Plaintiff's claims of alleged misconduct by City University of New York personnel and other named defendants must be brought in the Court of Claims

Supreme Court granted the several defendants' motions to dismiss the Plaintiff complaint was unanimously affirmed Appellate Division, without costs.

Rejecting Plaintiff's assertion that Supreme Court had jurisdiction over Queensborough Community College, where Plaintiff was employed, because it is a community college rather than a senior college, the Appellate Division explained:

1. Supreme Court lacked subject matter jurisdiction over the claim against defendant City University of New York [CUNY] because any claims of misconduct by CUNY's counsel with respect to the selection of the arbitrator must be brought in the Court of Claims;

2. It must reject Plaintiff's assertion that Supreme Court has jurisdiction over Queensborough Community College, where Plaintiff was employed, because "The gravamen of [Plaintiff's] complaint is not that Queensborough terminated his employment, but that the Office of the General Counsel, a part of CUNY's central administration, wrongfully selected one of the named defendants as the arbitrator in the matter,* noting the Court of Claims has exclusive jurisdiction over tort claims based on conduct by a CUNY senior college [see Education Law §§6202[5] and 6224[4][b]; and

3. The Plaintiff's complaint is barred on the basis of res judicata and collateral estoppel as in earlier appeals Plaintiff sought to set aside the arbitration award and Plaintiff's current claims are based on the same transaction as in the earlier action, and are therefore barred even though they are based upon different theories.

Further, said the Appellate Division, dismissal of the complaint is warranted on other grounds, as well. The court opined that (a) the American Arbitration Association and the designated arbitrator "are protected by immunity, as their acts were performed in their arbitral capacity", citing Trojan v Cipolla & Co., 172 AD3d 569 and (b) Plaintiff "fails to plead, as is necessary to sustain a claim against an unincorporated association, that the entire membership authorized and later ratified its actions, noting the Court of Appeals ruling in Palladino v CNY Centro, Inc., 23 NY3d 140.**

* The Appellate Division noted that Education Law §6202[5] defines "senior college" to include "an administrative institution".

** The Appellate Division noted Supreme Court "also properly dismissed [Plaintiff's] aiding and abetting fraud causes of action as against both CUNY and PSC [Professional Staff Congress/CUN] because they were not pleaded with the requisite particularity", citing CPLR §3016[b].

Click HERE to access the Appellate Division's decision posted on the Internet.

 

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General security measures and providing adequate supervision critical considerations in an incident involving an alleged sexual assault of a student by another student

This action was brought by a high school student [Plaintiff]. Plaintiff alleged that she was sexually assaulted by another high school student while at the school. Plaintiff, suing individually and Plaintiff's mother and natural guardian, commenced this action against the "Board of Education, et al." [Defendants], to recover damages for personal injuries.

The Defendants moved for summary judgment dismissing Plaintiff's complaint. Supreme Court denied the Defendants' motion for summary judgment and Defendants appealed the court's decision. The Appellate Division affirmed Supreme Court's ruling "insofar as appealed from, with costs" indicating:

1. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact*;

2. "Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision ... The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians;

3. "In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated; and

4. "Actual or constructive notice to the school of prior similar conduct is generally required ... [and] an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act".

The Appellate Division, noting that Defendants "established that they lacked actual or constructive notice of the assailant's potential for causing harm; submitted evidence that [Plaintiff] and the assailant had no previous significant interaction; and that the assailant's disciplinary record did not include any sexually aggressive behavior", found Defendants "failed to establish as a matter of law that the general security measures at the school were sufficient under the circumstances and that the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision."

The Appellate Division concluded that "under the circumstances", Supreme Court properly denied the Defendants' motion for summary judgment dismissing Plaintiff's complaint.

* A failure to make such prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers

Click HERE to access the Appellate Division's decision posted on the Internet.