Opinion
Index No. 2023-53466
08-19-2024
G.M., an infant by his mother and natural guardian, [K.H.], and [K.H.], individually, Plaintiff(s), v. Orange County Transit, LLC, MARIA F. GRONDIN, and WAPPINGERS CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, Defendant(s).
Paul A Marber, Esq. The Rosato Firm Attorney for Plaintiffs Freeman Mathis & Gary, LLP Attorneys for Defendants Orange County Transit, LLC & Maria F. Grondin Sarah Nicole Wilson, Esq. Drake Loeb PLLC Attorney for Defendant Wappingers Central School District Board of Education
Unpublished Opinion
Paul A Marber, Esq. The Rosato Firm Attorney for Plaintiffs
Freeman Mathis & Gary, LLP Attorneys for Defendants Orange County Transit, LLC & Maria F. Grondin
Sarah Nicole Wilson, Esq. Drake Loeb PLLC Attorney for Defendant Wappingers Central School District Board of Education
HON. THOMAS R. DAVIS, J.S.C.
The following papers were read and considered on Defendants' Orange County Transit, LLC and Maria F. Grondin's motion for leave to serve amended answers to plaintiff's complaint and other further relief as this Court deems just and proper.
NYSCEF documents 28-61.
In this action for personal injuries brought by the mother and natural guardian of the infant plaintiff, the Defendants Orange County Transit, LLC and Maria F. Grondin seek to amend their answers to add counter-claims and cross-claims respectively alleging negligence and breach of contract against the guardian mother and the Wappingers Central School District (hereinafter "Wappingers"). The infant plaintiff, a child receiving special education services, was allegedly injured by Grondin, an aide on a school bus on one occasion and by another student on a different occasion. Orange County Transit, LLC (hereinafter "OC Transit") was a contractor hired by the school district to transport the child and employed the aide.
The proposed amended answers would add two counter-claims against the child's mother; negligence and breach of contract. They would also add two causes of action for breach of contract as cross-claims against the Wappingers Central School District.
Ms. Grondin has pled guilty to a misdemeanor charge of endangering the welfare of a child in connection with the first incident, and during her plea allocation under oath admitted to using excessive force against the child. The motion seeks to allow Ms. Grondin and her employer to sue her victim's mother for $100,000 in damages. It does not, however, allege any manner or type of injury or damage to Grondin or OC Transit.
Although Ms. Grondin may benefit from a future reduction in the charge to which she pled guilty, her sworn statement of the facts underlying the charge made to the Court remain.
Both Plaintiff and Wappingers oppose the amendments as "patently devoid of merit" as well as prejudicial and coming as a surprise.
Amendments of pleadings:
It is well settled that amendments of pleadings should be freely granted. The restraint on that freedom comes when the proposed amendment would serve to prejudice a party as a result of the proposed amendment coming late in the proceeding. The more important restraint in this context, however, is when the proposed amendment is "patently devoid of merit."
"'In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit' (Wells Fargo Bank, N.A. v. Spatafore, 183 A.D.3d 853, 853, 122 N.Y.S.3d 557 [internal quotation marks omitted]; see CPLR 3025[b]; Nationstar Mtge., LLC v. Jean-Baptiste, 178 A.D.3d 883, 886, 114 N.Y.S.3d 402). 'The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion' (Wells Fargo Bank, N.A. v. Spatafore, 183 A.D.3d at 853, 122 N.Y.S.3d 557; see U.S. Bank Trust, N.A. v. Carter, 164 A.D.3d 539, 541-542, 83 N.Y.S.3d 1)." Oppedisano v D'Agostino, 196 A.D.3d 497, 498 [2d Dept 2021].
The Defendant's causes of action alleged in the proposed pleading:
The proposed amended pleading contains two new counter-claims against the Plaintiff's mother and two new cross-claims against Wappingers.
As background, the minor child appears to have some severe disabilities, at times manifesting themselves in behavioral challenges, including physical aggression towards others. The child had in place an Individualized Education Plan ("IEP") , as called for under 20 USC § 1414, part of the Individuals with Disabilities Education Act ("IDEA"). The IDEA directs state educational agencies to provide a Free Appropriate Public Education ("FAPE") to students with a disability. A FAPE is one which is provided "in conformity with the individualized education plan required under section 1414(d)." 20 USCA § 1401.
The required contents of an IEP are laid out in 20 USC § 1414.
As part of that IEP, the child was provided with a safety harness which supposedly, according to the proposed amended answer, was to prevent acts of physical aggression. The IEP was later modified to reflect that the harness could be used on an as-needed basis.
Third parties have no role in the making or amendment of an IEP:" In making changes to a child's IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the local educational agency may agree not to convene an IEP meeting for the purposes of making such changes, and instead may develop a written document to amend or modify the child's current IEP." 20 USCA § 1414 (D).
The proposed pleading amendments contain a series of factual assertions including that a safety harness was not supplied to the child which would apparently keep him from misbehaving on the bus. It alleges the child's Individualized Education Plan was altered to eliminate the harness being always in use to at the mother's discretion. The change was allegedly made without input from OC transit.
The proposed amendments to both OC Transit's and Grondin's answers are the same.
The motion is supported solely by an attorney's affirmation. No exhibits are attached other than previously exchanged pleadings and the proposed amended pleading, although various factual allegations and references to documents are made in the affirmation.
The first counter-claim in the proposed amended answers is for negligence against the infant plaintiff's mother. It is not an affirmative defense alleging contributory negligence in order to reduce the damages awarded the infant child, but a claim of an independent tort against the Defendants OC Transit and Grondin and seeks damages of $100,000. Specifically, it claims "[t]hat by reason of Plaintiff [K.H.]'s failure to require G.M. to wear his safety harness, [K.H.] was negligent and thus liable for any injuries sustained." It continues, "That by reason of Plaintiff [K.H.]'s failure to require G.M. to wear his safety harness, the Orange County Defendants have been damaged."
Further evidencing that the proposed amended pleadings are for an independent tort - not a defense based on the Plaintiff's culpable conduct - is that the original answers filed by both Grondin and OC Transit already contained affirmative defenses related to the Plaintiff's culpable conduct (Second, Fifth, Seventh and 25th Affirmative Defenses). The 25th Affirmative Defense in the original answer states specifically, "Plaintiff's injuries, if any, were caused by Plaintiff's failure to provide the proper safety harness for infant Plaintiff, G.M."
Thus, the proposed amendment's claim against G.M.'s mother is for some negligent conduct resulted in an unidentified "damage" to Ms. Grondin and OC Transit for which they should be compensated in an amount in excess of $100,000.
Despite the dictates of CPLR § 3017, a specific dollar amount is demanded in the proposed amended pleadings.
The second counter-claim in the proposed amended answers is for a breach of contract against the plaintiff's mother, which identifies the child's IEP as a contract and OC Transit as a third-party beneficiary and claims the Defendant suffered $100,000 in damages.
The first cross-claim in the proposed amended answers is for breach of contract against Wappingers and again identifies the child's Individualized Education Plan as a contract and OC Transit as a third-party beneficiary of that contract. It seeks damages of $100,000 for breach of that contract.
The second cross-claim in the proposed amended answers is for breach of contract against Wappingers and identifies a contract between Wappingers and OC Transit as the contract and alleges "[t]hat Wappingers had a duty under the Contract to ensure that any requirements under an IEP did not interfere with the safety of other students on the bus or the employees of Orange County Transit, LLC." It further alleges that "That by altering, amending or changing Plaintiff G.M.'s IEP did breach that duty." (sic). Again, no factual allegations are made regarding who was damaged or injured or how.
First counter-claim - negligence.
The analysis of the negligence claim is properly made as it is alleged - an independent claim for negligence.
Of course, the elements of negligence should be well known and begin with duty, without which there is no negligence:
"Because a finding of negligence must be based on the breach of a duty, a threshold question in negligence cases is whether the alleged tortfeasor owed a duty of care to the injured party, Espinal v Melville Snow Contractors, Inc., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002); Alpha/Omega Concrete Corp. v Ovation Risk Planners, Inc., 197 A.D.3d 1274, 154 N.Y.S.3d 113 (2d Dept 2021); see Oddo v Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc., 28 N.Y.3d 731, 49 N.Y.S.3d 358, 71 N.E.3d 946 (2017); Davis v South Nassau Communities Hosp., 26 N.Y.3d 563, 26 N.Y.S.3d 231, 46 N.E.3d 614 (2015); Landon v Kroll Laboratory Specialists, Inc., 22 N.Y.3d 1, 977 N.Y.S.2d 676, 999 N.E.2d 1121 (2013); Church ex rel. Smith v Callanan Industries, Inc., 99 N.Y.2d 104, 752 N.Y.S.2d 254, 782 N.E.2d 50 (2002); Sheila C. v Povich, 11 A.D.3d 120, 781 N.Y.S.2d 342 (1st Dept 2004). Negligence arises from a breach of a legal duty, Strauss v Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34 (1985); Pulka v Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976); Levine v New York, 309 NY 88, 127 N.E.2d 825 (1955); Palsgraf v Long Island R. Co., 248 NY 339, 162 NE 99 (1928), not a moral one, Daily v Tops Markets, LLC, 134 A.D.3d 1332, 20 N.Y.S.3d 487 (3d Dept 2015), and is not actionable unless it results in damage to a person to whom the legal duty is owed, Levine v New York, supra; Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 200 NE 824 (1936); Larmore v Crown Point Iron Co., 101 NY 391, 4 NE 752 (1886). As stated by the Court of Appeals, a "finding of negligence may be based only upon the breach of a duty," Darby v Compagnie National Air France, 96 N.Y.2d 343, 728 N.Y.S.2d 731, 753 N.E.2d 160 (2001); see Pasternack v Laboratory Corp. of America Holdings, 27 N.Y.3d 817, 37 N.Y.S.3d 750, 59 N.E.3d 485 (2016). The only relevant question is whether defendant breached a duty to plaintiff; a breach of duty to others is not material, Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001) and Strauss v Belle Realty Co., supra (extent of duty should be limited on policy grounds); Jenks v McGranaghan, 30 N.Y.2d 475, 334 N.Y.S.2d 641, 285 N.E.2d 876 (1972) (no duty on part of golfer to warn player not in line of play); H.R. Moch Co. v Rensselaer Water Co., 247 NY 160, 159 NE 896 (1928); Beck v FMC Corp., 53 A.D.2d 118, 385 N.Y.S.2d 956 (4th Dept 1976), aff'd, 42 N.Y.2d 1027, 398 N.Y.S.2d 1011, 369 N.E.2d 10 (1977) (power company owed no duty to employees for failing to furnish electricity to employer); Igbara v Verizon Communications, Inc., 2 A.D.3d 330, 770 N.Y.S.2d 29 (1st Dept 2003) (telephone company had no duty to safeguard its truck for benefit of woman whose husband was murdered by individual who stole truck and gained entrance to home by representing himself as telephone company employee);" NY Pattern Jury Instr.-Civil 2:10. Duty is a question of law. "Before a defendant may be held liable for negligence, there must first be a legal duty owed by that defendant to the plaintiff (see Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Krinick v. Sharac Rest., 144 A.D.2d 440, 533 N.Y.S.2d 1013). Whether a duty exists is a question of law for the court (see Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128), which must consider the social consequences of imposing a duty and then tailor the duty in order to limit the legal consequences to a controllable degree (id.; see Bodaness v. Staten Is. Aid, 170 A.D.2d 637, 638, 567 N.Y.S.2d 63; see also Parks v. Hutchins, 162 A.D.2d 666, 670, 557 N.Y.S.2d 389, affd. 78 N.Y.2d 1049, 576 N.Y.S.2d 84, 581 N.E.2d 1339)." St. Paul Travelers Companies, Inc. v Joseph Mauro & Son, Inc., 93 A.D.3d 658, 660 [2d Dept 2012].
Duty is analyzed by, among other things, looking at the harm that results from the lack of reasonable care. So, for example, a truck driver has a duty to avoid collisions with other vehicles and injury to other drivers and passengers. Conversely, when a "Plaintiff's husband was murdered by an individual who, having stolen one of defendant Verizon's vehicles, gained admission to plaintiff's home by representing that he was a Verizon employee" no liability is imposed upon the truck driver for negligence in safeguarding his vehicle. Igbara v Verizon Communications, Inc., 2 A.D.3d 330, 770 N.Y.S.2d 29 (1st Dept 2003).
Without identifying the harm or injury, a duty simply cannot be determined.
Further, when determining duty, "[a]s we have often said, the existence and scope of a duty is a question of law requiring courts to balance sometimes competing public policy considerations (see e.g. Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 585-586, 611 N.Y.S.2d 817, 634 N.E.2d 189 [1994]; Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226-227, 557 N.Y.S.2d 286, 556 N.E.2d 1093 [1990])." Espinal v Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 [2002].
To some extent, the Defendants allege that they were owed a duty in the development of the IEP. There is no need to balance the interests as it regards that claim. The Federal statute in question makes clear its purpose and sole benefit is to provide a child with a disability educational services. Enacted in 1990, the Individuals with Disabilities Education Act (20 USC § 1400) has as its stated purpose:
"(1) (A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; (B) to ensure that the rights of children with disabilities and parents of such children are protected; and (C) to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; (2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families; (3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting system improvement activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services; and (4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities."20 USCA § 1400.
To impose a duty arising from the Act to third parties would undermine Congress' clear direction as to whom the statute is meant to serve. Further, it would seriously undermine the limitations placed on Individualized Education Plans that they be developed with the least degree of restriction.
"The statute provides federal assistance for education of children with disabilities and requires that states receiving such assistance provide disabled students with a 'free appropriate public education' in 'the least restrictive environment," 20 U.S.C. § 1412(a)(1), (5)." P. ex rel. Mr. and Mrs. P. v Newington Bd. of Ed., 546 F.3d 111, 114 [2d Cir 2008].The remaining elements of negligence: the failure to use reasonable care, causation and damages are completely lacking without identification of the harm resulting.
In short, the proposed amended pleading's first counter-claim is without any merit whatsoever.
Second counter-claim; breach of contract/third-party beneficiary.
Of course, OC Transit is not a party to the IEP. OC Transit and Grondin, however, claim they are "third-party beneficiaries" to the IEP which it describes as a "contract."
Thus, in order to state a claim, the Defendant would have to establish that the IEP is a contract, that OC Transit and Ms. Grondin are intended third-party beneficiaries, that there has been a breach and damages.
As every single element necessary is lacking, this cause of action is completely without merit.
The IEP is not a contract:
"Plaintiff's Amended Complaint contends that the South Portland School Department has breached the transportation contract, either express or implied, that it holds with each of its students. Defendants offer extensive detailed analysis, well supported by considerable case law, in arguing that there existed neither an express nor an implied contract between S.B. and the South Portland School Department. (Defs.' Mot. For Summ. J. (Docket No. 27) at 16-18.) Defendants also offered specific precedent demonstrating that an IEP is not a legally binding contract (See Carter v. Florence, 17 EHLR 452 (D.S.C.1991); Parents v. Bangor School Department, Case No. 01.281, http:// www.maine.gov/ educa tion/speced/2001% 20hearings/01281% 20doc.doc).
The Court finds Defendants' analysis entirely persuasive." Ms. K v. City of S. Portland, 407 F.Supp.2d 290, 301 [D Me 2006].
"First, the IEP is entirely a federal statutory creation, and courts have rejected efforts to frame challenges to IEPs as breach-of-contract claims. See, e.g., Ms. K. v. City of South Portland, 407 F.Supp.2d 290, 301 (D.Me.2006) ("[A]n IEP is not a legally binding contract."). Van Duyn offers no example of a court treating an IEP as a contract, nor have we been able to locate any." Van Duyn ex rel. Van Duyn v Baker School Dist. 5J, 502 F.3d 811, 820 [9th Cir 2007].
Nor is there any merit to a claim that there can be a third-party beneficiary of an Individualized Education Plan:
"'A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to [it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost" (Nanomedicon, LLC v. Research Found. of State Univ. of NY, 112 A.D.3d 594, 596, 976 N.Y.S.2d 191 [internal quotation marks omitted]; see Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 336, 464 N.Y.S.2d 712, 451 N.E.2d 459)." 'In determining third-party beneficiary status it is permissible for the court to look at the surrounding circumstances as well as the agreement,'" and" 'the obligation to perform to the third party beneficiary need not be expressly stated in the contract'" (Encore Lake Grove Homeowners Assn., Inc. v. Cashin Assoc., P.C., 111 A.D.3d at 882, 976 N.Y.S.2d 143, quoting Aievoli v. Farley, 223 A.D.2d 613, 614, 636 N.Y.S.2d 833 [internal quotation marks omitted])."Bd. of Educ. of Northport-E. Northport Union Free School Dist. v Long Is. Power Auth., 130 A.D.3d 953, 954-55 [2d Dept 2015].
The claim also fails on the second element necessary for a third-party beneficiary claim, that the contract was intended for the moving Defendant's benefit. The sole beneficiary, if that term can even be applied, of an Individualized Education Plan is the child in need of special education services. Specifically, the only considerations permissible under the IDEA are laid out in the statute:
" (3) Development of IEP (A) In general
In developing each child's IEP, the IEP Team, subject to subparagraph (C), shall consider
(i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child." 20 USCA § 1414."
The statutory scheme enacted by Congress would be completely undermined - if not rewritten - by allowing others to claim that a plan to provide a child a free appropriate public education also includes an obligation to the third party which if breached would subject the student's parent and the particular school district to damages. The unworkability of such an interpretation is clearly evident.
It would also be somewhat bizarre for the child's parent - if the IEP was considered to be a contract - would be limited to the required administrative procedures and limits on the types of relief that may be granted under the IDEA, while a third-party beneficiary would be able to sue for money damages immediately.
It appears that the Defendants allege in their proposed amendment that the "breach" of the IEP as it regards them was in allowing the IEP to be modified as it regards the use of the safety harness. Specifically, the IEP was amended at one point to allow the safety-harness to be used on an "as needed" basis, instead of at all times. It is not explained how an amendment of what is described as a contact can serve to be a breach of that contract.
The alleged damages are described as follows: "That the Orange County Defendants did suffer damages as a result of [K.H.]'s failure to require G.M. to wear the safety harness." How they were damaged is absent. There is nothing in the proposed amendments that indicates that the Defendants were in fact damaged or injured in any way.
The second counter-claim proposed by OC Transit and Ms. Grondin is wholly without merit.
First cross-claim against Wappinger - breach of contract/third-party beneficiary.
Again alleging that the IEP is a contract and that OC Transit and Ms. Grondin were third-party beneficiaries, the same analysis applies as to the amended pleadings' first cross-claim as applied to the second counterclaim. Thus, those claims are wholly without merit.
Second cross-claim against Wappingers - breach of contract.
Finally, the second cross-claim against Wappingers alleges that the contract to provide transportation services to the District created a duty to OC Transit and Grondin. The moving Defendants claim that Wappinger "had a duty under the contract that to ensure that any requirements under an IEP did not interfere with the safety of other students on the bus or the employees of Orange County Transit, LLC." The allegation is that Wappingers breached that duty. OC Transit and Ms. Grondin seek $100,000 in damages. No harm is alleged.
As analyzed above, no duty can be imposed on an IEP to third parties, nor upon Wappingers to develop an IEP with any interest in mind other than the subject student's. Finally, the failure to allege any harm makes the proposed amended pleadings' second cross-claim meritless.
As there is no merit to the proposed amended pleadings, the motion by the Defendants OC Transit and Ms. Grondin must fail.
In their answering papers, the Plaintiff and Wappingers both describe the motion as frivolous. However, neither party has followed the procedural process for the imposition of sanctions. It is indeed troubling that the proposed amendments lack any merit, are in violation of CPLR § 3017 (c), and do not allege any harm. However, given the lack of a representation that Counsel made a demand to withdraw the frivolous application nor is the requested presented the issue by formal cross-motion, sanctions are not warranted.
For the foregoing reasons, therefore, it is hereby, ORDERED, that the motion by Defendants Orange County Transit, LLC and Maria F. Grondin to amend their respective answers is DENIED.
Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.