Opinion
Index No. 609221/2018 Mot. Seq. Nos. 01-MG 02-MD 03-MG
11-13-2018
COLLEEN MILLETT, Plaintiff, v. BROOKHAVEN-COMSEWOGUE UNION FREE SCHOOL DISTRICT, JOSEPH RELLA, as superintendent, JOSEPH CONIGLIONE, as principal, and DANA BUNDY, Defendants.
RAY, MITEV & ASSOCIATES, LLP Attys. for Plaintiff. DEVITT SPELLMAN BARRET,, LLP Attys. for Defendants- Brookhaven-Comsewogue, Rella&Coniglione RICHARD J. KAUFMAN, ESQ. Attys. for Defendan-- Bundy.
Unpublished Opinion
RAY, MITEV & ASSOCIATES, LLP Attys. for Plaintiff.
DEVITT SPELLMAN BARRET,, LLP Attys. for Defendants- Brookhaven-Comsewogue, Rella&Coniglione
RICHARD J. KAUFMAN, ESQ. Attys. for Defendan-- Bundy.
PRESENT: Han. JOSEPH A. SANTORELLI Justice of the Supreme Court.
SHORT FORM ORDER
JOSEPH A. SANTORELLI JUDGE.
Upon the following papers numbered 1 to ..1L read on this motion to dismiss, for a default judgment & leave to file late answer; Notice of Motion! Order to Show Cause and supporting papers 1 - 11 (#01) & 23 - 28 (#02); Notice of Cross Motion and supporting papers 29 - 41 (#03); Answering Affidavits and supporting papers 12 - 16 (#01); Replying Affidavits and supporting papers 17 - 22 (#01); Other, (and after hearing counsel in support and opposed to the motion) it is, Defendants, Brookhaven-Comsewogue Union Free School District, Joseph Rella, as superintendent, and Joseph Coniglione, as principal, hereinafter referred to collectively as "Comsewogue defendants", move for an order, pursuant to CPLR 3211 (a)(7), dismissing the plaintiffs causes of action asserted under the Dignity for All Students Act (Education Law ~ 10 et seq.), hereinafter referred to as "DASA", for intentional infliction of emotional distress and for punitive damages. Plaintiff opposes the motion in all respects. The plaintiff separately moves for an order granting a default judgment against defendant Dana Bundy. Defendant Bundy opposes that application and cross moves for an order extending the time to serve her answer.
The plaintiff commenced this action by filing a summons and complaint on May 14,2018. The plaintiff was a senior at Comsewogue High School and had an Individualized Education Plan, hereinafter referred to as an "IEP", during the 2016-2017 school year. The plaintiff claims that her mother contacted the school on January 27,2077 because she felt that the plaintiff was not receiving the services that were required under her IEP. On May 5, 2017 the plaintiff was placed on home instruction. The plaintiffs mother attended a meeting and was told by defendant Rella that he did not care about required precursors and measures. Rella further advised the plaintiffs mother that she could "ask for a meeting [but] I'm still suspending her and you won't get a meeting until after school is over... and she is not coming back here, she'll go to a BOCES center." It was later agreed upon that the plaintiff would attend periods 1-4 at school then complete her work in an alternative learning center. On May 8,2017 the plaintiff returned to school but found her disability to be too much and spoke with defendant Coniglione. Plaintiff was informed that Conighone would carry out defendant Rella's mandate and suspend her immediately with home instruction. Plaintiff also clam is that she was subjected to cyber bullying by defendant Bundy and was involved in a physical altercation with defendant Bundy in the school cafeteria.
Motion to Dismiss
To succeed on a motion to dismiss pursuant to CPLR 3211 for failure to state a cause of action, the court must determine whether, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, plaintiff can succeed upon any reasonable view of the facts stated (Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 754 N.E.2d 184,729 N.Y.S.2d 425 [2001]; see also Fowler, Rodrigue, Kingsmill, Flint, Gray & Chalos LLP v. Island Prop., LLC, 307 A.D.2d 953, 763 N.Y.S.2d 481 [2d Dept 2003], Bartlett v. Konne, 228 A.D.2d 532,644 N.Y.S.2d 550 [2d Dept 1996]). If 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 (see Wayne S. v. County of Nassau Dept. of Social Services, 83 A.D.2d 628, 441 N.Y.S.2d 536 [2d Dept 1981]). The documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim (see Estate of Menon v. Menon, 303 A.D.2d 622, 756 N.Y.S.2d 639 [ 2d Dept 2003], citing Leon v. Martine, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972,638 N.E.2d 511, Roth v. Goldman, 254 A.D.2d 405, 406, 679 N.Y.S.2d 92).
In the context of a CPLR 3211 motion to dismiss, the Court must take the factual allegations of the complaint as true, consider the affidavits submitted on the motion only for the limited purpose of determining whether the plaintiffs stated a claim, and in the absence of proof that an alleged material fact is untrue or beyond significant dispute, the Court must not dismiss the complaint (Wall Street Assocs. v. Brodsky, 257 A.D.2d 526,684 N.Y.S.2d 244 [1st Dept 1999], citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634-636). In making a determination whether the complaint sets forth a cognizable claim, evidentiary material may be considered to "remedy defects in the complaint" (see Dana v. Shopping Time Corp., 76 A.D.3d 992,908 N.Y.S.2d 114 [2d Dept 2010], quoting Rovello v. Orofino Realty Co., supra at 40 N.Y.2d at 636).
In Motta v. Eldred Cent. Sch. Dist., 141 A.D.3d 819,820 [3d Dept 2016], the Court held that
Initially, we find no reason to disturb Supreme Court's finding that DASA does not provide for a private right of action. There is no explicit private right of action in the statutory scheme nor can one be implied from the statutory language and the legislative history (see Education Law ¶ 10 et seq.; Carrier v. Salvation Army,
88 N.Y.2d 298, 302, 667 N.E.2d 328, 644 N.Y.S.2d 678 [1996]; Ovitz v. Bloomberg L.P., 77 A.D.3d515, 516, 909 N.Y.S.2d 710 [2010], aff'd 18NY3d 753, 967 N.E.2d 1170, 944 N.Y.S.2d 725 [2012]; Gandler v. City of New York, 57 A.D.3d 324, 325, 869 N.Y.S.2d 76 [2008]). DASA is intended to create and implement school board policies in order to "afford all students in public schools an environment free of discrimination and harassment" caused by incidents of "bullying, taunting or intimidation" (Education Law 9 10) "through the appropriate training of personnel, mandatory instruction for students on civility and tolerance, and reporting requirements" (People v. Marquan M., 24 N.Y.3d 1, 4,994 N.Y.S.2d 554, 19 N.E.3d 480 [2014]; see Education Law 9 13). To imply a private right of action would not further the legislative purpose or comport with the statutory scheme.
In C.T. v. Val. Stream Union Free Sch. Dta., 201 F.Supp.3d 307,326-327 [EDNY 2016], the Court held that
Plaintiffs' fifth cause of action alleges negligence per se arising from defendants-purported violation of New York's Dignity for All Students Act ("DASA".. Defendants oppose this argument, maintaining that there is no private right of action under DASA, though they acknowledge that the matter had not been addressed by a court in this District. (Mot. at 31-35.) However, subsequent to the completion of the briefing on this motion, two courts, one from the Northern District of New York and one from the New York Appellate Division, First Department,, considered whether DASA encompasses an implied private right of action and concluded that it does not. See Terrill v. Windham-Ashland-Jewett Central School District, No. 115CV0615GTSDJS, 176 F.Supp.3d 101, 2016 U.S. Dist. LEXIS 42904, 2016 WL 1275048, at *7 (N.D.N.Y. Mar. 31,2016) and Motta ex rel. Motta v. Eldred Cent Sch. Dist., No. 522416,141 A.D.3d 819,36 N.Y.S.3d239,2016N.Y.App.Div.LEXIS5249,2016WL3619331,at*1(N.Y.App.Div. July 7, 2016). Although these opinions are not binding, this Court agrees with their well-reasoned conclusions and similarly determines that there is no private right of action under DASA. As the Appellate Division in Motta ex rel. Motta v. Eldred Central School District recognized, "[t]here is no explicit private right of action in the statutory scheme nor can one be implied from the statutory language and the legislative history." 2016N.Y.App. Div. LEXIS 5249, 2016 WL 3619331, at *1; see also, e.g., Flagstar Bank, FSB v. State, 114 A.D.3d 138, 978 N.Y.S.2d 266, 273 (App. Div. 2013) (observing that "the Legislature clearly knew how to include a private right of action when it intended to do so, and the omission of any similar language in [the statutes in question] evinces a legislative intent not to provide for a private right of action"); Davis v. State, 91 A.D.3d 1356, 937 N.Y.S.2d 521, 523 (App. Div. 2012) ("It is beyond cavil that the Legislature knew how to include a private right of action in the
former statute if it intended to do so and, '[considering that the statute gives no hint of any private enforcement remedy for money damages,' we will not infer that the Legislature in fact intended to do so."1 (citing Mark G. v. Sabol, 93 N.Y.2d 710, 717 N.E.2d 1067, 695 N.Y.S.2d 730 (N.Y. 1999))). Therefore, because there is no private tight of action under DASA, summary judgment is granted in defendants' favor on the DASA claim.
In Matter of Gottlieb v. City of NY, 129 A.D.3d 724, 727 [2d Dept 2015], the Court held that
"[P]ublic policy bars claims sounding in intentional infliction of emotional distress against a governmental entity" (Lauer v. City of New York, 240 A.D.2d 543,5446659 N.Y.S.2d 57 [1997]; see Dillon v. City of New York, 261 A.D.2d 34,41,704 N.Y.S.2d 1 [1999]). Here, the individual respondents were only sued in their official capacities. Therefore, the petitioner could not and did not state a cause of action against them for intentional infliction of emotional distress. Accordingly, that branch of the respondents' motion which was to dismiss this cause of action was properly granted.
In Chanko v. Anu Broadcasting Cos. Inc., 27 N.Y.3d 46, 56 [2016], the Court held that
This Court has enumerated four elements of a cause of action for intentional infliction of emotional distress: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Howell v. New York Post Co., 81 N.Y.2d 115, 121, 612 N.E.2d 699, 596 N.Y.S.2d 350 [1993])." 'Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community' "(Howell, 81 N.Y.2d at 122 [internal quotation marks and citation omitted], quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303,448 N.E.2d 86, 461 N.Y.S.2d 232 [1983]).
In Bader's Residence for Adults v. Telecom Equip. Corp., 90 A.D.2d 764 [2d Dept 1982], the Court held that
we have frequently held that a demand for punitive damages does not amount to a separate cause of action for pleading purposes (see, e.g., Santos v. Security & Law Enforcement Employees, Council 82, AFSCME, AFL-CIO, 80 A.D.2d 554; Brandenberg v. Blue Cross & Blue Shield of Greater N.Y., 78 A.D.2d 534; Sanfilippo v. Metropolitan Life Ins. Co., supra; M.S.R. Assoc. v. Consolidated Mut. Ins. Co., 58 A.D.2d 858). Since the third cause of action demands punitive damages based upon allegations which are essentially the same as those set forth in the first
cause of action, it should have been dismissed.
The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has not pled a cause of action cognizable at law for DASA, intentional infliction of emotional distress, and punitive damages against the Comsewogue defendants. Plaintiff has failed to come forth with any information to counter the proof provided by the defendants that there is no private right of action under DASA, that the defendants are public entities being sued only in their official capacities for intentional infliction of emotional distress and that punitive damages is not a separate cause of action. Therefore the Comsewogue defendants' motion to dismiss is granted as to those three causes of action:
Motion for Default Judgment and Cross to Extend Time to Answer
Since defendant Bundy has satisfactorily demonstrated a reasonable excuse for the delay in serving response papers, in that her mother was misinformed that the school district would be defending her, and the existence of a potentially meritorious defense to the complaint, the branch of the motion for a default judgment against defendant Dana Bundy is denied. (See, generally, Blake v. United States of America, 109 A.D.3d 504, 505, 970 N.Y.S.2d 465 [2d Dept 2013]).
In view of the public policy favoring a resolution of cases on the merits, the existence of a potentially meritorious defense, the relatively short delay in serving an answer and the absence of prejudice, defendant Bundy's cross motion to extend the time to serve her answer is granted. The defendant's answer is deemed served upon the plaintiff (see Arias v. First Presbyterian Church, 97 A.D.3d 712,948 N.Y.S.2d 665 [2d Dept 2012]; see also Schonfeld v. Blue & White Food Products Corp., 29 A.D.3d 673, 814 N.Y.S.2d 711 [2d Dept 2006]).
ORDERED that a preliminary conference is hereby scheduled to be held on Thursday, January 10,2019 at 10:00 a.m., in the DCM courtroom 338 of the Hon. Alan D. Oshrin Supreme Court Building, 1 Court Street, Riverhead, New York. Counsel for the respective parties in this action are directed to appear at that time.
The foregoing constitutes the Decision and Order of this Court.