Opinion
E2019005051
05-15-2020
Carrie HOUSTON, as the mother and natural guardian of Trevyan Devon Rowe, deceased, Plaintiff, v. ROCHESTER CITY SCHOOL DISTRICT; Board of Education of the Rochester City School District; Anna Murray-Douglas Academy No. 6 f/k/a James P.B. Duffy School No. 12 ; Van Henri White; Barbara Deane-Williams; Jennifer Gkourlias; Bridgitte Griffin First Student, Inc.; City of Rochester; City of Rochester Police Department; City of Rochester Fire Department ; City of Rochester Emergency Communications Department-911; and Lovely Ann Warren, Defendants. Frank B. Iacovangelo, as Public Administrator of the Estate of Trevyan Devon Rowe, Plaintiff, v. Rochester City School District, City of Rochester, John Does No.1 Through #10 and First Student, Inc., Defendants.
There are two actions pending before the court, each arising out of the death of Trevyan Rowe, a 12 year old autistic boy who on March 8, 2018, walked off the grounds of the school he attended, School number 12, which was operated and maintained by the Rochester City School District ( hereinafter referred to as the "RCSD" ) and where he had been dropped off by a bus operated by defendant First Student, Inc. Trevyan then walked to the Susan B Anthony — Frederick Douglass bridge, jumped off the bridge into the Genesee River and drowned.
"RCSD" will refer in this decision to the Rochester City School District, named individuals, and the educational facilities named.
Initially a Notice of Claim was served by counsel, Jason T. Brown, Esq., a member of JTB Law Group, LLC, now known as Brown, LLC, dated May 25, 2018, asserting claims on behalf of one Melissa Cole, as "proposed administrator" of the Estate of Trevyan Devon Rowe, deceased, and Carrie Houston, individually. The Notice of Claim was rejected.
A petition for limited letters of administration of the Estate of Trevyan Devon Rowe naming Ms. Cole as a proposed administrator was filed in the Monroe County Surrogate's Court on June 11, 2018. Those letters were not granted, as the Public Administrator had priority to be granted letters, pursuant to SCPA § 1001(8).
On or about June 10, 2019, the Summons and Complaint on behalf of Carrie Houston as natural mother and natural guardian of Trevyan Rowe was filed and thereafter served on the Rochester City School District and those defendants associated with it - the Board Of Education Of The Rochester City School District; Anna Murray-Douglas Academy No. 6 f/k/a James P.B. Duffy School No. 12; Van Henri White; Barbara Deane-Williams; Jennifer Gkourlias; and Bridgitte Griffin (referred to as the "RCSD defendants in the Houston action")
Also, on June 10, 2019, letters of administration were issued to Frank B. Iacovangelo, Esq., as the Public Administrator for Monroe County on behalf of the Estate of Trevyan Devon Rowe (hereinafter the "Estate").
Within hours thereafter, a summons with notice was filed (and ultimately served) by the Estate in a separate action, seeking on behalf of the Estate and the Decedent's distributes and against the RCSD, the City of Rochester, "John Does #s 1through 10," and First Student, Inc., damages for negligence, breach of contract, violation of civil rights laws, wrongful death, and for survival action damages.
The Estate then moved to intervene in the action filed by Carrie Houston, and that motion was granted. The actions were thereafter joined.
Multiple motions to dismiss, all pursuant to Rule 3211 of the New York Civil Practice Laws and Rules ensued.
In its first motion the RCSD defendants in the Houston action move to dismiss the action brought by the plaintiff Carrie Houston, the mother and natural Guardian Of Trevyan Devon Rowe, the decedent, on the ground that the named plaintiff, the mother Carrie Houston, has no standing to bring the action.
In its second motion, the RCSD moves pursuant to CPLR 3211(a)(7) to dismiss some of the claims brought by the Estate, namely, the portions of the first cause of action grounded in what it classifies as claims of educational malpractice; as well as the second, third, and fourth causes of action against the District, all on the ground that the claims fail to state a cause of action.
Separately, the defendant City of Rochester and its associated defendants in the Houston action — the City of Rochester Police Department, City of Rochester Fire Department, City of Rochester Emergency Communications Department—911 and Lovely Warren ("City Defendants") move to dismiss all claims against them in the Houston complaint, on the ground that Carrie Houston lacks standing to bring the action.
The City of Rochester (hereinafter referred to as the "City") also moves to dismiss pursuant to CPLR 3211(a)(7) all claims against it brought by the Estate, on the ground that they fail to state a cause of action. The allegations that form the basis of the claims against the City of Rochester are the same as in the four causes of action brought by the Estate against the RCSD.Finally, defendant First Student, Inc., which operated the bus that dropped Trevyan off at school on the day he drowned, moves to dismiss the action against it brought by Carrie Houston, on the ground that she lacks standing to bring the action. First Student, Inc. is not named in the Estate's action.
I: Motion To Dismiss By All Parties To Dismiss All Claims Set Forth in the Carrie Houston Action
It is well-settled - in fact, it is a matter of statutory authority - that only a duly appointed representative of an estate can bring an action for claims arising out of person's death, which typically are claims for pain and suffering from the time of injury to the time of death, and a statutorily-created wrongful death claim (see EPTL § 5-4.1 ; see also Freeland v. Erie County , 122 AD3d 1348 [4th Dept 2014] ; In re Seventh Jud. Dist. Asbestos Litig , 4 Misc 3d 457, 458 [Sup Ct Monroe County 2004] ; Brandon v. Columbian Mutual Life Ins. Co , 264 AD2d 436 [2nd Dept 1999] )
Carrie Houston's first cause of action against all parties is a claim that reads as a "wrongful death" claim, because it is a "pecuniary loss" only (see EPTL § 5-4.3 ; see also Liff v. Schildkrout , 49 NY2d 622, 632-633 [1980] ). In her first cause of action she asserts that she sustained a "pecuniary loss, including a loss of guidance and support"
Accordingly, the First Cause of Action for "wrongful death" brought by Carrie Houston is dismissed as against all defendants, because she does not have "legal standing to sue" ( NY CPLR 3211[a][3] ).
Houston claims in her Second Cause of Action that she seeks recovery of the "love, solace, affection, companionship, support, and household services" of the decedent Trevyan Rowe. Again, no such claim is recognized by the statute or in case law, as it is not a claim for "pecuniary loss" (see EPTL § 5-4.1 ; see also Liff v. Schildkrout , 49 NY2d 622, 632-633 (1980] ) ; Greco v. Kresge Co. , 277 NY 26, 32[1938] ; Arias v. State , 8 Misc 3d 736 [Ct. Cl. 2005] ), thus the second cause of action is dismissed as well (see NY CPLR 3211[a][7] ).
Accordingly, the Houston action is dismissed in its entirety as against all defendants named in the Carrie Houston action.
II: Motions To Dismiss Claims Brought By Frank Iacovangelo as Administrator of the Estate Of Trevyan Rowe
In its Complaint the Estate of Trevyan Rowe sets forth four causes of action, and each cause of action alleges liability collectively against the defendant Rochester City School District, the City Of Rochester and "John Does #1 Through #10."
Those causes of action allege, in essence, that the defendants 1) were negligent with regard to the supervision of Trevyan, resulting in his death; 2) breached a contract with Trevyan in regard to his classification under an Individualized Educational Program (commonly referred to as an "IEP"), which misclassification led to Trevyan's death; 3) violated his substantive due process rights, actionable under 42 USC § 1983, in that the IEP omitted certain facts, conclusions and recommendations regarding Trevyan's true mental status, which prevented the defendants from taking steps necessary to protect Trevyan from self-inflicted harm, and that the RCSD even ignored or refused to implement its own recommendations, which created an increased risk of suicide; and 4) violated his substantive due process rights, in that they attempted to conceal the fact that Trevyan had gone missing, and that the concealment led or contributed to his not being found earlier, and perhaps ultimately, causing him to die.
1. Motion by the RCSD to Dismiss the Estate's Claims Against It
The RCSD moves now to dismiss "portions" of the First Cause of Action, and the Second, Third and Fourth Causes of Action in their entirety, on the ground that they fail to state a cause of action, pursuant to CPLR 3211(a)(7).
In considering a motion to dismiss pursuant to CPLR 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" ( Juerss v. Millbrook Cent. School Dist. , 161 AD3d 967, 968, 77 NYS3d 674, 676 [2d Dept 2018], lv to appeal denied, 32 NY3d 903, 109 NE3d 1157 [2018], quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275. "[T]he pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference" (Juerss, i.d. , quoting Michaan v. Gazebo Hort., Inc., 117 AD3d 692, 692 (, ) and citing to Leon v. Martinez, 84 NY2d 83, 87 see also(see Gibraltar Steel v. Gibraltar Metal Proc. , 19 AD3d 1141, 1142 [4th Dept 2005] ).
Moreover, "[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Minovici v. Belkin BV , 109 AD3d 520, 521-22 [2d Dept 2013] ).
"As recently as 2012, the Court of Appeals summarily dismissed a complaint under CPLR 3211(a)(7) because its factual underpinnings were" belied" by the documentary evidence submitted in connection with the motion Liberty Affordable Hous., Inc. v. Maple Ct. Apartments , 125 AD3d 85, 89-90, 998 NYS2d 543, 546 [4th Dept 2015], citing Simkin v. Blank, 19 NY3d 46, 54, 945 N.Y.S.2d 222, 968 N.E.2d 459 ).
a. The RCSD's Motion to Dismiss a "portion" of the Estate's First Cause of Action.
The RCSD argues that some of the allegations in the First Cause of Action sound in "educational malpractice," a theory not recognized in New York. Those allegations include:
a. Failing to properly classify the nature and extent of the Decedent's disability;
b. Affirmatively electing to omit from the Decedent's IEPs the true nature and extent of the Decedent's disability, his mental health concerns, his suicidal ideation, his tendency to go truant and recommendations expressly made in connection with the Decedent's psychological evaluation(s);
c. Failing to properly monitor attendance;
d. Failing to properly inform, advise, instruct, train and supervise their officials, members, employees, servants, representatives and/or agents charged with the Decedent's care, custody and control in accordance with the Decedent's IEPs;
e. Failing to recommend in-school counseling in a timely and effective manner;
f. Failing to implement a safety plan for the Decedent; and
g. Failing to monitor the Decedent's suicidal ideation.
While it is true that educational malpractice is not recognized in New York, the cases cited by the RCSD relate to claims of poor student outcome, not actions resulting in injuries or death (see e.g. Paladino v. Adelphi Univ , 89 AD2d 85 [2d Dept. 1982] ; Livolsi v. Hicksville Union-Free School Dist , 263 AD2d 447 [2d Dept. 1999] ).
Generally speaking, the allegations which the RCSD believes should be excised from the action the First Cause of Action sound in "negligence" or "negligent supervision," i.e., that the RCSD allowed Trevyan Rowe to leave the school grounds without authorization, and then failed to notify his caregivers or law enforcement, actions which led to his death. Thus this is a wrongful death action, not a poor student outcome action, and is clearly recognized in New York.
This isn't to say that all the allegations will find their way into trial testimony, or even that all will survive a motion for summary judgment, but at this stage, the motion is denied.
b. The RCSD's Motion to Dismiss the Estate's Second Cause of Action alleging breach of contract
The second cause of action in the complaint purports to be a claim for breach of contract arising out of the same alleged acts of negligence as set forth in the First Cause of Action.
However, the injury and consequent damages claimed are the same as requested in the First Cause of Action, namely, the death of Trevyan Rowe and the financial consequences flowing from his death. Thus, the Second Cause of Action, arising from the same set of facts as the First Cause of Action and not seeking "distinct and different damages" ( Thompsen v. Baier , 84 AD3d 1062, 1063-64 [2d Dept 2011] ) is duplicative of the First Cause of Action and is dismissed ( Postiglione v. Castro , 119 AD3d 920, 922 [2d Dept 2014] ).
c. The RCSD's motion to dismiss the Third Cause of Action - violation of Trevyan's "substantive due process" rights
In its third Cause of Action the Estate claims that the RCSD essentially mis-classified the extent of Trevyan's emotional and mental difficulties in its Individualized Educational Program (IEP), failed to follow through with its own recommendations, and "affirmatively concealed from Trevyan's family members and the RCSD's officials charged with Trevyan's care, custody and control, the true nature and extent of Trevyan's mental and behavioral issues, suicidal ideation and prior incidents of disturbing behavior and attempts to cause self-harm." (Estate's Memorandum of Law in Opposition to Motion to Dismiss, p. 7)
This "affirmative concealment," the Estate argues, was a "state-created danger," and was of such a degree that it "shocks the conscience of our community," with the result that the RCSD violated the decedent's "substantive due process right to bodily integrity" (quoting Lombardi v. Whitman , 485 F3d 73, 78-79 [2d Cir. 2007] ).
The RCSD moves to dismiss the Third Cause of Action, arguing that the facts as alleged do not rise to the level of a federal substantive due process claim.
First of all, it is well - settled under Monell v. New York City Dept. of Social Services , 436 U.S. 658 (1978) that a municipality such as the Rochester City School District can be found liable under 42 U.S.C. § 1983 only where the municipality itself causes a constitutional violation based upon an existing municipal policy and/or custom that creates a "causal link a direct causal link between a municipal policy or custom and the alleged constitutional deprivation" ( City of Canton, Ohio v. Harris , 489 U.S. 378, 385 [1989] ). Here the Estate has alleged nothing which can be taken as a statement of a school district-wide policy.
Since respondeat superior or vicarious liability does not attach under Section 1983 (Monell, i.d.) , any action predicated on a violation of Trevyan's due process rights can only exist, if at all, against what the Estate names as "John Does 1-10," entities or persons which have not appeared in the action, have not been served (upon review of the NYSECF electronic filing site) and which are not represented by counsel for the RCSD. Moreover, those individuals are not even identified at to who employed them -they are lumped together as having been employed by the RCSD or the City of Rochester.
Even if the complaint alleged that an RCSD policy was responsible for Trevyan's injuries, the allegations do not rise to the level of a "substantive due process" violation.
It has long been the rule in the Second Circuit that "(t)he affirmative conduct of a government official may give rise to an actionable due process violation if it communicates ... official sanction of private violence or if the state actor affirmatively encouraged (emphasis added) third-party violence" ( Golian v. N.Y.C. Admin. for Children Servs., 282 F. Supp. 3d 718, 730—31 [SDNY 2017] [citing to Okin v. Vill. of Cornwall—On—Hudson Police Dep't , 577 F3d 415, 429, 430 (2d Cir. 2009) ; Hemphill v. Schott, 141 F3d 412, 418 [2d Cir 1998] ; Dwares v. City of New York , 985 F2d 94, 99 [2d Cir. 1993] ; see also Doe v. Bedford Cent. School Dist., (2019 WL 6498166, at p. 5 [SDNY Dec. 3, 2019] ).
Here the RCSD, however much it neglected Trevyan's issues and ignored its own recommendations, cannot be said to have affirmatively taken action that put Trevyan in a worse situation.
Nothing set forth on the allegations that comprises the Third Cause of Action allow a reasonable inference, even upon a liberal reading, that the RCSD "created a danger where otherwise one would not have existed" ( Lombardi v. Whitman , 485 F3d 73, 79 [2d Cir 2007] ). It is self-evident that if the RCSD had done nothing to categorize and classify Trevyan's problems, he would have been worse off and more susceptible to self-inflicted injury. "The right to due process protects people from being unlawfully restrained; it provides no right to be restrained, lawfully, or otherwise" ( Martin v. Shawano-Gresham School Dist , 295 F3d 701, 709 [7th Cir. 2002]. Cases cited by the plaintiff in support of its proposition that substantive due process includes a right to "bodily integrity" are based on fact patterns so entirely different from the instant matter as to render them virtually useless as a controlling authority (see e.g. Lombardi v. Whitman , 485 F3d 73, 75 [2d Cir 2007] [involving injury to workers following the attack on the World Trade Center]; Ying Jing Gan v. City of New York , 996 F2d 522, 525 [2d Cir 1993] [where police investigators exposed a crime victim to retaliation by a gang] ).
The Estate seizes on language in Lombardi v. Whitman , 485 F3d 73, 81 (2d Cir 2007) to support a theory that the RCSD is liable because Trevyan or his family may have been given a "false sense of security from intentional representations" by RCSD officials, which in turn led to his death.
However, as was noted by the court in Doe v. Bedford Cent. School Dist., (2019 WL 6498166, at p. 5 [SDNY Dec. 3, 2019] ), "Lombardi's dicta notwithstanding, the Second Circuit "has always required a state agent's encouragement or official sanction of private violence to sustain an actionable substantive due process claim" (i.d.) (internal citations and quotations omitted).
Even if the RCSD created the danger to Trevyan by affirmatively ignoring its own recommendation, the allegations do not rise to the degree that they "shock the conscience of the community." Such actions must rise to it must be truly "brutal and offensive to human dignity...." ( Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 173 [2d Cir.2002], quoting Johnson v. Glick, 481 F.2d 1028, 1033 & n. 6 [2d Cir 1973]. Here it cannot be said, on the face of the allegations in the Complaint, that the RCSD's actions rose to the level of "brutal" and "offensive to human dignity."
Thus, the Estate's Third Cause of Action is dismissed as against the RCSD and John Does 1-10, to the extent they worked for the Rochester City School District. .
d. RCSD's Motion to Dismiss the Estate's Fourth Cause of Action — violation of Trevyan's "substantive due process" rights because of concealment of misconduct.
In its Fourth Cause of Action the Estate claims that the RCSD violated Trevyan's substantive due process rights actionable under 42 USC § 1983 when it "affirmatively created and/or enhanced the risk of harm to Trevyan by intentionally concealing its misconduct after being expressly aware that Trevyan had gone truant and was missing, which acted to hinder and delay emergency efforts to locate and protect Trevyan."
This cause of action must be dismissed as well. While it is nearly true that the RCSD's alleged deliberate attempt to conceal that it allowed Trevyan to leave the school grounds "shocks the conscience of the community," it cannot be said by altering its records or concealing its misconduct RCSD "enhanced" the danger to Trevyan, nor can it be said that altering attendance records is a district-wide policy.
"Absent a showing that the school affirmatively caused a suicide, the primary responsibility for safeguarding children from this danger, as from most others, is that of their parents; and even they, with direct control and intimate knowledge, are often helpless. Possibly there was school negligence here—one would need more information to make a judgment—but negligence is not a due process violation ( Hasenfus v. LaJeunesse , 175 F3d 68, 73 [1st Cir 1999] [citing Daniels v. Williams, 474 US 327, 332—33, 106 S.Ct. 662, 88 L.Ed.2d 662 [1986] ).
Here, even assuming the truth of the allegations in the Fourth Cause of Action, it cannot be said that the school district affirmatively caused Trevyan to commit suicide, however much it may have been negligent in allowing it to happen, thus there was no "substantive due process" violation.
The Estate's Fourth Cause of Action against RCSD is dismissed as against the Rochester city School District and John Does 1-10, to the extent they were employed by the school district.
2. Motion of the City of Rochester to Dismiss the Estate Claims Against It
The City of Rochester moves pursuant to CPLR 3211(a) (1), defense founded upon documentary evidence, and CPLR 3211 (a)(7), failure to state a claim for which relief can be granted, to dismiss those claims it, arguing that it had nothing to do whatsoever with the manner in which the RCSD conducts its internal operations, and never assumed a proprietary duty with respect to any calls relating to Trevyan.
The standard on a motion to dismiss is well-settled. The court "must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Ingutti v. Rochester Gen. Hosp. , 145 AD3d 1423, 1424 [4th Dept. 2016] [internal quotation omitted] ). In deciding whether to grant a motion pursuant to CPLR 3211 (a)(7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" (id. ).
Moreover, "[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Minovici v. Belkin BV , 109 AD3d 520, 521-22 [2d Dept 2013] ).
Any facts in the complaint and submissions in opposition to the motion to dismiss are accepted as true, and the benefit of every possible favorable inference is afforded to the plaintiff (see Gibraltar Steel v. Gibraltar Metal Proc. , 19 AD3d 1141, 1142 [4th Dept 2005] ).
A party may move to dismiss pursuant to CPLR R 3211(a)(1) when there is "documentary evidence which utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (id. ); see also Cochard-Robinson v. Concepcion , 60 AD3d 800 (2d Dept. 2009). "In order for evidence to qualify as documentary, it must be unambiguous, authentic and undeniable." ( Sunset Café, Inc. v. Mett's Surf & Sports Corp. , 103 AD3d 707, 709 [2d Dept 2013] ; Heffer, supra , 134 AD3d at 675 ("The evidence must be unambiguous and of undisputed authenticity.").
a. The City of Rochester's Motion to Dismiss the Estate's First Cause of Action Against It
The Estate's claim against the City of Rochester in the First Cause of Action can be read (to give it a liberal reading) to premise liability on the City's negligence "in failing to properly respond to 911 calls indicating that the Decedent was seen on a non-pedestrian bridge over the Genesee River."
Here the City has submitted undisputed documentary evidence that before the decedent was marked absent from school at 9:02 a.m. on the morning of March 8, 2018, and long before he was reported missing to the Rochester Police Department at 5:15 p.ma police radio call and six 911 calls were received by the Emergency Communications Division, reporting an individual walking along I-490 on the Frederick Douglass-Susan B. Anthony Memorial Bridge ("Freddie-Sue Bridge"); that at 8:08 a.m. the matter was dispatched to the New York State Police ("NYSP"), which has jurisdiction over I-490; that the NYSP unit was present at the Freddie-Sue Bridge at 8:17 a.m. and reported at 8:19 a.m. that there was "nothing showing" at the location, then closed out its "emergency job."
Accordingly, the duty assumed by the City with regard to its response to the report of a person walking on the Freddie-Sue bridge was part of its "governmental function" undertaken for the protection and safety of the of the public pursuant to its general police powers. ( Applewhite v. Accuhealth, Inc. , 21 NY3d 420, 425, 995 NE2d 131 [2013] )
Municipal emergency systems and responses to 911 calls have been held to be "within the sphere of governmental functions" ( Applewhite v. Accuhealth, Inc. , 21 NY3d 420, 427, 995 NE2d 131 [2013] )
In no way could it be said that the duty assumed by the City was "proprietary," in other words, as a substitute for traditional private enterprise " (Applewhite i.d. , quoting Sebastian v. State of New York , 93 NY2d 790, 793 [1999] [internal quotation marks omitted] ).
Nor did the City assume a special duty toward the decedent, as the Estate's complaint does not allege facts sufficient to conclude, even accepting as true each and every allegation, that the (1) the plaintiff belonged to a class for whose benefit a statute was enacted; or that (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition. (id. )
In negligence cases brought against municipal defendants, the New York Court of Appeals has "[t]ime and time again ... required ... that the damaged plaintiff be able to point the finger of responsibility at a defendant owing, not a general duty to society, but a specific duty to him"(id. ). This is especially so here where plaintiff alleges harm resulting from an alleged failure to provide protection through police or other emergency services ( Cuffy v. New York , 69 NY2d 255, 260 [1987] ).
Accordingly, the First Cause of Action as against the City of Rochester, and as against any John Does 1-10 that could be said to have been employed by the City of Rochester, is dismissed.
b. The City of Rochester's Motion to Dismiss the Estate's Second Cause of Action Against It for Breach of Contract
The City of Rochester was not a party to the contract between the RCSD and the decedent establishing the decedent's Individualized Educational Program, or IEP. New York State Education Law makes it a duty of school districts—not municipalities—to classify special education students and prepare IEPs (see Ed. L. §§ 4401-a, 4402). This is consistent with federal law, which requires "local educational agencies" to conduct evaluations and implement IEPs ( 20 USC § 1414 ). "While members of a Board of Education in a city perform tasks generally regarded as connected with local government, they are officers of an independent corporation separate and distinct from the city, created by the State for the purpose of carrying out a purely State function and are not city officers within the compass of the Constitution's home rule provisions" ( Lanza v. Wagner , 11 NY2d 317, 326 [1962] [citations omitted] ). As such, the City is not responsible for liabilities of the Board of Education or School District ( Hedman v. Rochester , 64 AD2d 817, 817-818 [4th Dept 1978] ).
Thus the Estate's second cause of action is dismisse d as against the City of Rochester and John Does 1-10. .
c. The City of Rochester's Motion to Dismiss the Estate's Third and Fourth Causes of Action against it for violation of Trevyan's "substantive due process" rights actionable under 42 USC § 1983
The Third Cause of Action in the Estate's complaint alleges that the defendant City of Rochester (in conjunction with the RCSD) (and some unnamed employees, John Does 1-10, who may or may have not worked for the City of Rochester) violated Trevyan's "substantive due process rights in that it failed to include in Trevyan's annual Individual Educational Plan ("IEP") the full extent of his mental health problems, and failed to follow through with the recommendations it had made.
The Fourth Cause of Action alleges that the City willfully failed to report and identify Trevyan as missing, "which hindered and delayed efforts to locate and protect the Decedent."
Neither claim can go forward, as it is a matter of state law that the City of Rochester has no responsibility for, or involvement in, the IEP process (Ed. L. §§ 4401-a, 4402; 20 USC § 1414 ), and because it is not responsible for student attendance at RCSD schools (Ed. Law § 2554).
Moreover, as discussed above, it is well-settled that a municipality may not be held liable 42 USC 1983 unless the allegation involves an "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy" ( Monell v. Dept. of Social Servs. , 436 US 658, 694 [1978] ).
But these two claims do not allege that Trevyan was injured by any City policy, but by unnamed individuals' failure to act in accordance with policy.
Thus, the Third and Fourth Causes of Action brought by the Estate against the City are dismissed.
Even if the City had some responsibility for actions taken by the RCSD, the Third and Fourth Causes of Action would nonetheless be dismissed as against it, because, as discussed above, the allegations do not state a cause of action for a substantive due process violation under 42 USC § 1983.
CONCLUSION
The motions to dismiss the Houston action brought by all parties are GRANTED and the Houston action is DISMISSED in its entirety.
The motion of the City of Rochester to dismiss the claims against it brought by the Estate of Trevyan Rowe, is GRANTED and the claims are DISMISSED.
The motion of the Rochester City School District to dismiss a portion of the First Cause of Action is DENIED; the motion to dismiss the Second, Third and Fourth Causes of Action is GRANTED .
Although there has been no appearance by and no service on John Does 1-10 and no appearance by counsel on their behalf, all actions against those unnamed persons is DISMISSED sua sponte .
SO ORDERED