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.

 

New York State's Freedom of Information Law imposes a broad duty on government agencies to make their records available to the public

The Petitioner in this CPLR Article 78 action commenced this proceeding against the Village, and other named individuals, [Respondent], to compel Respondent to disclose records she had requested under New York State's Freedom of Information Law [FOIL] after the Village denied Petitioner's request for certain records.

Supreme Court denied the petition and dismissed the proceeding, holding that "[m]any of the items sought in the FOIL request [were] not records per se, but an open ended array of papers ... which are not maintained as records and are not readily identifiable or retrievable." Petitioner appealed Supreme Court's ruling.

Noting that Supreme Court determined that Petitioner failed to "reasonably describe the documents so that they [could] be located", the Appellate Division reverse the lower court's decision and remitted the matter to it "for further proceedings on the petition".

The principal questions presented to the Appellate Division by Petitioner's appeal:

1. Were the requested records "reasonably described" so as to allow the Village to locate and identify them?; and

2. Did the Respondent satisfy its obligations under FOIL by maintaining a public website, on which [it alleged] much of the information sought by the Petitioner could be found?

With respect to the identification of the records sought by Petitioner, the Appellate Division opined that questions of fact exist as to the Respondent's ability to locate, identify, and produce the records requested by the Petitioner, thereby precluding a summary determination of the petition by Supreme Court.

As to the issue concerning the ability of the Respondent to satisfy the mandates of FOIL via Internet sites, the Appellate Division held that "the mere availability of government records on a public website is insufficient to satisfy a request under FOIL for reproduction of such materials". The Appellate Division noted that Petitioner's FOIL request included certain materials pertaining to recusals and conflict-of-interest disclosures by members of a Village Commission, various Village Boards, and other Village entities.

In opposition to the petition, Respondents had submitted affidavits asserting that agendas and minutes of public meetings were available on the Village's website "and were capable of being searched by anyone, without the necessity of a FOIL request" and "the vast bulk of the records requested by the [Petitioner were] not maintained in any manner that would allow the responsive documents to be identified in any manner that would be possible for the Village to undertake."

The Appellate Division explained that the Legislature declared that "government is the public's business" and "[T]o promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public". Indeed, said the court, "[a]ll records of a public agency* are presumptively open to public inspection," and FOIL is to be liberally construed to achieve its purposes, citing Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d at 225; and Matter of Data Tree, LLC v Romaine, 9 NY3d 454, at 463).

Further, opined the Appellate Division, "the burden of proof rests solely with the [custodian of the record] to justify the denial of access to the requested records [and] this burden must be met 'in more than just a plausible fashion'".

Concluding that Supreme Court should not have denied the petition and dismissed the proceeding, the Appellate Division reversed the lower court's judgment "on the law," reinstated Petitioner's action and remitted the matter to the Supreme Court  for further proceedings in accordance the Appellate Division's decision and directed Supreme Court promulgate "a new determination of the petition thereafter."

* FOIL is applicable to “agency” records, but FOIL's definition of “agency” expressly excludes New York State's Judiciary and the New York State Legislature as agencies within the ambit of FOIL. See Public Officers Law §86[3].

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

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New York Open Government Guide. Authored by Michael J. Grygiel, Esq., this study focuses on New York State's Freedom of Information Law [FOIL]. Click HERE to access this resource posted on the Internet.

 

 

 

Selected links to items focusing on government operations posted on the Internet during the week ending November 10, 2023:

 

A Guide to the NYPD Hiring Process By Kevin Sheerin, Esq.

 

AI-Enabled Automation Streamlines Local Government Finance Finance automation, powered by artificial intelligence technology, is helping to save Mt. Lebanon, Pa., a significant amount of time and is simplifying the accounts payable process. READ MORE

 

Digital Cities 2023: Developing Modern, Citizen-Focused Services The 56 winning cities in this year’s awards from the Center for Digital Government focused their efforts on technology projects that impacts residents communitywide. READ MORE

 

Education Safety Summit Tackles Cybersecurity, Social Media The National Summit on K-12 School Safety and Security highlighted free cybersecurity resources for schools and explored how adults can work with children to address the mental health impacts of social media. READ MORE

 

Iowa Cyber Hub Program Works to Reach the Community Members of the community are encouraged to join a new program about cybersecurity awareness, specifically those who may not be aware of their digital risks or what to do about them. READ MORE 

 

New York City Launches Vulnerability Disclosure Program The city is inviting the public — especially developers and security researchers — to use a new platform to securely report potential vulnerabilities that they discover in city-owned websites and systems. READ MORE

 

NIST Puts Out Call for Participation in AI Consortium The National Institute of Standards and Technology has announced it is seeking participants to be part of a new consortium focused on developing evaluation methods for artificial intelligence systems. READ MORE

 

Police Chiefs Reimagine the Mission and Culture of Law Enforcement In recent years, the public perception of police culture has been defined by acts of violence against citizens. A group of chiefs and sheriffs are working to change the narrative by emphasizing a mission of service. READ MORE

 

The Future of Sustainable Cities: A Whole-of-Government Approach to Electric Vehicle Implementation EVs drive urban resilience: harnessing cross-government strategy and funding for sustainable transformation. READ MORE