School District's motion to dismiss the causes of action alleging a student was sexually molested by an employee of the school district denied

In this action to recover damages, the complainant [Plaintiff] alleged that he was sexually molested by his guidance counselor, who was an employee or special employee of the defendant [School District].  Supreme Court denied School District's motion to dismiss the causes of action alleging "negligence, gross negligence, negligent hiring, retention, supervision, and direction, and breach of fiduciary duty insofar as asserted." 

The School District appealed the Supreme Court's ruling.

Explaining that on a motion to dismiss for failure to state a cause of action under CPLR §3211(a)(7) the Appellate Division said that a 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" and denied School District's appeal.*

The amended complaint alleged, among other things, that the School District had prior notice of the guidance counselor's propensity to sexually molest students and that the School District "nevertheless permitted the guidance counselor to meet one-on-one with students, including the Plaintiff, and that the School District thereby negligently failed to prevent the guidance counselor from sexually molesting the Plaintiff."

Further, said the Appellate Division, Supreme Court properly found that the Plaintiff sufficiently pleaded causes of action alleging negligence, gross negligence, and negligent hiring, retention, supervision, and direction, citing Moskowitz v Masliansky, 198 AD3d 637 and other decisions.

* The Appellate Division noted "[c]auses of action alleging negligent hiring, negligent retention, or negligent supervision are not statutorily required to be pleaded with specificity".

Click HEREto access the Appellate Division's decision.

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Application to remove an individual serving as "trustee and president" of the school board

An applicant sought to have the Commissioner of Education remove the President of the school board for a number of reasons including "consistently arguing with parents at almost every [board] meeting” and for "abstaining from a school board vote."

Commissioner Rosa dismissed the appeal for two procedural reasons. 

First Dr. Rosa ruled that the application must be dismissed for improper service.

§275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. In this instance the Commissioner found that the record indicates that Petitioner failed to properly serve the petition upon the President, who is the sole respondent in the application but left the petition with a “receptionist” at the school board’s district office whom the Petitioner knew to be “responsible for receiving district mail.” §275.8(a), however, of the Commissioner’s regulations applicable to removal proceedings pursuant to Commissioner’s regulation §277.1, requires that the petition be personally served upon each named respondent. 

The President contended that she was never personally served with a copy of the petition and Petitioner did not challenge this contention.  Accordingly the Commissioner ruled that the petition "must be dismissed for improper service," citing Decision of the Commissioner of Education No. 17,391. 

In addition Dr. Rosa held that the application must be dismissed for lack of the specialized notice required by §277.1 (b) of the Commissioner’s regulations. This regulation, said the Commissioner, sets out "the specific notice required for removal applications pursuant to Education Law §306, which is distinct from the notice required under §275.11(a) for appeals pursuant to Education Law §310."

The Commissioner explained that the notice of petition "secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application." Accordingly, the Commissioner held that such situations "a removal application that does not include the specific notice required by 8 NYCRR 277.1(b) is fatally defective and must be denied."

Click HEREto access the text of the Commissioner's decision.