therefore was not subject to FOIL requests.  Supreme Court dismissed the petition.  The Second Department reversed, finding that the documents submitted by the Foundation did not utterly refute the allegation that the Foundation had the attributes of a public entity. The Second Department noted that public agencies subject to FOIL include “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature” … .

FOIL “was enacted to promote open government and public accountability’ and imposes a broad duty on government to make its records available to the public'” … . All “public agencies” are subject to FOIL … . An “agency” is “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature” … .Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 2015 NY Slip Op 02972, 2nd Dept 4-8-15

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Allegations of Abuse of a Student by a School Bus Monitor Raised Questions of Fact Re: Negligent Supervision of the Student, Negligent Supervision and Training of the Monitor, and Whether the Monitor Was Acting Within the Scope of Her Employment

The Second Department, reversing Supreme Court, determined the defendant school district’s motion for summary judgment should not have been granted.  The complaint alleged a school bus monitor physically and mentally abused plaintiffs’ son, a student with severe mental disabilities.  The court determined the school did not establish it was unaware of the monitor’s propensity for the alleged misconduct (there was evidence of prior complaints). For that reason, the causes of action for negligent supervision of plaintiffs’ son and negligent supervision and training of the monitor should not have been dismissed. The court further determined the school did not demonstrate the actions taken by the monitor were within the scope of her employment, so the cause of action for negligent supervision and training of the monitor was viable.  The court noted that a negligent supervision and training cause of action would be precluded if the employee were shown to have acted within the scope of her employment, but suit under a “respondeat superior” theory would be possible:

Schools have a duty to adequately supervise the students in their care, and may 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 … . 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 … .

Contrary to the Supreme Court’s determination, the school defendants failed to establish, prima facie, that the school district had no specific knowledge or notice of [the monitor’s] propensity to engage in the misconduct alleged. ***

For the same reason, the Supreme Court erred in directing the dismissal of the plaintiffs’ second cause of action insofar as it alleged negligent supervision and training of [the monitor]. 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 … . * * *

“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training”.  … [T]he school defendants did not establish, prima facie, that [the monitor] was acting within the scope of her employment during the alleged incidents. Consequently, the plaintiffs were not precluded from claiming that the school district was negligent in its supervision and training of [the monitor]. Timothy Mc. v Beacon City School Dist., 2015 NY Slip Op 02942, 2nd Dept 4-8-15

 

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Appellate Division Should Have Allowed Respondent to Answer Petition After Dismissal of the Petition Was Reversed by the Appellate Division

The Court of Appeals determined the Appellate Division erred when it did not remand an Article 78 proceeding to Supreme Court to allow the respondent university (NYU) to submit an answer to the petition.  The petition was brought by a dental student seeking redress after she was expelled.  Supreme Court dismissed the petition.  The Appellate Division reversed:

The principal issue raised by this appeal is whether the Appellate Division erred by failing to remand to Supreme Court to permit NYU to file an answer pursuant to CPLR 7804 (f). That provision specifies that where a respondent moves to dismiss a CPLR article 78 petition and the motion is denied, “the court shall permit the respondent to answer, upon such terms as may be just” … . We have indicated, however, that a court need not do so if the “facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” … . Since “the motion papers” in BOCES “clearly did not establish that there were no triable issues of fact,” we held that “the procedure dictated by CPLR 7804 (subd [f]) should have been followed” … . For the same reason, NYU should be permitted to answer in this case.

A student subject to disciplinary action at a private educational institution is not entitled to the “full panoply of due process rights” … . Such an institution need only ensure that its published rules are “substantially observed” … . And here, triable issues of fact exist with regard to whether NYU substantially complied with its established disciplinary procedures. Matter of Kickertz v New York Univ., 2015 NY Slip Op 02800, CtApp 4-2-15

 

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Misrepresentations About Expunged Drug-Related Offenses on Student’s Law School Admission Application Supported the Rescinding of the Student’s Admission After Completion of Three Semesters

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, determined a law school did not act arbitrarily and capriciously when it determined a student had made misrepresentations about (expunged) criminal offenses in his admission-application and rescinded his admission after three semesters of study:

Courts have a “restricted role” in reviewing determinations of colleges and universities … . A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules … or imposes a penalty so excessive that it shocks one’s sense of fairness … . None of those factors is present here.

The law school’s treatment of [the student] was rational insofar as it was not wholly inconsistent with the school’s approach to rescission of admission in general. The law school states that while it routinely receives, and often grants, requests from enrolled students to amend the criminal history sections of their applications, such amendments usually involve minor offenses such as open container or traffic violations, or small quantity marijuana possession. Amendments are by no means guaranteed – -the law school states that on at least two occasions, when the information contained in the subsequent disclosure would have prevented the individual from being considered for admission, the students’ admission was rescinded.

The law school avers that it has an unwritten policy of not admitting people who sell drugs and that if [the student] had disclosed on his application that his arrest was for the distribution of LSD to an undercover officer and possession with intent to distribute, his application would have been denied during the initial screening process. The school explains that it generally distinguishes between applicants with a history of personal drug use, and those with a history of drug dealing – – the former can be accepted under certain circumstances, but the latter are not. Matter of Powers v St. John’s Univ. Sch. of Law, 2015 NY Slip Op 02799, CtApp 4-2-15

 

 

Court’s Power to Review Dismissal for Academic Reasons Explained

The Second Department upheld the dismissal of a student’s petition challenging her expulsion from a college nursing program for academic reasons.  The Second Department explained its limited review powers in this context:

Unlike disciplinary measures taken against a student, institutional assessments of a student’s academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators … . Thus, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations … . Although determinations made by educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute… . Here, the petitioner’s professors at the College made a substantive evaluation of her academic capabilities, and found that her clinical skills were not sufficient to pass the course designated as Nursing 204. There is no evidence in the record that the professors’ evaluations were made in bad faith or were arbitrary and capricious or irrational. Nor is there any evidence of a violation of the New York or United States Constitution, or any statute … . Matter of Zanelli v Rich, 2015 NY Slip Op 02775, 2nd Dept 4-1-15

 

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