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YESHIVA UNIVERSITY NO LONGER HAS THE REQUISITE CONNECTION TO RELIGION AND THEREFORE IS NOT EXEMPT FROM THE DISCRIMINATION PROHIBITIONS IN THE NYC HUMAN RIGHTS LAW; THE PRIDE ALLIANCE WAS ENTITLED TO RECOGNITION AS AN OFFICIAL STUDENT ORGANIZATION (FIRST DEPT).

The First Department determined a student group (Pride Alliance) at Yeshiva University was entitled to summary judgment pursuant to the NYC Human Rights Law (City HRL)on its claims asserting gender, sexual orientation, and association discrimination. In addition Pride Alliance was entitled to a permanent injunction requiring Yeshiva to recognize the group as an official student organization. Essentially, Yeshiva argued the university was exempt from the requirements of the City HRL as a religious corporation or institution, but the university no longer had the requisite connection to religion: Yeshiva’s constitutional arguments (free exercise of religion, freedom of expression and association) were rejected:

Yeshiva was originally chartered in 1897 under the Membership Corporations Law as the Rabbi Isaac Elchanan Theological Seminary Association (RIETS), with the stated purpose to “promote the study of Talmud” and prepare Orthodox Jewish rabbis for ministry. Over several decades, the charter was amended to allow numerous secular degrees to be awarded and to change the name of the institution, while RIETS remained part of Yeshiva. In 1967, Yeshiva amended its charter to become incorporated under the Education Law. Two years later it amended the charter to drop Hebrew Literature and Religious Education degrees, since RIETS was being spun off as its own corporation offering those degrees, and to “clarify the corporate status of the University as a non-denominational institution of higher learning.” While Yeshiva is now comprised of three undergraduate colleges and seven graduate schools, RIETS remains a separate corporate entity housed on one of Yeshiva’s campuses. YU Pride Alliance v Yeshiva Univ., 2022 NY Slip Op 07175, First Dept 12-13-22

Practice Point: Yeshiva University was not entitled to exemption from the discrimination prohibitions in the NYC Human Rights Law because the university no longer has the requisite connection to religion. Therefore the “Pride Alliance” was entitled to recognition as an official student group.

 

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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHILE ATTENDING DEFENDANT’S SCHOOL; THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT HIRING, NEGLIGENT SUPERVISION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this Child Victims Act action alleging sexual abuse by a priest while plaintiff was attending defendant’s parish school stated causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress. “The complaint alleged .* * * the priest … was an employee and/or an agent of the defendant, that the defendant had knowledge that the priest was abusing students, including the plaintiff, or that he had the propensity to abuse, and that the sexual abuse of the plaintiff occurred during school activities and during times at which the plaintiff was under the defendant’s supervision and care, custody, and control.”:

An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that “the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Causes of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity … .

… [A] school “has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … .

… [T]reating the allegations in the complaint as true, including that the defendant had knowledge of the priest’s sexual abuse of the plaintiff and other children and concealed that abuse, and giving the plaintiff the benefit of every possible favorable inference, the alleged conduct would be sufficiently outrageous in character and extreme in degree to set forth a cause of action for intentional infliction of emotional distress … . Novak v Sisters of the Heart of Mary, 2022 NY Slip Op 06814, Second Dept 11-30-22

Practice Point: In an action pursuant to the Child Victims Act, plaintiff alleged he was sexually abused by a priest while attending defendant’s school. The complaint alleged defendant knew about the abuse. The complaint causes of action for negligent hiring, negligent supervision and intentional infliction of emotional distress.

 

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RESPONDENT STATE COLLEGE WITHHELD EXCULPATORY EVIDENCE IN THIS COLLEGE MISCONDUCT PROCEEDING WHICH RESULTED IN PETITIONER-STUDENT’S EXPULSION; THE EXPULSION PENALTY WAS VACATED AND THE STUDENT WAS REINSTATED IN GOOD STANDING (FIRST DEPT). ​

The First Department, reversing the expulsion of petitioner-student and reinstating the student in good standing, determined the respondent state college had withheld exculpatory evidence which indicated petitioner did not carve a racial epithet on an elevator door. Two students claimed to have seen petitioner carve the epithet. Another student sent an email stating he had seen the epithet on the door before the students arrived for the semester. That email was never disclosed to the petitioner:

Article III of Section 4 of respondent’s Code of Conduct enumerates the due process rights of students charged with violations. In addition to the right to a fair hearing, a charged student “has the right to copies of written reports pertinent to the case . . .” Respondent’s failure to turn over exculpatory evidence in its possession prior to the hearing violated its own policies and procedures, thereby violating petitioner’s due process rights … . Now, in hindsight, it cannot be said that petitioner received a fair hearing where evidence tending to prove his innocence was withheld.

Accordingly, after our independent review of the record as a whole, we now find that this exculpatory evidence, the extensive alibi evidence as well as other objective evidence of petitioner’s innocence render the charges unsupportable as a matter of law thus warranting vacatur of the expulsion penalty, expungement of all references to the underlying charges contained in petitioner’s academic record and his reinstatement as a student in good standing … . Matter of Mozdziak v State Univ. of N.Y. Mar. Coll., 2022 NY Slip Op 06759, First Dept 11-29-22

Practice Point: In this misconduct proceeding in a state college, the student was entitled to due process. The college’s failure to turn over exculpatory evidence required vacation of the expulsion penalty and reinstatement of the student in good standing.

 

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HERE PLAINTIFF BROUGHT SUIT AGAINST A SCHOOL DISTRICT PURSUANT TO THE CHILD VICTIMS ACT ALLEGING THE SCHOOL DISTRICT NEGLIGENTLY FAILED TO PROTECT HER FROM SEXUAL ASSAULT BY A FELLOW STUDENT; THE FACT THAT THE STUDENT COULD NOT BE CRIMINALLY PROSECUTED FOR THE ASSAULT BECAUSE OF HIS AGE DID NOT PRECLUDE REVIVAL OF THE CAUSES OF ACTION AGAINST THE SCHOOL DISTRICT; IN OTHER WORDS THE CHILD VICTIMS ACT APPLIES TO REVIVE NEGLIGENCE CAUSES OF ACTION EVEN IF THE UNDERLYING SEXUAL ASSAULT COULD NOT HAVE BEEN PROSECUTED (SECOND DEPT).

The Second Department determined negligent supervision and negligent hiring causes of action against a school district, pursuant to the Child Victims Act (CVA), alleging the failure to protect plaintiff from sexual abuse by a fellow minor student, properly survived motions to dismiss. The case raised a question of first impression: Does the CVA revive causes of action which are based upon the actions of a minor who could not be criminally prosecuted for sexual offenses because of his age? The answer is “yes:”

… [W]e are presented with an issue of first impression as to whether CPLR 214-g may be used to revive civil claims and causes of action asserted against a school district that are based on alleged acts of sexual assault committed by a minor who could not have been subjected to criminal liability at the time the alleged acts of sexual assault occurred. Resolution of this issue requires the Court to determine the meaning of the phrase “conduct which would constitute a sexual offense as defined in [Penal Law article 130]” as used in CPLR 214-g, and in particular, whether that phrase is limited to conduct that would subject the person who committed the acts of sexual assault to criminal liability. * * *

… [W]e find that the plain meaning of the phrase “conduct which would constitute a sexual offense as defined in [Penal Law article 130]” as used in CPLR 214-g refers to the conduct described in the enumerated provisions of the Penal Law, and is not limited to those situations in which the conduct would subject the actor to criminal liability … . Anonymous v Castagnola, 2022 NY Slip Op 06682, Second Dept 11-23-22

Practice Point: Here, presenting a question of first impression, negligent supervision and negligent hiring causes of action against a school district alleging the failure to protect the plaintiff from sexual assault by a fellow minor student were deemed revived by the Child Victims Act, despite the fact that the student who assaulted plaintiff could not have been criminally prosecuted because of his age.

 

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REDUCTION OF PETITIONER-SCHOOL-DISTRICT EMPLOYEE’S RETIREMENT HEALTH BENEFITS BELOW THE LEVEL AFFORDED ACTIVE EMPLOYEES VIOLATES INSURANCE LAW 4235 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the school district’s reduction of petitioner-employee’s (Perrotta’s) retirement health benefits below the level afforded active employees violated the Insurance Law:

The moratorium law [Insurance Law 4235] sets “‘a minimum baseline or “floor” for retiree health benefits'” which is “‘measured by the health insurance benefits received by active employees . . . In other words, the moratorium [law] does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees'” … . Thus, a school district may not diminish retirees’ health insurance benefits unless it makes “a corresponding diminution in the health insurance benefits or contributions of active employees” … . The purpose of the moratorium law is to protect the rights of retirees who “‘are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired'” … .

Here, since Perrotta submitted evidence establishing that the district diminished the health insurance contribution rate for certain retirees, and the district failed to proffer evidence that it made a corresponding diminution in the health insurance benefits or contributions for active employees, its determination violated the moratorium law. … Supreme Court should have granted the petition and annulled the district’s determination … . Matter of Perrotta v Syosset Cent. Sch. Dist., 2022 NY Slip Op 06704, Second Dept 11-23-22

Practice Point: Here the petitioner, a retired school district employee, successfully contested the reduction of her retirement health benefits below the level afforded active employees as a violation of Insurance Law 4235.

 

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THE PLAINTIFF-STUDENT FOOTBALL PLAYER DID NOT ASSUME THE RISK OF INJURY IN A FOOTBALL-RELATED WEIGHT-LIFTING SESSION; THE RISK OF A WEIGHT-LIFTING INJURY IS NOT INHERENT IN THE GAME OF FOOTBALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-student, a high school sophomore varsity football player, did not assume the risk of injury during a weight-lifting training-session when he voluntarily agreed to play football. The decision includes a good explanation of the assumption-of-the-risk doctrine:

Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sport or recreational activity is deemed to consent to the risks inherent in that sport, thereby negating any duty on a defendant’s part to safeguard the plaintiff from those risks … . While the absolute defense of implied assumption of risk, which was abolished by the enactment of CPLR 1411 in 1975, barred recovery by a plaintiff who was aware of the risks of engaging in a specific act and engaged in that specific act nonetheless …, the separate and distinct doctrine of primary assumption of risk posits that the risk is assumed by virtue of the plaintiff’s voluntary participation in a sporting event, which indicates the plaintiff’s consent to the risks that are inherent in that sport. Although a plaintiff’s knowledge of the risk involved in the particular act that results in injury remains relevant, under CPLR 1411, in assessing his or her comparative fault, in the context of primary assumption of risk, “knowledge plays a role but inherency is the sine qua non” … . * * *

Unlike a plaintiff subject to the pre-1975 defense of implied assumption of risk, the infant plaintiff in this case did not assume a risk at the moment he attempted to lift the 295-pound bar. Rather, his assumption of risk occurred when he joined the football team …, and the risks he assumed were limited to those that are inherent in the sport of football. The risk of losing control of a 295-pound bar is not a risk inherent in the sport of football … . Annitto v Smithtown Cent. Sch. Dist., 2022 NY Slip Op 06098, Second Dept 11-2-22

Practice Point: This decision clarifies the boundaries of the assumption-of-the-risk as it applies to school sports. When the plaintiff-student joined the football team, he assumed the risks inherent in the game of football. Here, those risks were not deemed to extend to weight-training, even though the weight-training was football-related. The student’s negligent supervision action stemming from his weight-training injury was not precluded by the assumption-of-risk doctrine.

 

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WHETHER A PRIVATE COLLEGE ACTED IRRATIONALLY OR ARBITRARILY AND CAPRICIOUSLY IN ELIMINATING FACULTY POSITIONS IN RESPONSE TO A BUDGET SHORTFALL IS PROPERLY DETERMINED IN AN ARTICLE 78 PROCEEDING; HERE THE COLLEGE FOLLOWED THE RELEVANT RULES IN THE COLLEGE MANUAL; SUPREME COURT SHOULD NOT HAVE RULED THE COLLEGE ACTED ARBITRARILY AND CAPRICIOUSLY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent private college followed the relevant provisions of the college manual in determining what programs and faculty positions to eliminate in response to a budget shortfall. Petitioners, members of the music department faculty whose positions were eliminated, did not demonstrate the respondents’ decisions were irrational or arbitrary and capricious:

A private college, “having accepted a charter and having thus become a quasi-governmental body, can be compelled in a[ CPLR] article 78 proceeding to fulfill not only obligations imposed upon them by State or municipal statutes but also those imposed by their internal rules” …  Thus, a CPLR article 78 proceeding is the appropriate vehicle for judicial review of matters involving a determination of a professor’s benefits and privileges of his or her academic tenure … .

As “the administrative decisions of educational institutions involve the exercise of highly specialized professional judgment and these institutions are, for the most part, better suited to make relatively final decisions concerning wholly internal matters” … . Deference should be accorded to a college’s determination, “and judicial review is circumscribed to whether the [college] failed to substantially comply with its internal rules and whether its decision was arbitrary [and] capricious or made in bad faith … . ….

… [T]he record confirms … there were no procedural rule violations. …

… [T]he record confirms that Supreme Court did not give appropriate deference to respondents’ interpretation of the termination preference — as set forth in chapter 2, § E (1) (1.6) of the manual …  — and that Supreme Court improperly concluded that respondents’ determination was arbitrary and capricious.  Matter of Hansbrough v College of St. Rose, 2022 NY Slip Op 05915, Third Dept 10-20-22

Practice Point: A court’s Article 78 review of a private college’s elimination of faculty positions in response to a budget shortfall is limited to a determination whether the college acted irrationally or arbitrarily and capriciously. Here the record indicated the college followed the relevant rules in the college manual, i.e.,  the college acted rationally.

 

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NYC DEPARTMENT OF EDUCATION’S (DOE’S) DENIALS OF PETITIONERS’ APPLICATIONS FOR ADMISSION TO THE CITY’S SPECIALIZED HIGH SCHOOLS (SHS’S) WERE NOT ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Clark, determined the NYC Department of Education’s (DOE’s) denials of petitioners’ applications for admission to NYC’s Specialized High Schools (SHS’s) were not arbitrary and capricious. The opinion includes a detailed history of the SHS’s and detailed explanations of the criteria for admission of students deemed to be disadvantaged within meaning of the SHS’s Discovery program. The petitioners were not disadvantaged students. It is difficult to discern the precise nature of the petitioners’ claims from the opinion, but it appears petitioners were questioning the propriety of the implementation of the Discovery program for disadvantaged students. Matter of C.K. v Tahoe, 2022 NY Slip Op 05899, Third Dept 10-20-22

Practice Point: In this Article 78 proceeding the petitioners were students who were denied admission to NYC’s Specialized High Schools (SHS’s), The petitioners, who were not disadvantaged within the meaning the SHS’s Discovery program, apparently questioned the propriety of the implementation of the Discovery program for disadvantaged students. The Third Department held that the Department of Education’s denials of the petitioners’ applications for admission were not arbitrary and capricious.

 

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IN THIS CHILD VICTIMS ACT SUIT AGAINST DEFENDANT SCHOOL DISTRICT ALLEGING THE ABUSE OF PLAINTIFF-STUDENT BY A TEACHER AND HER STEPFATHER IN THE 1970’S, THE FAILURE-TO-REPORT-ABUSE CAUSES OF ACTION PURSUANT TO THE SOCIAL SERVICES LAW SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act lawsuit, determined the causes of action alleging the defendant school district failed to report the abuse of plaintiff-student by a teacher (Bova) pursuant to the Social Services Law should have been dismissed:

Social Services Law § 413, which went into effect on September 1, 1973, provides that certain school officials “are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child” … . Social Services Law § 420(2) provides that “[a]ny person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.” For purposes of Social Services Law § 413, an “abused child” means “a child under eighteen years of age and who is defined as an abused child by the family court act” … . Family Court Act § 1012(e) defines an “abused child” as one harmed by a “parent or other person legally responsible for his [or her] care.” … .

… Supreme Court should have granted that branch of the District’s motion which was to dismiss the ninth cause of action, alleging that it failed to report suspected child abuse committed by Bova, because Bova was not a “person legally responsible” for the plaintiff’s care … . The court also should have granted that branch of the District’s motion which was to dismiss the tenth cause of action, alleging that it failed to report suspected child abuse committed by the plaintiff’s stepfather, insofar as asserted against it. The complaint does not contain any allegation that the District received information about abuse committed by the plaintiff’s stepfather at any time after the end of the 1972-1973 school year in June 1973, which was months prior to September 1, 1973, the date that Social Services Law § 413 went into effect … . Finally, …punitive damages are not available against the District … . Hanson v Hicksville Union Free Sch. Dist., 2022 NY Slip Op 05519, Second Dept 10-5-22

Practice Point: In this Child Victims Act suit against defendant school district alleging abuse of plaintiff-student by a teacher and her stepfather in the 1970’s, the Social Services Law causes of action alleging the district failed to report the abuse were dismissed because: (1) the teacher was not legally responsible for plaintiff’s care; and (2) the Social Services Law requiring the school to report abuse by the stepfather was not in effect at the time.

 

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PLAINTIFF, A SCHOOL PSYCHOLOGIST, WAS ASSAULTED BY AN AUTISTIC STUDENT; THE NEGLIGENT-PARENTAL-SUPERVISION CAUSE OF ACTION AGAINST THE STUDENT’S PARENTS SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the “negligent parental supervision” cause of action against the parents of an autistic child who assaulted plaintiff school psychologist should not have been dismissed. In addition, the parents did not demonstrate their son was, due to his disability, incapable of being liable for negligence or assault. The facts are not discussed:

The plaintiff * * * was assaulted by the defendant David George (hereinafter David), an autistic student with an IQ of 41, who was almost 14 years old at the time. * * *

“While, as a general rule, parents are not liable for the torts of their child, a parent may be held liable, inter alia, where the parent[s] negligence consists entirely of his [or her] failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child’s propensity toward such conduct'” … . Thus, a parent moving for summary judgment dismissing a cause of action alleging negligent supervision based on the physical tortious conduct of the parent’s child, must establish, prima facie, that the parent was not aware that, prior to the subject incident, his or her child engaged in violent or vicious conduct that would endanger a third party … . …

The defendants’ contention that the branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against David, on the ground that due to his developmental disability he was “non sui juris and incapable of being liable for negligence” or assault …, is without merit. Levine v George, 2022 NY Slip Op 05032, Second Dept 8-24-22

Practice Point: Parents are usually not responsible for the torts of their child. In this case the autistic child assaulted plaintiff school psychologist. The facts were not discussed, But the appellate court determined the “negligent parental supervision” cause of action should not have been dismissed.

 

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