Education-School Law – Page 7 – New York Appellate Digest

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.

December 20, 2023

Administrative Law, Education-School Law, Employment Law, Unemployment Insurance

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.

December 14, 2023

Education-School Law, Evidence, Negligence

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.

November 22, 2023

Education-School Law, Negligence, Social Services Law

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.

November 17, 2023

Education-School Law, Negligence

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.

November 15, 2023

Administrative Law, Education-School Law

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

November 8, 2023

Administrative Law, Education-School Law

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.

September 29, 2023

Education-School Law, Evidence, Negligence

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.

September 13, 2023

Education-School Law, Employment Law

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.

July 12, 2023

Defamation, Education-School Law, Employment Law

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.

June 30, 2023