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Application to File Late Notice of Claim Against School District Properly Granted in Absence of Reasonable Excuse—School District Had Timely Actual Notice and Could Not Demonstrate Prejudice

The Second Department determined Supreme Court properly granted the application to file a late notice of claim against a school district, in the absence of a reasonable excuse for the lateness:

In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served, the court must consider whether (1) the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition, and (3) the delay would substantially prejudice the public corporation in its defense on the merits … .

Here, the City School District of the City of Long Beach (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. … Since the District acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice … . The District’s conclusory assertions of prejudice, based solely on the petitioner’s six-week delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing … .

While the petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the further delay in commencing this proceeding … , the absence of a reasonable excuse is not fatal to a petition where, as here, there was actual notice and an absence of prejudice … . Matter of Fennell v City School Dist of city of Long Beach, 2014 NY Slip Op 04192, 2nd Dept 6-11-14

 

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Probationary Employee Fired in Bad Faith for Union Work—Supreme Court Had the Power to Reinstate Her But Not to Grant Her Tenure

The Second Department determined a probationary teacher demonstrated she was terminated in bad faith.  The court noted that Supreme Court did not have the power to grant the probationary teacher tenure, something only the administrative agency has the power to do:

A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law … . The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose … . Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods. Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith …, in response to the petitioner’s showing, the appellants failed to establish that the discontinuance of the petitioner’s probationary employment was the result of poor performance. The record demonstrates that the petitioner began [*2]to receive “Unsatisfactory” ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner’s performance began to precipitously decline. Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits … .

However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009. ” While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance'” … . Matter of Capece v Schultz, 2014 NY Slip Op 03834, 2nd Dept 5-28-14

 

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Question of Fact Raised Re: Negligent Supervision of Student by School in an Indoor Floor Hockey Game—Student Injured by Gym Teacher Who Was Participating in the Game

The Second Department determined plaintiff, a student playing supervised indoor floor hockey in school, stated a cause of action for negligent supervision:

“A school has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent” … . A school is under a duty to adequately supervise the students in its charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision … . “Whether a student is properly supervised depends largely on the circumstances attending the event'” … . * * *

The defendants’ submissions raised questions of fact as to whether the conduct of [the gym teacher], who was participating in the game during gym class and was involved in the contact which allegedly injured the plaintiff, constituted proper supervision, as well as whether the alleged negligent supervision was a proximate cause of the plaintiff’s injuries … . Godoy v Central Islip Union Free Sch Dist, 2014 NY Slip Op 03652, 2nd Dept 5-21-14

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Security Guard and College Had No Duty to Protect Taxi Driver from Attack by Students on Campus—Plaintiff Was Not a Third Party Beneficiary of Contract Between Security Company and College

The Second Department determined defendants security company (Secuitas), security guard (Jarrett) and college (Manhattanville) did not owe any duty to a taxi driver who was allegedly attacked and injured by students on a college campus.  The complaint alleged a security guard (Jarrett) was nearby and did nothing to intervene in the attack:

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party … . Before an injured party may recover as a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him or her from physical injury … .

The plaintiff here was not a third-party beneficiary of the contract between Securitas and Manhattanville, as the contract did not contain any express provision that it would protect individuals on the campus from physical injury or attack … . Securitas and Jarrett did not assume a duty to exercise reasonable care to prevent harm to the plaintiff by virtue of its contractual duty to provide an unarmed security guard … . Securitas did not assume a duty pursuant to the contract to prevent assaults, or to protect the plaintiff from physical injury inflicted by intervening third-party assailants … . As such, Securitas and Jarrett established their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact. Ramirez v Genovese, 2014 NY Slip Op 03673, 2nd Dept 5-21-14

 

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School District Owed No Duty of Care to Student Struck by Car Before School Bus Stopped to Pick Her Up/Bus Driver Had Missed Student’s Stop, Had Turned Around, and Was Driving Back Toward the Student When She Was Struck

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a school district did not owe any duty to a student who was struck by a car before the bus stopped to pick her up.  The bus driver mistakenly drove past the stop where the student was waiting.  The driver turned the bus around.  As the driver was heading back toward the student's stop, the student was struck by a car. The Court of Appeals essentially agreed with the dissenting appellate division justices, whose position was described as follows:

The dissenting Justices would have reversed Supreme Court's order and granted the District's motion in its entirety. …[T]hey observed the “well settled” rule that the District's duty flowed from physical custody and control; that at the time of the accident the District did not have physical custody of the child, who thus remained outside its orbit of authority; and that the District therefore “owed no duty to the child in this situation, and, absent duty, there can be no liability” … .

The dissenting Justices rejected plaintiff's contention, endorsed by the majority, that the District “assumed a duty to the child as a consequence of the potentially hazardous situation allegedly created by the school bus driver in turning the bus around after missing the bus stop” … . Williams v Weatherstone, 2014 NY Slip Op 03425, CtApp 5-13-14

 

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Question of Fact Raised about Whether Injury at Summer Day Camp Resulted from Inadequate Supervision

The Second Department determined plaintiff had raised a question of fact about whether games played at a summer day camp were adequately supervised.  The complaint alleged the injury was caused when plaintiff was pushed by an older child, and futher alleged the five teens who were supposed to be supervising the game were sitting together on a bench, not paying any attention to the game:

“[S]chools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision” … . Whether such supervision was adequate and if, inadequate, whether it was a proximate cause of the subject injuries are generally questions for the trier of fact to resolve … . “An injury caused by the impulsive, unanticipated act of a fellow [camper or] 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” … .  Osmanzai v Sports & Arts in Schools Found Inc, 2014 NY Slip Op 02760, 2nd Dept 4-23-14

 

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Commissioner of Education Has Primary Jurisdiction Over Dispute About the Appropriate Pay for a School Principal Whose Position Was Abolished But Who Was Subsequently Assigned an Assistant Principal Position/Petition for Stay of Arbitration Pursuant to the Collective Bargaining Agreement Should Have Been Granted/Arbitration Prohibited by Public Policy

The Fourth Department determined Supreme Court should have granted petitioner’s application for a stay of arbitration.  A former principal whose position was abolished was hired as an assistant principal.  A grievance was filed by respondent on the former principal’s behalf contending that her new position warranted the same level of pay she had received in the abolished position. After the grievance was denied by petitioner, the respondent demanded arbitration pursuant to the collective bargaining agreement.  The Fourth Department determined the demand for arbitration should have been denied because the matter must be determined by the Commission of Education in the first instance:

It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim (see CPLR 7501…). In making the threshold determination of arbitrability, the court applies a two-part test. It first determines whether “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . “If no prohibition exists,[the court then determines] whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement” … .

Here, we agree with petitioner that the Commissioner of Education has primary jurisdiction over the parties’ dispute, and that arbitration is therefore prohibited by public policy. As we have previously noted, “ ‘the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether the . . . former position and the new position are similar within the meaning of Education Law § [2510 (3) (a)]’ ” … . Based on his or her specialized knowledge and expertise, the Commissioner of Education should “resolve, in the first instance,” the issue of fact whether two positions are sufficiently similar under Education Law § 2510 … . Matter of Arbitration …, 285, 4th Dept 3-28-14

 

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Knowledge of the Health Issue Underlying Plaintiff’s Claim, and Knowledge of Another Similar Claim, Was Not Enough to Provide Defendant with Notice of Plaintiff’s Claim/Request to File Late Notice of Claim Should Not Have Been Granted

Over a two-justice dissent, the Fourth Department determined Supreme Court erred in granting plaintiff’s application to file a late notice of claim.  Plaintiff, a wrestler, had contracted herpes from another high school wrestler.  The school had knowledge of the issue (a Health Advisory) and of another wrestler’s claim against the school based upon the same facts.  The Fourth Department determined that knowledge of the issue and the  other wrestler’s claim was not sufficient to put the school on notice about the plaintiff’s claim:

Where a claimant does not offer a reasonable excuse for failing to serve a timely notice of claim, a court may grant leave to serve a late notice of claim only if the respondent has actual knowledge of the essential facts underlying the claim, there is no compelling showing of prejudice to the respondent …, and the claim does not “patently lack merit” … . Here, respondents asserted that, until claimant made the instant application, they had no knowledge that he had contracted herpes or otherwise had been injured at the tournament. Although claimant offered no evidence to the contrary, he essentially contended that respondents should have known of his injury because another wrestler had filed a timely notice of claim regarding an identical injury and because respondents had received Health Advisory #279a.

As we have repeatedly stated, actual knowledge of the essential facts of a claim requires “[k]nowledge of the injuries or damages claimed by a [claimant], rather than mere notice of the underlying occurrence” … . Here, claimant’s proof in support of his application establishes, at most, that respondents had constructive knowledge of his claim. In other words, there is nothing in the notice of claim filed by the other wrestler who was infected at the tournament or in Health Advisory #279a that gave respondents actual knowledge that claimant was similarly injured.Thus, even assuming, arguendo, that respondents suffered no prejudice from the delay and that the proposed claim against them does not patently lack merit, we conclude that the court abused its discretion in granting claimant’s application for leave to serve a late notice of claim … . Matter of Candino v Starpoint Central School District, 83, 4th Dept 3-21-14

 

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Teacher’s Termination for a One-Time Mistake “Shocks One’s Sense of Fairness”

The First Department determined the termination of a teacher’s employment was a punishment which “shocked one’s sense of fairness.”  The teacher, who was well-respected and had an unblemished record, was found to have engaged in sexual conduct with an adult colleague in the school building after hours. The incident was highly publicized.  In finding the punishment too severe, the court wrote:

“[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved” … . * * *

While petitioner’s behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake … . Of critical significance is that, unlike matters involving some form of romantic involvement or other inappropriate conduct with a student, petitioner’s engaging in what appeared to be consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper.  * * *

Nor is there is any indication in the record that petitioner’s conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination … . Matter of Brito v Walcott, 2014 NY Slip Op 01813, 1st Dept 3-20-14

 

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Limited Role of Courts in Determining Applications to Stay Arbitration (Re: a Collective Bargaining Agreement [CBA]) Explained

The Third Department determined the petition to stay arbitration in a teacher-tenure matter should have been denied. In so finding, the Third Department explained the limited role of the courts in determining applications to stay arbitration:

The court’s role in determining applications to stay arbitration is limited and, as relevant here, requires a determination of whether the parties have agreed to arbitrate the dispute at issue … .Inasmuch as respondent has asserted a violation of the evaluation procedures agreed to by the parties as part of the CBA, there is a rational relationship between the subject of the grievance and the CBA … . The question of whether petitioner violated these procedures “goes to the merits of the grievance, not to its arbitrability” … . “[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the[] parties'” … . Matter of Brunswick Central School District …, 517060, 3rd Dept 2-20-14

 

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