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THE SCHOOL DISTRICT DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER IT PROPERLY EVALUATED THE TEACHER’S BACKGROUND BEFORE HIRING HER AND WHETHER IT HAD CONSTRUCTIVE KNOWLEDGE OF THE TEACHER’S ALLEGED ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the defendant school district did not demonstrate it took adequate measures to the evaluate the teacher’s background and did not demonstrate it did not have constructive notice of the teacher’s alleged sexual abuse of plaintiff student:

… [T]he defendants failed to establish, prima facie, that the School District was not negligent with respect to the hiring of the teacher. The defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the School District took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired … .

… [T]he defendants failed to establish, prima facie, that the School District lacked constructive notice of the teacher’s abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred between 50 and 100 times over the course of two school years, inter alia, in a classroom and the school parking lot during school hours, the defendants did not eliminate triable issues of fact as to whether the School District should have known of the abuse … . The defendants similarly failed to demonstrate, prima facie, that the School District’s supervision of both the teacher and the plaintiff was not negligent given that, among other things, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent … . Brauner v Locust Val. Cent. Sch. Dist., 2025 NY Slip Op 00418, Second Dept 1-29-25

Practice Point: Here in this Child Victims Act case the school district did not demonstrate it properly evaluated the teacher’s background before hiring her and did not demonstrate it did not have constructive notice of the teachers’ alleged abuse of plaintiff student which allegedly occurred up to 100 times in a classroom and the school parking lot.

 

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PLAINTIFF POLICE OFFICER WAS PARTICIPATING IN A TRAINING SESSION WHEN HE WAS BITTEN BY A POLICE DOG; THE TRAINING WAS A GOVERNMENTAL FUNCTION; THEREFORE THE MUNICIPALITY MUST HAVE OWED PLAINTIFF A SPECIAL DUTY TO BE LIABLE, NOT THE CASE HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality (City of Middletown) did not owe a special duty to plaintiff police officer, who was bitten by a police dog during training: The dog handler, Officer McDonald (a City of Middletown police officer), and plaintiff were participants in training sessions conducted by the NYS Homeland Security and Emergency Services when the unleased dog bit plaintiff:

As part of the training, the police dogs were off-leash. The plaintiff, who was participating in a different training event in a different building, entered the building where the explosives detection training exercise was being held and was still in progress when he was bitten by Officer McDonald’s police dog.

When a negligence cause of action is asserted against a municipality, and the municipality was exercising a governmental function, a municipality may not be held liable unless it owed a special duty to the injured party … . Such a special duty can arise, as relevant here, where “the municipality took positive control of a known and dangerous safety condition” … . Here, the defendants established, prima facie, that they did not owe a special duty to the plaintiff. There was no evidence that Officer McDonald [the dog handler] took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries … . The defendants established that Officer McDonald was an attendee at a training program conducted by the New York State Homeland Security and Emergency Services at a New York State facility, that he merely participated in the training exercise, and that he took direction from the NYPD canine instructor. Mahar v McDonald, 2025 NY Slip Op 00315, Second Dept 1-22-25

Practice Point: Here the police dog handler did not have control of the unleashed dog when it bit plaintiff. The dog and the handler were participating in an explosive-detection training session conducted by a third party. Because the dog handler had not taken control of a known and dangerous safety condition (the dog) at the time plaintiff was injured, the dog handler did not owe plaintiff a special duty, a prerequisite to municipal liability.

 

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THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide:

… [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing the causes of action alleging negligence and negligent supervision and retention insofar as asserted against … . In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and that of his third grade teacher, who served as the direct supervisor of the teacher’s aide. The plaintiff testified that the teacher’s aide singled him out for attention in the classroom and hugged him in the hallways … . While such conduct, without more, might not have been enough to warrant denial of the defendants’ motion, the plaintiff also testified that, upon dismissal from school, the teacher’s aide frequently walked him to her car in the presence of other staff members and then drove him to her home, where the alleged sexual abuse primarily occurred. The third grade teacher also testified that it was “[in]appropriate” for teachers and other school district employees to drive students in their personal vehicles or take students to their homes, conduct which the teacher also believed violated school policies … .

Therefore, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the school district “had notice of the potential for harm to the . . . plaintiff such that its alleged negligence in supervising and retaining [the teacher’s aide] placed [her] in a position to cause foreseeable harm” … . Kastel v Patchogue-Medford Union Free Sch. Dist., 2025 NY Slip Op 00210, Second Dept 1-15-25

Practice Point: The criteria for a school district’s liability for negligent hiring and retention and negligent supervision in a Child Victims Act case concisely laid out.

 

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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY AN EMPLOYEE OF THE COUNTY SHERIFF’S DEPARTMENT IN A GUARDED DEPARTMENT PARKING LOT AND IN A LOCKED BATHROOM IN THE JAIL; BECAUSE THE COUNTY WAS ENGAGED IN A GOVERNMENTAL, NOT A PROPRIETARY, FUNCTION (PROVIDING SECURITY FOR THE PARKING LOT AND JAIL), PLAINTIFF MUST DEMONSTRATE THE COUNTY OWED HIM A SPECIAL DUTY, WHICH HE WAS UNABLE TO DO (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the negligence action against the county in this Child Victims Act case should have been dismissed. Plaintiff alleged defendant Weis, a corrections officer employed by defendant Suffolk County Sheriff’s Department, sexually abused him in a guarded parking lot at the Sheriff’s Department and in a locked bathroom in the jail. The Second Department held that the alleged negligence related to a governmental function, not a proprietary function of the Sheriff’s Department, requiring plaintiff to demonstrate he was owed a “special duty:”

… [T]he specific acts or omissions that allegedly caused the plaintiff’s injuries were the defendant’s decisions regarding the level of security and surveillance to provide in a fenced-in jail parking lot, with admission controlled by a posted guard, or within the facility itself. Those decisions go beyond the scope of the defendant’s duty as a landlord and constitute actions undertaken in the defendant’s police protection capacity … . Accordingly, the specific acts or omissions at issue here involved a governmental function.

… [B]ecause the defendant was engaged in a governmental function, the plaintiff was required to demonstrate that the municipality owed him a “special duty” … . A special duty can arise, as relevant here, where “the plaintiff belonged to a class for whose benefit a statute was enacted” or “the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally” … . Here, the defendant demonstrated, prima facie, that it did not owe a special duty to the plaintiff, and the plaintiff failed to raise a triable issue of fact in opposition … . Neary v Suffolk County Sheriff’s Dept., 2025 NY Slip Op 00105, Second Dept 1-8-25

Practice Point: It is not easy to determine whether a governmental entity is engaged in a governmental function or a proprietary function at the time of an alleged negligent act or omission. Here plaintiff alleged abuse by a Sheriff’s Department employee in the guarded department parking lot and in a locked bathroom in the jail. The Second Department deemed the security of the parking lot and the jail a governmental function (acting as a landlord) and held the county could not be liable unless it owed plaintiff a ‘special duty.” Plaintiff was unable to demonstrate a “special duty.”

 

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DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR SEXUAL ABUSE OR THE REPEATED, LONG-TERM ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent hiring and negligent supervision case, over a two-justice dissent, determined the defendant school district did not demonstrate it did not have constructive notice of the sexual abuse of plaintiff by a teacher (Faralan) which occurred repeatedly over an extended period during school hours:

… [T]he district failed to meet its prima facie burden of demonstrating that it was not negligent with respect to the hiring, retention, and supervision of Faralan or that it was not negligent with respect to its supervision of the plaintiff. The district submitted no evidence regarding its hiring, retention, or supervision of Faralan, who was a probationary employee during the time when he sexually abused the plaintiff on school grounds, including times when he was tutoring her one-on-one … . Furthermore, the district failed to establish, prima facie, that it lacked constructive notice of Faralan’s abusive propensities and conduct, particularly given the frequency of the abuse, which occurred several times per week over an extended period of time in the same classroom and hallway during tutoring sessions and at times when others were present … . Stanton v Longwood Cent. Sch. Dist., 2024 NY Slip Op 06600, Second Dept 12-24-24

Practice Point: To warrant summary judgment in a negligent hiring and supervision suit alleging abuse of a student by a teacher, the school district must affirmatively demonstrate it did not have constructive notice of the teacher’s propensity for abuse and/or the abuse itself. Plaintiff’s allegations of repeated abuse during school hours over an extended period of time raised a question of fact re: the district’s constructive notice.

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AN ELECTRICAL SUBCONTRACTOR WHICH IS NOT LICENSED IN NEW YORK CITY CANNOT SUE FOR PAYMENT FOR WORK DONE IN THE CITY AND CANNOT FORECLOSE ON RELATED MECHANIC’S LIENS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff electrical subcontractor, Mikoma Tech, did not prove it was licensed to perform electrical work in New York City. Therefore plaintiff could not sue for breach of contract or under a quantum meruit theory and could not foreclose on mechanic’s liens:

… [T]he complaint … failed to allege that Mikoma Tech was licensed to perform electrical work in New York City. As Mikoma Tech was not licensed to perform electrical work in the City, it may not recover against the defendants under a breach of contract or quantum meruit theory and has forfeited the right to foreclose on mechanic’s liens … . Mikoma Elec., LLC v Otek Bldrs., LLC, 2024 NY Slip Op 06332, Second Dept 12-18-24

Practice Point: The rule requiring a license to perform electrical work in New York City is strictly construed. The unlicensed contractor cannot sue for payment and cannot foreclose mechanic’s liens.

 

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THE 18 USC 1983 CAUSE OF ACTION AGAINST THE POLICE AND MUNICIPALITY WAS PROPERLY DISMISSED BECAUSE THE DOCTRINE OF REPONDEAT SUPERIOR DOES NOT APPLY AND THERE WAS NO EVIDENCE THE POLICE WERE ACTING PURSUANT TO A MUNICIPAL CUSTOM OR POLICY WHEN THEY ALLEGEDLY PUSHED PLAINTIFF TO THE GROUND, HANDCUFFED HER AND TASED HER; HOWEVER THE BATTERY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the battery cause of action in this Civil Rights Law (18 USC 1983) case should not have been dismissed. The lawsuit stemmed from the police allegedly pushing plaintiff to the ground, striking her, handcuffing her and tasing her. The 18 USC 1983 cause of action was properly dismissed because plaintiff did not prove the police were acting pursuant to a municipal custom or policy. However, the battery cause of action should not have been dismissed:

However … a jury could rationally conclude that the defendants are liable for battery. “‘To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature'” … . “[A]n assault and battery cause of action may be based on contact during an unlawful arrest” … .

At trial, the plaintiff presented evidence from which the jury could rationally conclude that the detention was not privileged under Mental Hygiene Law § 9.41, and the trial evidence showed that the officers engaged in contact with the plaintiff during the allegedly unlawful detention. The trial evidence, viewed in the light most favorable to the plaintiff, was sufficient to allow the jury to rationally conclude that the two officers were acting within the scope of their official duties at the relevant time. Accordingly, the defendants were not entitled to dismissal of the cause of action alleging battery … . Mac v County of Suffolk, 2024 NY Slip Op 06330, Second Dept 12-18-24

Practice Point: A municipality cannot be held liable pursuant to 18 USC 1983 for the actions of police officers under a respondeat superior theory. The plaintiff must show the police were acting pursuant to a municipal custom or policy.

Practice Point: A municipality may be liable for battery committed by police officers acting within the scope of their employment.

 

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THE COMPLAINT, WHICH ALLEGED PLAINTIFF’S FORMER EMPLOYER “BLACKBALLED” HIM BY PREVENTING HIM FROM PROCURING EMPLOYMENT WITH OTHER COMPANIES. STATED A CAUSE OF ACTION FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the complaint stated a cause of action for tortious interference with prospective contractual relations. Plaintiff was allegedly “blackballed” by his former employer, Con Edison, when he sought employment with other companies after he was fired by Con Edison, allegedly for complaining about illegal dumping of waste:

Contrary to the plaintiff’s contention, the amended complaint failed to state a cause of action to recover damages for tortious interference with contract insofar as asserted against Con Edison. The amended complaint alleged that the plaintiff entered into certain employment contracts after he was terminated from Restani and that Con Edison interfered with those contracts, causing the plaintiff’s termination. Inasmuch as the plaintiff failed to allege that those employment contracts were for a definite term, we presume that they were terminable at will … . A contract that is terminable at will cannot form the basis of a claim for tortious interference with contract because such a contract “contemplates prospective contractual relations only” … .

… [T]he amended complaint stated a cause of action to recover damages for tortious interference with prospective contractual relations insofar as asserted against Con Edison. “Where, as here, the alleged interference was with prospective contractual relationships, rather than existing contracts, a plaintiff must show that the defendant interfered with the plaintiff’s business relationships either with the sole purpose of harming the plaintiff or by means that were unlawful or improper” … . “‘This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party'” … . Wrongful means may include physical violence, fraud, misrepresentation, civil suits, criminal prosecutions, and economic pressure … . Here, the plaintiff sufficiently alleged that Con Edison tortiously interfered with his prospective contractual relationship with his employers by engaging in unlawful retaliatory conduct in violation of Labor Law § 740 … . Ackerson v Restani Constr. Corp., 2024 NY Slip Op 06322, Second Dept 12-18-24

Practice Point: The court noted that interference with at will contracts cannot be the basis for a tortious interference with contract cause of action. However interference with at will contracts can be the basis for a tortious interference with prospective contractual relations cause of action.

 

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NYC MUST PAY CITY EMPLOYEES, RETIREES AND DEPENDENTS THE FULL COST, UP TO THE STATUTORY CAP, OF ANY HEALTH INSURANCE PLAN THE CITY OFFERS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined NYC was required to pay city employees, retirees and dependents the full cost, up to the statutory cap, of any health insurance plan the city offers:

At issue on this appeal are the portions of Administrative Code of the City of New York § 12-126 requiring New York City (“City”) to pay, for active employees, retirees and their dependents, “the entire cost of health insurance coverage,” defined as “[a] program of hospital-surgical-medical benefits,” in an amount “not to exceed one hundred percent of the full cost of H.I.P.-H.M.O. on a category basis.” The statute requires that the City’s program includes “hospital[,] surgical [and] medical benefits.” The statute also requires the City to pay the full cost of the program, so long as that cost does not exceed the comparator in the statute. The question in this case is what section 12-126 requires the City to do when it offers more than one health insurance plan to employees and retirees. Petitioners argue that section 12-126 requires the City to pay, up to the statutory cap, for any plan it offers. The City contends that its section 12-126 obligation is satisfied if it pays up to the cap for one health insurance plan providing hospital, surgical and medical benefits. It argues that it may offer additional plans but has no statutory obligation to pay any portion of their cost, and explains that when it has paid for additional plans in the past, it has done so because it agreed to in collective bargaining, not because it was statutorily required to do so. The parties also disagree as to which health insurance plan sets the statutory cap for Medicare-eligible retirees.

We hold that section 12-126 requires the City to pay up to the statutory cap for any plan it offers to employees and retirees. Matter of NYC Org. of Pub. Serv. Retirees, Inc. v Campion, 2024 NY Slip Op 06291, CtApp 12-17-24

 

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SUBSTITUTE TEACHER NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS FOR THE PERIOD BETWEEN TWO SUCCESSIVE ACADEMIC YEARS DURING THE PANDEMIC BECAUSE HE RECEIVED ASSURANCE OF CONTINUED EMPLOYMENT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined claimant, a substitute teacher, was not entitled to unemployment insurance benefits between two successive academic years (during the COVID pandemic) because he had received assurance of continued employment. The dissenters disagreed with the majority’s conclusion claimant had been assured of continued employment:

“[P]ursuant to Labor Law § 590 (10), a professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment” … . “A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period” … . “Notably, the question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board’s findings in that regard are supported by substantial evidence, they will not be disturbed” … . Matter of Jensen (Commissioner of Labor), 2024 NY Slip Op 06253, Third Dept 12-12-24

Practice Point: A substitute teacher is not entitled to unemployment insurance benefits during the period between two successive academic years if he or she has received assurance of continued employment.

 

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