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A TEACHER IS NOT A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A STUDENT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW; THEREFORE A SCHOOL DISTRICT IS NOT OBLIGATED TO REPORT SUSPECTED CHILD ABUSE BY A TEACHER (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the teacher (Grunwald) accused of sexual abuse of a student in this Child Victims Act suit was not a person legally responsible for the child’s care within the meaning of the Social Services Law. Therefore the defendant school district did not have a duty to report suspected abuse by the teacher:

… [P]laintiff alleged that Pioneer violated its statutory reporting duties under Social Services Law former § 413 by failing to report the abuse of plaintiff by Grunwald. Social Services Law former § 413, however, applied only where there was “reasonable cause to suspect that a child . . . [was] an abused or maltreated child” … . The Social Services Law incorporated the definition of “abused child” in the Family Court Act … , which in turn defined that term, as relevant here, as a child harmed by a “parent or other person legally responsible for [the child’s] care” … .

Under Family Court Act article 10, however, the definition “should not be construed to include [abuse by] persons who assume fleeting or temporary care of a child such as . . . those persons who provide extended daily care of children in institutional settings, such as teachers” … . Inasmuch as Grunwald, based on the allegations in the complaint, could not be the subject of a report for purposes of Social Services Law former § 413, Pioneer was not required to report any suspected abuse by him … . Solly v Pioneer Cent. Sch. Dist., 2023 NY Slip Op 05814, Fourth Dept 11-15-23

Practice Point: The Social Services Law obligates a person legally responsible for the care of a child to report suspected child abuse. Because a teacher is not a person legally responsible for the care of a student, the school district is not subject to that reporting requirement.

 

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PLAINTIFF-STUDENT’S FINGER WAS CAUGHT IN A DOOR SHUT BY ANOTHER STUDENT ACTING AS A LUNCH MONITOR; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE SCHOOL PROVIDED ADEQUATE SUPERVISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-student’s negligent supervision action against the Department of Education (DOE) should not have been dismissed. Plaintiff’s finger was caught in a door as the door was shut by another student who was acting as a lunch monitor. Plaintiff and other students banged on the door to get someone to open it, but its wasn’t opened for three minutes. The tip of plaintiff’s finger was severed:

… [T]he defendants failed to establish, prima facie, that the DOE adequately supervised the infant plaintiff … , or that its alleged lack of adequate supervision was not a proximate cause of the accident … . Significantly, the defendants’ submissions demonstrated that there was no adult monitoring the area where the accident took place and that, at the time of the accident, an assistant principal in the cafeteria was in the midst of calling for more assistance. Among the triable issues of fact presented by the defendants’ submissions were whether there was an appropriate level of supervision for the seventh-grade students under the circumstances … , and whether the school played a role in empowering or training the student lunch monitor with respect to closing the door to the kitchen.

Although there are certain accidents that occur in such a short span of time “that even the most intense supervision could not have prevented [them and] any lack of supervision is not the proximate cause of the injury” … , this is not one of those cases, especially in light of the fact that the infant plaintiff’s finger remained pinched by the closed door for approximately three minutes while he and his fellow students banged on the door. Fleming v City of New York, 2023 NY Slip Op 05714, Second Dept 11-15-23

Practice Point: The accident–plaintiff-student’s finger was caught (for three minutes) in a door shut by another student who was acting as a lunch monitor–raised a question whether the level of supervision by the school was adequate.

 

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THE UNIVERSITY REVIEW BOARD’S FINDING THAT PETITIONER VIOLATED THE STUDENT CODE BY ENGAGING IN SEXUAL MISCONDUCT REVERSED, VIOLATIONS DISMISSED, RECORD EXPUNGED; THERE WAS A DISSENT (SECOND DEPT). ​

The Second Department, over a dissent, reversing the University Review Board,  determined it was not demonstrated that petitioner, a student at Stony Brook University, violated the Student Code by engaging in sexual misconduct. The only issue before the Board and the court was whether S.G., a fellow student, consented to sex. The facts are far to detailed to fairly summarize here. The majority concluded the evidence supported S.G.’s “affirmative consent” to sex. The Student Code violations were dismissed and all references to the Board’s finding are to be expunged from the petitioner’s academic record. Matter of P. C. v Stony Brook Univ., 2023 NY Slip Op 05604, Second Dept 11-8-23

 

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THE PROCEDURE SUNY BUFFALO USED TO QUESTION PARTIES AND WITNESSES ABOUT ALLEGATIONS OF PETITONER-STUDENT’S SEXUAL MISCONDUCT (SUBMITTED WRITTEN QUESTIONS) VIOLATED THE SCHOOL’S TITLE IX POLICY (LIVE CROSS-EXAMINATION); THE SCHOOL’S DETERMINATION WAS ANNULLED AND THE RECORD WAS EXPUNGED (FOURTH DEPT).

The Fourth Department, reversing the State University of New York at Buffalo (SUNY Buffalo) (respondent), held that the determination finding petitioner, a former student, violated the prohibition against sexual violence in the student code of conduct was arbitrary and capricious. The determination was annulled and the record expunged:

… [R]espondent departed from its own published rules and guidelines by adjudicating the alleged misconduct under the Code of Conduct rather than its Title IX Grievance Policy (Title IX Policy). Respondent’s Title IX Policy was established pursuant to 34 CFR 106.44 (b) (1), which requires as relevant here that respondent, in response to a formal complaint, follow a grievance process that complies with 34 CFR 106.45 if it seeks to impose disciplinary sanctions against someone accused of “sexual harassment,” a term that encompasses petitioner’s alleged misconduct … . Although respondent was permitted to dismiss the formal Title IX complaint against petitioner after his withdrawal from the university (see id. § 106.45 [b] [3] [ii]), respondent was nevertheless bound to apply the grievance procedure set forth in § 106.45 if it sought to impose a disciplinary sanction for the alleged misconduct … .

… [T]he questioning procedure provided at the Code of Conduct hearing substantially departed from the questioning procedure set forth in the Title IX Policy, and that the departure rendered respondent’s disciplinary determination arbitrary and capricious … . Respondent’s Title IX Policy, which codifies the regulatory requirements in 34 CFR 106.45 (b) (6) (i), entitles “[e]ach party’s advisor [to] conduct live cross-examination of the other party or parties and witnesses . . . in real time.” However, respondent made the disciplinary determination based on its Code of Conduct questioning procedure, which prohibits live cross-examination and instead limits the parties to submitting written questions to hearing officers in advance of the hearing. “Inasmuch as the United States Supreme Court has recognized that the right to ask questions of an accuser or witness is a significant and critical right” … , and inasmuch as the application of the procedure set forth in the Code of Conduct significantly impeded that right as outlined in the Title IX Policy, we conclude that respondent failed to substantially adhere to its own published rules and guidelines. Matter of Doe 1 v State Univ. of N.Y. at Buffalo, 2023 NY Slip Op 04838, Fourth Dept 9-29-23

Practice Point: SUNY Buffalo’s Title IX policy required live cross-examination of parties and witnesses in a sexual harassment investigation. The school followed its code of conduct which limits the questioning to written questions submitted to the hearing officers. The Title IX policy should have been followed. The determination was annulled and the record was expunged.

 

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CONFLICTING EVIDENCE ABOUT WHETHER DEFENDANT WAS MADE AWARE OF THE DANGEROUS CONDITION PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Education (DOE) did not demonstrate a lack of constructive knowledge of the condition of a cart used by plaintiff teacher to move materials out of a classroom. The cart stopped suddenly and the plaintiff’s foot was injured. There was conflicting evidence about whether plaintiff and others had made the DOE aware of the defective condition of the cart:

… [T]he defendants failed to establish, prima facie, that the DOE did not have constructive notice of the allegedly dangerous condition of the cart that caused the plaintiff’s injuries. In support of their motion, the defendants submitted, among other things, a transcript of the plaintiff’s deposition testimony. At her deposition, the plaintiff testified that in September 2015, approximately five months before she was injured, she complained about the condition of the cart to the school principal. The plaintiff further testified that in January 2016, approximately one month before the accident, her supervisor, an assistant principal at the school, observed the plaintiff “struggling” to use the cart, which “wasn’t working properly.” According to the plaintiff, her supervisor advised that she would speak with the principal about the issue. The DOE also submitted a transcript of the deposition testimony of the plaintiff’s supervisor, who testified that prior to the accident, she did not recall the plaintiff making any complaints specifically about the condition of the cart. This conflicting testimony raised triable issues of fact as to credibility and whether the DOE had constructive notice of the allegedly dangerous condition of the cart … . Rossi v City of New York, 2023 NY Slip Op 04607, Second Dept 9-13-23

Practice Point: Plaintiff, a teacher, alleged she was injured when a cart used to move materials stopped suddenly. There was conflicting evidence whether defendant had been made aware of the defective condition of the cart. Therefore defendant was not entitled to summary judgment.

 

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A TEACHER MAY NOT ACCUMULATE CREDIT TOWARD TENURE IN ONE SCHOOL DISTRICT FOR WORK AS A SUBSTITUTE TEACHER IN ANOTHER DISTRICT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined a teacher may not accumulate credit towards tenure from working as a substitute teacher in a different district:

The narrow issue presented on this appeal, apparently one of first impression for an appellate court in this State, is whether a teacher may accumulate credit towards tenure, also known as “Jarema credit,” pursuant to Education Law § 3012, for time spent teaching as a regular substitute teacher in a district other than the district in which the teacher is seeking tenure. … [W]e conclude that a teacher is only entitled to “Jarema credit” for regular substitute service if said service was completed in the district in which the teacher is seeking tenure. Matter of DeNigris v Smithtown Cent. Sch. Dist., 2023 NY Slip Op 03783, Second Dept 7-12-23

Practice Point: A teacher may not accumulate credit toward tenure in one school district for time working as a substitute teacher in another district.

 

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DEFENDANT SCHOOL SUPERINTENDENT’S DISCUSSION OF PLAINTIFF CROSS-COUNTY COACH’S TERMINATION WITH STUDENTS WAS ABSOLUTELY PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant school superintendent’s (Brantner’s) statements to students about plaintiff cross-country coach (who was terminated) were absolutely privileged:

“The absolute privilege defense affords complete immunity from liability for defamation to an official [who] is a principal executive of State or local government . . . with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties” … . Here, plaintiff does not dispute that Brantner, as superintendent, is a government official to whom the absolute privilege would apply … . The question presented is whether Brantner was acting within the scope of her duties as superintendent when she met with members of the cross-country team in a classroom before school to discuss plaintiff’s termination.

We conclude that … Brantner’s statements were made during the course of the performance of her duties as a school superintendent and were about matters within the ambit of those responsibilities.  Brantner testified at her deposition that the school board asked her to speak with the students, who had appeared at school board meetings demanding to know why plaintiff had been fired …  In any event, even assuming, arguendo, that Brantner decided on her own to meet with the students, we conclude that she was acting within the scope of her duties when making the statements. Although Education Law § 1711 … does not specifically authorize superintendents to meet with students, the statute is not an exhaustive list delineating every action that a school superintendent is permitted to engage in, and the absence from the statute of a reference to a particular category of action does not mean that it is unauthorized. In our view, a school superintendent does not act ultra vires when speaking to students in a school setting about a matter related to their education or extracurricular activities. Panek v Brantner, 2023 NY Slip Op 03636, Fourth Dept 6-30-23

Practice Point: Because the defendant school superintendent was acting within the scope of her duties when she discussed plaintiff cross-country coach’s termination with students, her statements were absolutely privileged and will not support a defamation action.

 

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THE CAUSES OF ACTION FOR A STIGMA-PLUS 43 USC 1983 VIOLATION AND DEFAMATION SHOULD HAVE BEEN DISMISSED; THE CAUSES OF ACTION WERE BASED UPON A STATEMENT BY THE SCHOOL DISTRICT ACCUSING PLAINTIFF OF DISREGARDING COVID POLICY AND ENDANGERING STUDENTS; PLAINTIFF DID NOT SUFFER ECONOMIC HARM AND THE STATEMENT WAS PRIVILEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the stigma-plus 42 USC 1983 cause of action and the defamation cause of action should have been dismissed. The action was brought by plaintiff, a school football coach, based upon a letter circulated by the school district accusing plaintiff of disregarding COVID precautions and recklessly exposing students to the virus. Initially the district was not going to renew plaintiff’s contract but ultimately plaintiff was not terminated:

A stigma-plus cause of action requires a plaintiff to establish “(1) the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiff’s status or rights” … . Because a defamatory statement, standing alone, does not amount to a constitutional deprivation, “the ‘plus’ imposed by the defendant[s] must be  specific and adverse action clearly restricting the plaintiff’s liberty—for example, the loss of employment” … . * * *

… [T]he complaint alleges that the District superintendent, whose role included termination of employees like plaintiff, circulated the allegedly defamatory letter. A school superintendent is a principal executive whose statements may be protected by absolute privilege … . Further, based on the allegations in the complaint, we conclude that “the [superintendent] was acting wholly within the scope of his duties” when making the relevant statements  … . Sindoni v Board of Educ. of Skaneateles Cent. Sch. Dist., 2023 NY Slip Op 03102, Fourth Dept 6-9-23

Practice Point: Here a statement that plaintiff school football coach disregarded COVID policy and endangered students did not support the stigma-plus 42 USC 1983 cause of action because plaintiff did not suffer economic harm and did not support the defamation cause of action because the statement was privileged.

 

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A COURT MUST ACCEPT AN ARBITRATOR’S INTERPRETATION OF CONFLICTING EVIDENCE; BUT THE TERMINATION OF THE TEACHER, WHO HAD AN UNBLEMISHED RECORD, FOR INAPPROPRIATELY RESTRAINING A FEMALE STUDENT, SHOCKED ONE’S SENSE OF FAIRNESS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the arbitrator’s interpretation of conflicting evidence must be accepted, but termination of the teacher based on the evidence was not warranted. It was alleged the petitioner-teacher inappropriately restrained a female student who was trying to get past him:

“Where, as here, the obligation to arbitrate arises through a statutory mandate (see Education Law § 3020-a), the determination of the arbitrator is subject to ‘closer judicial scrutiny’ under CPLR 7511(b) than it would otherwise receive” … . “An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” … .

Here, there was a rational basis and evidentiary support for the finding that the petitioner committed the conduct with which he was charged by inappropriately restraining a female student who was trying to get past him. Although a video of the incident, which was admitted into evidence at the hearing, could be interpreted in more than one way, this Court must “accept the arbitrator’s credibility determinations, even where there is conflicting evidence and room for choice exists” … .

However, in light of the petitioner’s otherwise unblemished record of approximately 19 years as a teacher with the respondent, the penalty of termination of employment was so disproportionate to the offense as to be shocking to one’s sense of fairness … . Matter of O’Brien v Yonkers City Sch. Dist., 2023 NY Slip Op 03011, Second Dept 6-7-23

Practice Point: In this arbitration pursuant to the Education Law, the court was required to accept the arbitrator’s interpretation of conflicting evidence. But termination of the teacher for inappropriately restraining a female student who was trying to get past him shocked one’s sense of fairness.

 

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THE COURT OF APPEALS UPHELD THE VIABILITY OF THE ASSUMPTION OF THE RISK DOCTRINE AS IT APPLIES TO SCHOOL SPORTS; AN EXTENSIVE DISSENT ARGUED THE DOCTRINE SHOULD BE ABANDONED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over two dissenting opinions, one of which argued the implied assumption of risk doctrine should be abandoned, determined the dismissal of one of the school-sports-assumption-of-risk cases before it (Stecky) should be affirmed and the dismissal of the other (Grady) should be reversed because it raised unresolved questions of fact:

In Secky, the primary assumption of risk doctrine applies, and we affirm the Appellate Division order granting defendants’ motion for summary judgment. Plaintiff, who had played basketball at the highest amateur student level, was injured during a drill in which the players competed to retrieve a rebound. Plaintiff’s coach had explained that the boundary lines of the court would not apply during the drill and that only major fouls would be called. At the time of the drill, bleachers stationed near the court were retracted. Plaintiff was injured when, pursuing a loose ball from the top of the key towards the bleachers, another player collided with him, causing plaintiff to fall into the bleachers and sustain an injury to his right shoulder. Plaintiff, through his mother, sued the coach and the school district, and defendants moved for summary judgment. * * *

… [P]laintiff’s injury is one inherent in the sport of basketball and so he assumed the risk of the injury he sustained. …

In Grady, by contrast, material issues of fact remain to be resolved by a jury. Plaintiff, a senior on the Chenango Valley High School varsity baseball team, was injured during his participation in a fast-moving, intricate drill. The drill involved two coaches hitting balls to players stationed in the infield, with one coach hitting to the third baseman, who would then throw to first base, while another coach hit to the shortstop, who would throw to the second baseman who would, in turn, throw to a player at “short first base,” positioned a few feet from regulation first base. Because the drill required baseballs from two parts of the infield to be thrown to two players in the same area by first base, the coaches had positioned a protective screen, measuring seven by seven, between the regulation first baseman and the short first baseman. Plaintiff, in the group of players assigned to first base, was injured when an errant ball, intended for the short first baseman, bypassed the short first baseman and the protective screen and hit him on the right side of his face, causing serious injury to his eye including significant vision loss. …

… [P]laintiff has raised triable questions of fact regarding whether the drill, as conducted here and with the use of the seven-by-seven-foot screen, “was unique and created a dangerous condition over and above the usual dangers that are inherent” in baseball … , and whether plaintiff’s awareness of the risks inherent in both the game of baseball and the practices that are a necessary part of participation in organized sports encompassed the risks arising from involvement in the drill performed here. Grady v Chenango Val. Cent. Sch. Dist., 2023 NY Slip Op 02142, CtApp 4-27-23

Practice Point: The majority rejected the dissenter’s argument that the assumption of risk doctrine should be abandoned.

 

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