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DEFENDANT NYC DEPARTMENT OF EDUCATION DID NOT OWE A DUTY TO A SCHOOL ADMINISTRATOR WHO WAS ATTACKED BY A STUDENT IN A SCHOOL HALLWAY; THERE WAS NO “SPECIAL RELATIONSHIP” BETWEEN DEFENDANTS AND PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the absence of a special relationship between plaintiff high school administrator and defendant NYC Department of Education precluded recovery for an attack on the administrator by a student in the school’s hallway:

“Absent the existence of a special relationship between the defendants and the . . . plaintiff, liability may not be imposed on the defendants for a breach of a duty owed generally to persons in the school system and members of the public” … . To succeed on a cause of action sounding in negligence, the plaintiff must establish that the defendants owed her a special duty of care … .

A plaintiff may demonstrate that a special relationship exists by showing, among other things, that the municipality “voluntarily assume[d] a duty that generate[d] justifiable reliance by the person who benefits from the duty,” or that “the municipality assume[d] positive direction and control in the face of a known, blatant and dangerous safety violation” … . A special relationship based upon a duty voluntarily assumed by the municipality requires proof of the following: “‘(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking'” … .

… The defendants’ submissions demonstrated that they did not voluntarily assume a duty toward the plaintiff. The defendants did not make any promises to the plaintiff or take any actions regarding security protocols in the school that amounted to an affirmative undertaking of protection by them on her behalf, nor could the plaintiff have justifiably relied on any such actions … . Notably, the plaintiff testified at her deposition that she had no reason to fear the student who allegedly assaulted her. The plaintiff also testified that, prior to the incident, the student had never made any threats toward her and she never asked the school to provide her with protection from the student. Moreover, the defendants did not take positive direction and control in the face of a known, blatant, and dangerous safety violation … . Villa-Lefler v Department of Educ. of the City of N.Y., 2024 NY Slip Op 02343, Second Dept 5-1-24

Practice Point: Absent a “special relationship’ between plaintiff school administrator and defendant NYC Department of Education, defendant is not liable for an attack on the administrator by a student in a school hallway.

 

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CHARTER SCHOOLS ARE NOT SUBJECT TO THE NOTICE OF CLAIM REQUIREMENTS IN THE EDUCATION LAW AND GENERAL MUNICIPAL LAW; PLAINTIFF-STUDENT, WHO HAD BEEN BULLIED AND WAS PUSHED TO THE FLOOR BY ANOTHER STUDENT, RAISED QUESTIONS OF FACT SUPPORTING THE NEGLIGENT SUPERVISION CAUSE OF ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, determined (1) charter schools are not subject to the notice of claim requirements of the Education Law and the General Municipal Law, and (2) plaintiff student, who allegedly had been bullied and was pushed to the floor by another student when the hallway was unsupervised, raised questions of fact supporting the negligent supervision cause of action:

Since charter schools are independent from school districts with respect to civil liability, financial obligations, and liability insurance coverage, it stands to reason that the extraordinary safeguards of prelitigation notification of claims applicable to school districts, municipalities and other wholly public entities would not apply to charter schools. * * *

The evidence presented triable issues of fact as to whether there were monitors present in the hallway at the time of the incident as required by the School’s policies and procedures and whether the presence of such monitors could have prevented the alleged pushing incident … . A. P. v John W. Lavelle Preparatory Charter Sch., 2024 NY Slip Op 02205, Second Dept 4-24-24

Practice Point: Charter schools are not subject to the notice-of-claim requirement in the Education Law and General Municipal Law; i.e., a plaintiff suing a charter school for negligence need not file or serve a notice of claim as a condition precedent.

 

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THE DEFENDANT SCHOOL DID NOT ELIMINATE TRIABLE QUESTIONS OF FACT ABOUT WHETHER IT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S ABUSIVE PROPENSITIES; THE NEGLIGENT HIRING AND NEGLIGENT SUPERVISION CAUSES OF ACTION IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the negligent hiring and negligent supervision causes of action against defendant school stemming from a teacher’s alleged abuse of plaintiff-student should not have been dismissed. There was a question of fact about whether the school district had constructive notice of the teacher’s abusive propensities:

… [G]iven the frequency of the alleged abuse, which occurred over a three-year period, and always occurred inside the same classroom during the school day, the defendants did not eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher or the plaintiff was not negligent, in light of, among other things, the teacher was on “probationary” status during the relevant period, the special education lessons during which the alleged abuse occurred were one-on-one and behind closed doors, the plaintiff testified at his deposition that the school principal “never came in” or “checked” on him during the lessons, and only a single observation report from Columbus Avenue Elementary School is available in the teacher’s employment file during the relevant period. MCVAWCD-DOE v Columbus Ave. Elementary Sch., 2024 NY Slip Op 01703, Second Dept 3-27-24

Practice Point: Here the defendant school did not eliminate questions of fact about whether it had constructive notice of the teacher’s abusive propensities in this Child Victims Act case. The alleged abuse took place often behind closed doors when the teacher, who was on probation, was alone with the plaintiff.

 

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PLAINTIFF STUDENT WAS INJURED WHEN SHE COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME; THE GAME WAS DEEMED AGE-APPROPRIATE AND THE SUPERVISION WAS DEEMED ADEQUATE; THE SCHOOL DISTRICT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant school district was entitled to summary judgment in this negligent supervision case. Plaintiff student was injured when she collided with another student during a supervised game which required running to pick up an object and running back to the finish line. The game was deemed to be age-appropriate and the supervision was deemed adequate:

… [T]he defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that it provided adequate supervision and instruction during the infant plaintiff’s gym class … . The infant plaintiff and her classmates were instructed “that there was to be no . . . tackling involved” in the game … . Since the inadvertent collision occurred quickly and without warning, the defendant demonstrated that “more intense supervision would not have prevented the spontaneous and accidental collision of the two children” … . S.T. v Island Park Union Free Sch. Dist., 2024 NY Slip Op 01743, Second Dept 3-27-24

Practice Point: Where a game is age-appropriate, the supervision is adequate, and the student’s injury was inadvertent and occurred suddenly without warning, the school will not be liable under a negligent supervision theory.

 

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THE DISCOVERY DEMANDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST DEFENDANT SCHOOL DISTRICT ALLEGING SEXUAL ABUSE BY A TEACHER WERE OVERLY BROAD AND UNDULY BURDENSOME AND SHOULD HAVE BEEN STRUCK IN THEIR ENTIRETY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discovery demands in this negligent supervision action against a school district, alleging the sexual abuse of plaintiff-student by a teacher, were overly broad and unduly burdensome. Therefore the demands should have been struck in their entirety with no attempt to prune them:

… [A] “‘ …party is not entitled to unlimited, uncontrolled, unfettered disclosure'” … . “Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper” … . A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information (see CPLR 3120[2] …). “Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it” … .

Here, many of the plaintiff’s discovery demands were palpably improper in that they were overbroad and burdensome … . The plaintiff’s discovery demands broadly sought, among other things, documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present. Thus, the Supreme Court should have denied the plaintiff’s motion pursuant to CPLR 3124 to compel the District to comply with the plaintiff’s first and second demands for discovery and granted the District’s application pursuant to CPLR 3103(a) for a protective order striking those demands in their entirety instead of pruning them … . Ferrara v Longwood Cent. Sch. Dist., 2024 NY Slip Op 01293, Second Dept 3-13-24

Practice Point: In this negligent supervision action against a school district alleging sexual abuse by a teacher plaintiff’s discovery demands included “documents pertaining to any complaint of sexual abuse by any employee of the District from January 1, 1997, to the present and any suspected romantic or sexual relationship between any teacher and any student at the school from 1990 to the present”. The demand was overly broad and unduly burdensome and was struck in its entirety.

 

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CLAIMANT, A TEACHER IN A CATHOLIC SCHOOL, WAS NOT GIVEN ENOUGH TIME TO CONSULT WITH HER DOCTOR ABOUT WHETHER TO OBEY THE COVID VACCINE MANDATE; THE DENIAL OF UNEMPLOYMENT INSURANCE BENEFITS REVERSED AND THE MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a teacher in a Catholic school, was not given enough time to consult with her doctor about the COVID vaccine. Claimant had been informed on or about September 24 she would be terminated if she did not get vaccinated by September 27. Claimant had already had COVID and wanted to discuss whether she had natural immunity with her doctor. The Board deemed her unable to meet an essential function of her job on September 28 and denied Unemployment Insurance benefits:

Although claimant testified that she was unsure about whether to get the vaccine, when she was asked, hypothetically, if she would have gotten the vaccine to keep her job if she had been provided more time, she testified that she would have if she “knew it was safe” and that she “probably” would have, provided she was given an opportunity to consult with her doctor. Even crediting the ALJ’s finding that claimant was notified on September 23, 2021 about the possibility of a vaccine requirement, providing claimant with only four days, two of which were weekend days, to comply with the vaccination mandate was unreasonable. In light of this finding, the Board’s decision that claimant voluntarily left her employment without good cause is not supported by substantial evidence and must be reversed … . Matter of Antonaros (Commissioner of Labor), 2024 NY Slip Op 00217, Third Dept 1-18-24

Practice Point: The claimant had had COVID and wanted to talk to her doctor about natural immunity before deciding to obey the vaccine mandate. Claimant was not given enough time to do so. The denial of Unemployment Insurance benefits was reversed and the matter remitted.

 

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PLAINTIFF SUED AN ILLINOIS SCHOOL ALLEGING THAT THE ONLINE COURSES OFFERED BY DEFENDANT SCHOOL DURING THE PANDEMIC CONSTITUTED A TRANSACTION IN NEW YORK WITHIN THE MEANING OF THE LONG-ARM STATUTE; BUT PLAINTIFF DID NOT ALLEGE SHE WAS IN NEW YORK WHEN SHE TOOK THE ONLINE COURSES; DEFENDANT’S MOTION TO DISMISS FOR LACK OF JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not raise a question of fact about whether defendant, an Illinois school, conducted a transaction in New York sufficient to confer long-arm jurisdiction. Because of the pandemic, the courses offered by the school were online. Plaintiff alleged a breach of contract by the school involving a grading issue. A major flaw in plaintiff’s case was that she did not allege she was in New York when she took the online courses:

… [T]he plaintiff failed to show that the defendants purposefully availed themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302(a)(1) … . While the plaintiff attests in her affidavit that since March 2020, she has not taken a class at the defendants’ Illinois location, that the only contact she had with the defendants since that date was either virtually or by telephone, and that none of the facts alleged in her complaint took place in person in Illinois, none of this demonstrates that the defendants were engaged in any activity in New York, let alone purposeful activity. Other than the plaintiff’s allegation that she is a New York resident, there is no other reference to New York in the complaint or in the plaintiff’s affidavit. Significantly, the plaintiff’s allegations are devoid of any indication that she was in New York during the time of the alleged communications with the defendants. Greenfader v Chicago Sch. of Professional Psychology, 2023 NY Slip Op 06513, Second Dept 12-20-23

Practice Point: It is not clear from the decision whether taking an online course in New York offered by a school in Illinois confers long-arm jurisdiction over the school. Granting the school’s motion to dismiss appears to be based upon the plaintiff’s failure to allege she was in New York when she took the online course.

 

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INFANT PLAINTIFF ASSUMED THE RISK OF FALLING BECAUSE OF PEBBLES AND WET GRASS ON THE SOCCER FIELD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined infant plaintiff assumed the risk of falling in a school pick-up soccer game. Plaintiff alleged he fell because of pebbles and wet grass on the playing field:

The infant plaintiff testified that he fell because of a combination of, among other things, pebbles on the field and wet and muddy grass. The infant plaintiff further testified that there were no puddles, and the grass was wet from the previous day’s rain and other students playing with water balloons on the field. However, neither the pebbles nor the wet grass described in this case presented a concealed or unreasonably increased risk beyond those inherent in the activity of outdoor soccer … , regardless of whether the wet grass was caused by rain or water balloons … . Furthermore, merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision … .   To hold otherwise would effectively prohibit schools from utilizing outdoor playing fields … . C.P.G. v Uniondale Sch. Dist., 2023 NY Slip Op 06512, Second Dept 12-20-23

Practice Point: Here the infant plaintiff assumed the risk of falling because of pebbles and wet grass on the soccer playing field.

 

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TEACHERS EMPLOYED AT STATE CORRECTIONAL FACILITIES WORKED FROM SEPTEMBER TO JUNE BUT WERE PAID AN ANNUAL SALARY; WHEN EXTRA SUMMER WORK WAS CANCELLED DUE TO COVID THEY APPLIED FOR UNEMPLOYMENT INSURANCE BENEFITS; BECAUSE THEY WERE NOT UNEMPLOYED THEY WERE NOT ENTITLED TO BENEFITS (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Egan. affirming the Unemployment Insurance Appeal Board, determined claimants, who worked as teachers at state correctional facilities from September through June but were paid an annual salary, were not entitled to unemployment insurance benefits for the additional summer employment which was not available due to COVID. The fact that the claimants could elect to either be paid every month or only during the school year was not determinative. The claimants had an “annual” salary and therefore were not unemployed during the summer:

Under state law, regular unemployment insurance benefits require total unemployment …, which is defined as “the total lack of any employment on any day” (Labor Law § 522 [emphasis added]). “Whether a claimant is totally unemployed and thereby entitled to receive unemployment insurance benefits is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence” … . In finding that claimants were not totally unemployed during the summer 2020 recess, the Board properly relied upon Civil Service Law § 136, which applies to teachers and instructors at state institutions, including those operated by DOCCS, and provides that the “annual salary” for those employees may be paid over 10 months or 12 months … . If they are required to work outside of the academic year, they must receive “additional compensation” beyond their annual salary, which, by definition, compensates them for the entire 12-month year including the summer recess … .

The fact that optional, additional work was not available over the summer of 2020, as it had been in prior years, does not change the analysis or conclusion that claimants remained employed over the summer recess, i.e., they were not totally unemployed … . Matter of Almindo (New York State Dept. of Corr. & Community Supervision–Commissioner of Labor), 2023 NY Slip Op 06424, 3rd Dept 12-14-23

Practice Point: Teachers who are paid an annual salary, even if paid September through June, are not unemployed during the summer. Therefore, if additional summer work becomes unavailable (due to COVID for example), the teachers are not entitled unemployment benefits for the summer months.

 

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PLAINTIFF STOOD UP FROM A DESK AND TRIPPED OVER THE BOTTOM DRAWER WHICH HAD PARTIALLY OPENED; THERE WERE QUESTIONS OF FACT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND WHETHER DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence action alleging plaintiff stood up from a desk and tripped on the bottom desk drawer should not have been dismissed. The defendant did not demonstrate the condition was open and obvious and did not demonstrate it did not have actual or constructive notice of the condition:

According to the plaintiff, she was sitting behind a desk and when she got up, she tripped on the bottom desk drawer which, unbeknownst to her, had become ajar. …

A condition is open and obvious if it is “readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . …

A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s accident … .  Cosme v New York City Dept. of Educ., 2023 NY Slip Op 06026, Second Dept 11-22-23

Practice Point: Whether a condition is open and obvious depends on the totality of the circumstances. Here plaintiff alleged she didn’t know the bottom drawer of her desk had opened and she tripped over it when she stood up from the desk. There was a question of fact whether the condition was open and obvious. The fact that the defendant did not demonstrate when the desk had last been inspected raised a question of fact about whether the defendant had constructive notice of the condition.

 

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