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School Failed to Demonstrate Assault on Student Was Unforeseeable—Summary Judgment Properly Denied

The Second Department determined the defendant school district was not entitled to summary judgment because it failed to demonstrate the alleged assault on another student was unforeseeable:

“Schools 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” … . In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, the third-party acts could reasonably have been anticipated … .

Here, in support of that branch of its motion which was for summary judgment dismissing the causes of action alleging negligent supervision, the District failed to establish, prima facie, that the alleged assault was an unforeseeable act or that it had no actual or constructive notice of prior conduct similar to the subject incident … . Cruz v Brentwood Union Free Sch Dist, 2015 NY Slip Op 01604, 2nd Dept 2-25-15

 

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Jury’s Conclusion the School Negligently Supervised Students But the Negligent Supervision Was Not the Proximate Cause of Plaintiff’s Injuries Was Supported by the Evidence/Inconsistent Verdict Issue Not Preserved Because Not Raised Before the Jury Was Discharged

The Second Department noted that the issue whether the jury’s conclusion that the school district negligently supervised students who assaulted plaintiff but that the negligent supervision was not the proximate cause of plaintiff’s injuries was not preserved for appeal because no objection to the verdict was raised before the jury was discharged.  The court further noted that the jury’s conclusion was based upon a fair interpretation of the evidence (and therefore did not constitute an inconsistent verdict):

The plaintiffs contend that the jury verdict finding that the defendant … School District … negligently supervised certain students who assaulted the plaintiff …, but that such negligence was not a proximate cause of his injuries, is inconsistent and contrary to the weight of the evidence. Since the plaintiffs did not raise the issue of the claimed inconsistent jury verdict before the jury was discharged, that issue is not preserved for appellate review … . Contrary to the plaintiffs’ further contention, the jury verdict was not against the weight of the evidence. The jury’s finding that, while the School District negligently supervised these students, such negligence was not a proximate cause of [plaintiff’s] injuries, was based on a fair interpretation of the evidence… . LaMacchia v City of New Rochelle, 2015 NY Slip Op 01422, 2nd Dept 2-18-15

 

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Criteria for Discovery in a Special Proceeding Explained/Criteria for Leave to File a Late Notice of Claim Explained

The Second Department determined petitioner’s application for leave to file a late notice of claim was properly denied, as was petitioner’s request for discovery prior to the hearing.  The court explained the relevant analytical criteria:

In a special proceeding, where disclosure is available only by leave of the court (see CPLR 408), the Supreme Court has broad discretion in granting or denying disclosure …, although it must balance the needs of the party seeking discovery against such opposing interests as expediency and confidentiality … . Contrary to the petitioners’ contention, they failed to demonstrate that the requested discovery was necessary and that providing the requested discovery would not unduly delay this proceeding … .

In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, (2) the petitioner had a reasonable excuse for the delay, and (3) the public corporation was prejudiced by the delay in its ability to maintain its defense on the merits (see Education Law § 3813[2-a]; General Municipal Law § 50-e[5]…). The injured petitioner’s assertion that she did not immediately appreciate the nature and severity of her injuries during the first 90 days after the subject incident is unavailing without supporting medical evidence explaining why the possible permanent effects of the injuries took so long to become apparent and to be diagnosed … . * * *

In addition, the petitioners failed to establish that the respondent acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or within a reasonable time thereafter … . * * *

Finally, the petitioners failed to establish that the respondent would not be substantially prejudiced in its defense on the merits by the significant delay should leave be granted … . Matter of Bramble v New York City Dept of Education, 2015 NY Slip Op 01450, 2nd Dept 2-18-15

 

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“Arbitrary and Capricious” Defined/Criteria for Elimination of a Public-Employee Position Explained

In affirming the school district's actions in creating a new position and eliminating an existing position, the Fourth Department explained the relevant review standards:

“The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact' . . . Arbitrary action is without sound basis in reason and is generally taken without regard to the facts… . * * *

“It is well established that a public employer may abolish civil service positions for the purposes of economy or efficiency . . . , but it may not act in bad faith in doing so . . . , nor may it abolish positions as a subterfuge to avoid the statutory protection afforded civil servants before they are discharged . . . A petitioner challenging the abolition of his or her position must establish that the employer in question acted in bad faith” … . Matter of Ifedigbo v Buffalo Pub Schools, 2015 NY Slip Op 01125, 4th Dept 2-6-15


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Lowering Health Insurance Benefits for School-District Retirees Below Level Afforded Active Employees Violated the Insurance Moratorium Statute

The Fourth Department determined lowering the health insurance benefits for retired school district employees below the level of benefits afforded active employees violated the Insurance Moratorium Statute:

The moratorium statute sets a minimum baseline or “floor” for retiree health benefits, and that “floor” is measured by the health insurance benefits received by active employees … . In other words, the moratorium statute does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees … . Matter of Anderson v Niagara Falls City School Dist, 2015 NY Slip Op 01098, 4th Dept 2-6-15


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Despite Mandatory Language In the Statute Requiring that an Action Against a School District Be Brought in the County Where the School District Is Located, the Court Has the Discretion to Grant a Motion for a Change of Venue Based Upon the Convenience of Material Witnesses and the Absence of Prejudice to the School District

The Second Department determined that, despite the mandatory language of CPLR 504, a change of venue based upon the convenience of witness was appropriate in an action against a school district:

CPLR 504 provides, in relevant part, that “the place of trial of all actions against . . . school districts . . . shall be . . . in the county in which such . . . school district . . . is situated” (CPLR 504[2]…). “The purpose of CPLR 504, which applies not just to school districts but also to counties, cities, towns, and villages, is to protect municipal entities and their employees from the inconvenience of an alternative venue … . “Nevertheless, and despite the seemingly unforgiving language of the statute, venue may be changed to a non-mandated county upon a showing of special circumstances” … . The decision of whether to grant a change of venue is committed to the providently exercised discretion of the trial court … .

Here, the plaintiff established that the convenience of material witnesses and the ends of justice outweigh the asserted governmental inconvenience … . The plaintiff produced the affirmations from his treating physicians, both of whom maintain a surgical practice in Kings County, and an affidavit from an eyewitness to the accident, who resides in Kings County … . Each prospective witness disclosed the facts underlying his proposed testimony and asserted that he will be inconvenienced if the trial were conducted in Suffolk County rather than in Kings County … . The defendant, however, did not assert that any of its employees witnessed the accident … . Furthermore, the defendant failed to establish that any of its trial witnesses would be inconvenienced by traveling to Kings County. Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 510(3) to change the venue of the action from Suffolk County to Kings County. Xhika v Rocky Point Union Free School Dist, 2015 NY Slip OP 00874,d 2nd Dept 2-4-15


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School’s Duty to Supervise the Child Had Ended When the Child Was Struck by a Car Just Outside the School Building/City Is Immune from Liability for Alleged Negligent Traffic Control—No “Special Relationship” with the Child

The Second Department determined the school's duty to supervise plaintiff's child had ended at the time the child was struck by a car outside the school building.  Plaintiff had already taken custody of the child at the time.  In addition, the court determined that the city was immune from liability for the alleged negligent traffic control because no special relationship between the city and the child existed:

A school's duty to supervise the students in its charge arises from its physical custody over them … . The rationale underlying this duty is that when a school takes custody of a child, it deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived .. . For this reason, a school's duty to supervise is generally viewed as being “coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases” … . In support of their motion, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they had released the infant to the plaintiff's custody and, thus, he was no longer in the custody of the municipal defendants when the accident occurred.

… A municipal defendant is immune from liability for negligence claims arising from the performance of its governmental functions … . However, there is a “narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a special relationship' between the municipality and the claimant” …. “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . Regulation and control of traffic and public transportation “is the exercise of an unquestioned governmental function” … . Here, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they did not owe the infant a special duty and, in response, the plaintiff failed to raise a triable issue of fact. Giresi v City of New York, 2015 NY Slip Op 00844, 2nd Dept 2-4-15


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Injury Caused by Another Student In Gym Class Could Not Have Been Prevented by Supervision/Unsigned Depositions Which Were Certified by the Stenographer Should Have Been Considered by the Court

The Second Department determined summary judgment should have been granted to the defendant in an action stemming from infant-plaintiff’s participation in a gym-class basketball game.  The actions of another player, which caused the injury, could not have been prevented by supervision.  The Second Department noted that the unsigned deposition transcripts, which were certified by the stenographer, should have been considered by Supreme Court:

The Supreme Court also should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the New York City Department of Education (hereinafter the DOE). In support of their motion, the defendants submitted the transcripts of the deposition testimony of the infant plaintiff and teachers … . While those transcripts were unsigned, they were certified by the stenographer, and the plaintiffs do not challenge their accuracy. Thus, contrary to the plaintiffs’ contention, the transcripts were admissible and should have been considered by the Supreme Court on the defendants’ motion … . This evidence demonstrated, prima facie, that the spontaneous act of the other student in grabbing the infant plaintiff’s left arm from behind and throwing or dragging him to the ground as the infant plaintiff attempted to shoot a basketball during a basketball game in gym class occurred in such a short span of time that it could not have been prevented even by the most intense supervision … . Moreover, the other student’s alleged prior conduct was insufficient to place the DOE on notice of the conduct that led to the infant plaintiff’s injury … . Thomas v City of New York, 2015 NY Slip Op 00748, 2nd Dept 1-28-15

 

Criteria for Court Review of Disciplinary Actions Taken by a Private School

The Second Department determined Supreme Court properly dismissed the petition seeking reinstatement of a student who had been expelled from a private school (Adelphi) for academic dishonesty.  The Second Department explained the disciplinary procedures required of a private school and the courts’ power to review the disciplinary actions taken by a private school:

“[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, Adelphi substantially complied with its own rules and regulations as set forth in its Code of Ethics in suspending and expelling the infant for acts of academic dishonesty. Adelphi was not required to hold hearings before its Disciplinary Committee before imposing discipline, and the petitioner’s further challenges to the procedures taken are likewise without merit. Further, the determinations that the infant had committed acts of academic dishonesty which warranted suspension and expulsion were not arbitrary and capricious. “When a private school expels a student based on facts within its knowledge that justify the exercise of discretion’, then a court may not review this decision and substitute its own judgment” … . Matter of Khaykin v Adelphi Academy of Brooklyn, 2015 NY Slip Op 00540, 2nd Dept 1-21-15

 

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Questions of Fact Raised About Whether the Risks of Participating in a Self-Defense Tournament Were Concealed and Unreasonably Increased and Whether Infant Plaintiff Was Negligently Supervised

The Second Department determined the school district’s motion for summary judgment was properly denied because plaintiff had raised triable questions of fact about whether infant plaintiff assumed the risk of injury in a self-defense tournament and whether the school was negligent in supervising the self-defense tournament:

The infant plaintiff allegedly was injured while competing in her high school’s “self-defense tournament,” a voluntary competition open to female students who were enrolled in a self-defense class taught by Joseph Biddy, a physical education teacher. The self-defense class was one of several electives that female students could take to satisfy the district’s physical education requirement. The plaintiffs allege, inter alia, that, since the self-defense class was in actuality a mixed martial arts class, the defendant breached its duty of care to the infant plaintiff by allowing the class to be instructed by a person with little martial arts training, and allowing that person to referee the tournament. The plaintiffs contend that the infant plaintiff and the other students in the class were not properly or sufficiently trained and that Biddy did not have the requisite knowledge and experience to recognize the dangers posed by the moves being performed in the tournament. * * *

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity, consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “[T]he plaintiff’s consent does not merely furnish the defendant with a defense; it eliminates the duty of care that would otherwise exist” … . However, the doctrine of primary assumption of risk does not apply to bar a cause of action where the risks at issue were unassumed, concealed, or unreasonably increased … .

On its motion for summary judgment, the defendant failed to establish, prima facie, that by voluntarily participating in the self-defense tournament, the infant plaintiff consented to the risks associated with the move that ultimately caused her injuries. Rather, the defendant’s submissions demonstrated that the risks of the move that ultimately caused the infant plaintiff’s injuries were concealed and unreasonably increased. Pierre v Ramapo Cent Sch Dist, 2015 NY Slip Op 00348, 2nd Dept 1-14-15

 

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