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Contribution and Indemnification Unavailable in Breach of Contract Action; Notice of Claim Requirement Under Education Law Never Triggered by Denial of Payment

In a complicated breach of contract action arising out of construction projects for defendant school district, the Second Department determined contribution and indemnification were unavailable for purely economic loss from breach of contractual obligations (CPLR 1401, 1403, 3019).  In addition, the Second Department determined that the need to file a notice of claim pursuant to Education Law 3813 was never triggered by a denial of payment.  On the notice of claim issue, the Second Department wrote:

Education Law § 3813(1) requires a party to serve a notice of claim upon a school district within three months after the accrual of such claim as a condition precedent to the commencement of an action …. Claims arising out of a breach of contract accrue when “payment for the amount claimed was denied” (Education Law § 3813[1]). A denial of payment is only deemed to occur “upon an explicit refusal to pay” or when a party should have viewed its claim as having been constructively rejected …. Where no express or constructive denial of payment has been made, the obligation to serve a notice of claim is not triggered…. Here, the District failed to demonstrate that it expressly or constructively denied payment to PGA for its continued work on the projects. Thus, the District did not establish its prima facie entitlement to judgment …based upon PGA’s failure to serve a notice of claim in accordance with Education Law § 3813(1)… .  Capstone Enters of Port Chester, Inc v Board of Educ Irvington Union Free Sch Dist, 2013 NY Slip Op 03448, 2nd Dept, 5-15-13

 

 

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Exclusion of Petitioner from Hearing During Testimony of Primary Witness Required Vacation of Award

The exclusion of petitioner from an administrative hearing during the testimony of the only eyewitness to an alleged assault by petitioner required vacation of the arbitrator’s award.  The First Department wrote:

Petitioner’s exclusion from the administrative hearing during the testimony of the only eyewitness to her alleged hitting of a student—the student himself—violated her constitutional right to confront the witnesses against her …. Nothing in the record indicates that a compelling competing interest warranted the exclusion. There is no finding that petitioner’s presence would cause trauma to the student or substantially interfere with his ability to testify. Indeed, the record contains no indication at all of the basis for the exclusion. Petitioner contends that in addition to her constitutional right she had an absolute right to confront witnesses under Education Law § 3020-a. However … there is no such absolute right under § 3020-a… .  Matter of Stergiou v NYC Dept of Educ, 2013 NY Slip Op 03432, 1st Dept, 5-14-13

 

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Assumption of Duty to Maintain Sidewalk; No Expert Notice Needed for Treating Physician

In reversing a judgment after a jury trial in a slip and fall case, the First Department discussed several issues that came up in the trial, including the denial of a missing witness charge with respect to one of the defense doctors, a translation problem raised by the translator (which may have given the jury the misimpression plaintiff was confused about an important issue), the assumption by the defendant Department of Education (DOE) of a duty to make the sidewalk outside a school (where plaintiff fell) safe, and the trial court’s ruling that one of plaintiff’s treating physicians could not testify because no “expert witness” notice was provided.  In addressing the school’s assumption of a duty with respect to the condition of the sidewalk and the exclusion of plaintiff’s treating physician, the First Department wrote:

The DOE argues on appeal that the action should have been dismissed as against it because it did not own the sidewalk where plaintiff fell. New York City Charter § 521(a) provides that “title to all property … acquired for school or educational purpose … shall be vested in the city, but under the care and control of the board of education for the purposes of public education, recreation and other public uses.” Education Law § 2554(4) affirmatively charges the DOE with responsibility for “the care, custody, control and safekeeping of all school property or other property of the city used for educational, social or recreational work.” ……[W]here there was evidence that the DOE affirmatively undertook the duty to maintain the sidewalk, the court was well within its discretion in submitting the question of the DOE’s negligence to the jury ….

CPLR 3101(d)(1) provides that, upon request, parties must identify those expected to be called as experts and “disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify … and a summary of the grounds for each expert’s opinion.” However, the failure to serve a CPLR 3101(d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician’s expert testimony as to causation where there has been disclosure of the physician’s records and reports, pursuant to CPLR 3121 and 22 NYCRR 202.17 … .  Hamer v City of New York, 2013 NY slip Op 03431, 1st Dept, 5-14-13

 

 

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College Had No Duty to Supervise Fraternity “Pledging” Activities

The Second Department affirmed the dismissal of an action brought by a student against his college alleging a failure to supervise a fraternity’s “pledging” activities (resulting in personal injuries).  The Court wrote:

“Absent a duty of care, there is no breach, and without breach there can be no liability” …. The existence of a legal duty presents a question of law for the court … . “New York has affirmatively rejected the doctrine of in loco parentis at the college level and colleges in general have no legal duty to shield their students from the dangerous activity of other students'” …. A duty, however, may be imposed upon a college where it has encouraged its students to participate in an activity and taken affirmative steps to supervise and control the activity ….  * * * [T]he plaintiff did not sufficiently allege that the University defendants’ involvement in the Fraternity’s initiation process was of a degree that gave rise to a duty… . Pasquaretto v Long Is Univ, 2013 NY Slip Op 03308, 2nd Dept, 5-8-13

 

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Prevailing Wage Law Not Preempted by Federal Telecommunications Act or Labor Relations Act

In upholding the finding that petitioner had failed to pay the prevailing wage for work done for a school district, the Third Department determined the prevailing wage law was not preempted by the federal Telecommunications Act and the Labor Management Relations Act:

Generally, a federal law may supersede a state law where Congress explicitly declares preemption as its intent …, or where the federal law is “‘so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it'” …. The Court of Appeals has observed, however, that “[t]he presumption against preemption is especially strong with regard to laws that affect the states’ historic police powers over occupational health  and safety issues” …. While the Telecommunications Act is intended to exclusively govern the field of telecommunications service (see 47 USC § 253 [a]), the prevailing wage law is a minimum labor standard … .As such, it falls within the Telecommunications Act’s safe harbor provision, which provides that  “[n]othing  in this section  shall affect the  ability of  a [s]tate to impose, on a competitively neutral basis . . . requirements necessary to . . . protect the public safety and welfare” (47 USC  §  253  [b]). … Nor is the prevailing wage law preempted by the federal Labor Management Relations Act. That statute provides that federal law governs suits to enforce collective bargaining agreements (see 29 USC § 185 [a]). While it is true that the Department  of Labor refers to collective bargaining agreements  to determine  prevailing wages,  those  agreements  are  not  necessarily determinative, and the rights conferred by the prevailing wage law  are independent of those conferred by  such  agreements … . Matter of Pascazi v Gardner, 513528, 3rd Dept, 5-2-13

 

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NYC Department of Education Must Defend Employees Sued for Alleged Use of Corporal Punishment

The Court of Appeals, in a full-fledged opinion by Judge Smith, held that “employees of the [NYC] Department of Education who are sued for using corporal punishment are entitled to a defense provided by the City, even though the employees’ conduct violated a State regulation.”  Judge Smith wrote:

…[W]e conclude that the authors of Education Law § 3028 intended to provide a defense even where an employee’s use of corporal punishment violated regulations. Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases — suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense.  Matter of Deborah Sagal-Cotler v Board of Education … Nos 73 & 74, CtApp, 4-25-13

 

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Late Notice of Claim Allowed In Absence of Reasonable Excuse

In affirming the grant of leave to file a late notice of claim in the absence of a reasonable excuse, the Second Department wrote:

Here, the Fire Island Union Free School District (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose …. Immediately after the petitioner allegedly was injured in an accident at a school in the District, the petitioner told the school’s custodian how the accident occurred, a District employee called emergency medical services, and the petitioner was transported to a hospital. An incident form was prepared by the District which indicated the time and place of the accident and the petitioner’s injuries, and the petitioner’s accident was discussed at a construction meeting attended by the school’s superintendent. 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 delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing … 

While the petitioner’s excuses for his failure to serve a timely notice of claim were not reasonable …, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and absence of prejudice …. Matter of Rodriquez v Woodhull Sch, 2013 NY Slip Op 02754, 2nd Dept, 4-24-13

 

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Question of Fact Raised About Whether School-Wrestler’s Risk of Injury Increased by Condition of Wrestling Mats

The Second Department ruled Supreme Court had properly denied the school’s motion for summary judgment because a question of fact had been raised about whether the way mats had been taped together increased the risk of injury to wrestlers:

“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”‘” … . “The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon” … . “If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies” … . However, “a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks” … . Philippou v Baldwin Union Free Sch Dist, 2012-02566, Index No 790/10, 2nd Dept, 4-17-13

 

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Appellate Courts Have Jurisdiction Pursuant to Article 78 to Review Denial of Request for Reconsideration of Disciplinary Determination by the Department of Education’s Office of Professional Discipline

The Third Department determined it has jurisdiction, pursuant to CPLR Art. 78, to review the denial of a request for reconsideration of a disciplinary determination by the Director of the Office of Professional Discipline (Department of Education):

Preliminarily, we reject respondent’s assertion that our Court lacks original subject matter jurisdiction over this proceeding. Respondent relies on the fact that only review of “decisions of the board of regents” should be brought to the Appellate Division in the first instance (Education Law § 6510 [5]); all other CPLR article 78 proceedings must be commenced in Supreme Court (see CPLR 7804 [b]; 506 [a], [b]). Here, the Board of Regents never acted upon petitioner’s application because respondent, the Director of OPD, has discretion to determine whether reconsideration of a disciplinary determination is warranted and, only if it is, to then refer the matter to a regents review committee that submits a report to the Board of Regents for a final determination …. We have, however,  previously held that where, as here, respondent  denies an  application for reconsideration, thereby determining  that it does not warrant referral to the Board of Regents, this Court has jurisdiction to review such denial under Education Law § 6510 (5)… .  Matter of Reddy v Catone…, 514467, 3rd Dept 4-11-13

 

 

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Procedure for Testing Adequacy of Causes of Action in Article 78 Petition; Criteria for Bad Faith Abolishment of Position

The Third Department upheld Supreme Court’s determination that the petitioner had stated a cause of action in his Article 78 proceeding for bad faith abolishment of his tenured Assistant Superintendent position.  The Third Department noted that the proper criteria for analysis in this Article 78 proceeding is the same as in a pre-answer motion to dismiss under CPLR 3211:

In a CPLR article 78 proceeding, objections in point of law may be raised either through  a pre-answer motion  to dismiss or – as here – in the verified answer  (see CPLR  7804  [f]). Such objections are appropriately afforded review similar in nature to that applied to defenses raised in a pre-answer motion to dismiss pursuant to CPLR 3211 (a).  *  *  *

A school district may abolish a position, even when this results in the discharge of a tenured employee, so long as it “has made a good faith determination based on economic considerations” … . *  *  * We agree with Supreme Court that [petitioner’s] specific and nonconclusory assertions, when deemed to be true for this purpose, were sufficient to allege that the abolition of his position “was motivated by reasons other than a desire to promote institutional efficiency and economy” and thus state a cause of action … .  Matter of Lally v Johnson City School District, 515488, 3rd Dept 4-4-13

 

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