Applicant for unemployment insurance benefits found to have provoked her discharge and thus deemed to have voluntarily left her employment without good cause and ineligible for benefits

A New York State Department of Labor Administrative Law Judge [ALJ] determined that the applicant for unemployment insurance benefits had provoked discharge from employment by a health care facility by refusing to comply with the the New York State Department of Health's COVID-19 vaccine mandate in the absence of a medical exemption. 

The Unemployment Insurance Appeal Board affirmed, adopting the ALJ's findings and conclusions. 

Claimant appealed the Appeal Board's determination. The Appellate Division sustained the Board's decision, noting "... the record fully supports the ALJ's finding, adopted by the Board," that "claimant failed to provide any documentation substantiating that she was advised by a doctor or medical professional to not get the COVID-19 vaccine." 

 

Matter of Smith (Roswell Park Cancer Inst. Corp.--Commissioner of Labor)

2024 NY Slip Op 02958

Decided on May 30, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:May 30, 2024

CV-23-0820

In the Matter of the Claim of Nicole L. Smith, Appellant. 

Roswell Park Cancer Institute Corporation, Respondent. 

Commissioner of Labor, Respondent.

Calendar Date:April 30, 2024
Before:Clark, J.P., Aarons, Pritzker, Lynch and Ceresia, JJ.

Sanders & Sanders, Cheektowaga (Harvey P. Sanders of counsel), for appellant.

Letitia James, Attorney General, New York City (Dennis A. Rambaud of counsel), for Commissioner of Labor, respondent.

Lynch, J. 

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 12, 2022, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily separated from employment without good cause.

Claimant, a medical records associate who worked in person for the employer, a comprehensive cancer care hospital, was advised by the employer in late August 2021 and again on September 13, 2021 that, to remain employed at its healthcare facility, she was required by mandate of the Department of Health to be vaccinated for COVID-19 by September 27, 2021 (see 10 NYCRR former 2.61 [c]). Although claimant's worksite was a building on the hospital campus that was separate from the main hospital, claimant came into regular contact with other hospital staff and patients. Claimant submitted to the employer a request for medical exemption from the vaccine mandate on October 3, 2021, signed by her treating medical doctor, which listed her diagnosis for psoriasis; the employer denied the medical exemption because the exemption form did not identify any contraindications or precautions that would have prevented claimant from receiving the vaccine. 

Claimant's subsequent request for a religious exemption from the vaccine mandate was provisionally approved, pending a legal determination, but was later denied in November 2021 based upon the absence of a religious exemption in the state mandate (see 10 NYCRR former 2.61 [c], [d]; Matter of Parks [Commissioner of Labor], 219 AD3d 1099, 1100-1101 & n 1 [3d Dept 2023]). The employer extended the deadline to get the vaccine to December 6, 2021 and, on that day, claimant applied for an accommodation, requesting weekly COVID-19 testing in lieu of the vaccine; the employer denied that request on the ground that personnel working in a healthcare facility were required to be vaccinated under the state mandate unless granted a medical exemption, and she was suspended without pay on December 7, 2021. She subsequently filed a claim for unemployment insurance benefits.

The Department of Labor issued an initial determination finding that claimant was ineligible for unemployment insurance benefits and, after a hearing, an Administrative Law Judge (hereinafter ALJ) affirmed the denial of benefits, finding that claimant had voluntarily separated from her employment without good cause. The ALJ found that claimant had provoked her own discharge by refusing to comply with the vaccine mandate in the absence of a medical exemption. 

The Unemployment Insurance Appeal Board affirmed, adopting the ALJ's findings and conclusions,[FN1] prompting this appeal.

We affirm. "Whether a claimant has good cause to leave employment is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence" (Matter of Antonaros [Commissioner of Labor], 223 AD3d 1077, 1077 [3d Dept 2024] [internal quotation marks and citations omitted]). "Provoked discharge is a narrowly [*2]drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him or her," and whether an employee has provoked a discharge is also a factual issue for the Board (Matter of Rosseychuk [City of New York-Commissioner of Labor], 137 AD3d 1435, 1436 [3d Dept 2016] [internal quotation marks, ellipsis, brackets and citations omitted]).

Contrary to claimant's argument, she did not demonstrate that the vaccine mandate did not apply to her. "Covered entities" under the mandate include hospitals and treatment centers (10 NYCRR former 2.61 [a] [1] [i]) and the mandate applied to all "[p]ersonnel," defined as "all persons employed . . . by a covered entity . . . including but not limited to employees . . . who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease" (10 NYCRR former 2.61 [a] [2]). The vaccine requirement was not limited to those performing patient care and claimant's own testimony established that she had daily contact with coworkers who would go into the main hospital building. The ALJ and the Board credited the testimony of the employer's manager of employee labor relations that claimant, while assigned to an outbuilding on the hospital campus, came into contact with patients, coworkers and visitors.

Moreover, it is undisputed that claimant was advised of the vaccine mandate and provided ample time in which to comply and that she was afforded an opportunity to apply for a medical exemption, the only exemption recognized by the mandate (cf. Matter of Antonaros [Commissioner of Labor], 223 AD3d at 1078-1079). She was further provided a full opportunity on multiple hearing dates to submit documentation substantiating her claims that she had been advised not to get the vaccine or that the vaccine would be detrimental to her health based upon her preexisting health conditions or medications. Claimant testified that she declined to comply with the vaccine for medical reasons, citing her numerous medical conditions including psoriasis, infertility and a blood clot in her foot and medications she was taking including antibiotics and steroids, relying on articles, television and media reports and her own research. Although directly asked several times, claimant did not testify that she had been advised by a medical provider against the vaccine based upon her medical conditions, treatment or medications. The medical exemption form signed by claimant's treating physician merely listed her diagnosis of psoriasis, and did not advise against the vaccine or indicate that it was contraindicated for or would be detrimental to her medical conditions. As such, the record fully supports the ALJ's finding, adopted by the Board, that "claimant failed to provide any documentation substantiating that she was advised by a doctor or medical [*3]professional to not get the COVID-19 vaccine." To the extent that claimant argues that, for medical reasons, she should have been granted an accommodation allowing weekly testing rather than the vaccine, this request was likewise not supported by credible medical documentation or testimony.

Under these circumstances, substantial evidence supports the Board's conclusion that claimant provoked her discharge and, thereby, voluntarily left her employment without good cause and was disqualified from receiving unemployment insurance benefits (see Matter of Parks [Commissioner of Labor], 219 AD3d at 1102; see also Matter of Moquete [Commissioner of Labor], 224 AD3d 1074, 1075 [3d Dept 2024]).

Clark, J.P., Aarons, Pritzker and Ceresia, JJ., concur.

ORDERED that the decision is affirmed, without costs. 

Footnotes

Footnote 1: During the hearing, the ALJ expanded the inquiry from misconduct, the basis for the initial determination, to voluntary separation, and afforded the parties additional time to address that issue. Given the finding that claimant had voluntarily separated from her employment without good cause, the ALJ and the Board did not address the issue of misconduct.

Decisions of the Commissioner of Education: Decision of the Commissioner Number 18,414 addresses restrictions placed on an individual by a school district with respect to such individual's communicating with school district employees and access to school property

In her Decision No. 18,414, the Commissioner of Education noted that a school board may impose reasonable restrictions on individuals’ communications with school employees or access to school property and a school board’s determination in this regard will only be reversed if it is arbitrary or capricious. Further, the Commissioner noted that "In an appeal to the Commissioner of Education challenging such restrictions the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief."

Decision No. 18,414 of the Commissioner of Education is set out below.

Appeals of V. F.-G., on behalf of her child, from action of the Board of Education of the City School District of the City of Ithaca regarding a denial of access to school property. 

Decision No. 18,414 of the Commissioner of Education

[Posted on the Internet on June 3, 2024]

Bond, Schoeneck & King PLLC, attorneys for respondent, Kate I. Reid, Esq., of counsel 

ROSA., Commissioner. -- In two separate appeals, petitioner appeals from restrictions imposed by the Board of Education of the City School District of the City of Ithaca (“respondent”) concerning her ability to contact respondent and access its facilities.  Because the appeals arise out of similar facts and present similar issues of law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed.

At all times relevant to this appeal, petitioner’s child (the “student”) attended seventh grade at one of respondent’s middle schools.  By letter dated September 4, 2023, respondent restricted petitioner’s communications with district staff and visitation pursuant to its code of conduct.  Respondent indicated that, “over the course of the past several years,” petitioner’s communications with the district had become “excessive, aggressive, [and] accusatory,” resulting in “staff spending an overwhelming amount of time engaging” with petitioner.  Accordingly, respondent limited petitioner’s communications with district staff to a weekly email with the deputy superintendent.  Respondent further prohibited petitioner from entering onto district property without written permission, subject to medical emergencies or pick up/drop off.  Respondent warned petitioner that any noncompliance with these directives could result in further restrictions.  The first appeal ensued.

Thereafter, petitioner exceeded the conditions imposed upon her email communications with district staff.  Additionally, on October 5, 2023, petitioner arrived at the middle school without prior authorization and, according to respondent, “refused to leave when directed to do so.”  In response, respondent indicated that it would contact law enforcement if petitioner again violated its directives.

On November 8, 2023, petitioner and the student entered respondent’s property for a school-sponsored event.  Petitioner had not obtained permission from the deputy superintendent prior to attending and was asked to leave by a staff member.  After petitioner refused, respondent called 911 and petitioner was escorted from the premises.  The second appeal ensued.

Petitioner contends, among other things, that the September 2023 letter restrictions are retaliatory and impair the student’s right to a public education.  Petitioner seeks removal of these restrictions.  Petitioner additionally challenges the placement recommendation of respondent’s Committee on Special Education (“CSE”), arguing that the student should instead attend a program operated by her Board of Cooperative Educational Services (BOCES).

Respondent argues that the appeals should be dismissed for lack of the notice required by 8 NYCRR 275.11.  Respondent further contends that the appeals should be dismissed because the September 2023 property and communication restrictions were reasonable in light of petitioner’s behavior, and that petitioner’s challenge to the CSE’s recommendation should be dismissed for lack of jurisdiction. 

First, I must address respondent’s procedural challenge.  Respondent asserts that the appeals should be dismissed for lack of the notice required by 8 NYCRR 275.11 (a).  Although the petitions do not contain the requisite notice, section 275.11 of the Commissioner’s regulations provides that such a failure does not warrant dismissal of an appeal.  Moreover, the record in both appeals establishes that, despite the absence of such language, respondent was aware of its obligation to respond and did so in a timely manner.  Accordingly, I decline to dismiss the appeals on this basis.

Next, to the extent petitioner challenges the recommendation of respondent’s CSE, these claims must be dismissed for lack of jurisdiction.  The record reflects that, at the time of the events described herein, the student received services pursuant to the Individuals with Disabilities Education Act (IDEA).  Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC § 1415), Education Law § 4404, and section 200.5 (j) of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of C.B., 62 Ed Dept Rep, Decision No. 18,238; Appeal of a Student with a Disability, 52 id., Decision No. 16,375; Appeal of S.A.M., 44 id. 481, Decision No. 15,238).

Turning to the merits, school boards may impose reasonable restrictions on individuals’ communications with school employees or access to school property (Appeal of C.W., 62 Ed Dept Rep, Decision No. 18,253; Appeal of Brockway, 62 id., Decision No. 18,218; Appeal of Anonymous, 48 id. 503, Decision No. 15,931).  A school board’s determination in this regard will only be reversed if it is arbitrary or capricious (Appeal of R.G., 62 Ed Dept Rep, Decision No. 18,196; Matter of Spinowitz, 18 id. 13, Decision No. 9,719).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884). 

Section 5300.70 of respondent’s code of conduct governs the behavior of visitors on school property.  This section states that visitors may not “[d]isrupt the orderly conduct of classes, school programs or other school activities”; “[i]ntimidate or harass any person”; or “[e]nter any portion of the school premises without authorization.”  Failure to follow these rules may result in a ban from school district property.

The record establishes a long history of petitioner’s escalating violations of respondent’s code of conduct, which culminated in the restrictions in the September 2023 letter.  Respondent initially prohibited petitioner’s access to district facilities following a verbal altercation between petitioner and respondent’s staff in July 2022.  During this altercation, petitioner raised her voice numerous times, pointed her finger at staff members, and loudly told respondent’s staff to “get it together” among other statements.  As a result, respondent prohibited petitioner from accessing respondent’s facilities for the remainder of the summer school term.

The frequency and disruptiveness of petitioner’s emails to respondent increased after July 2022.  Specifically, petitioner sent frequent emails that accused respondent’s employees of “traumatiz[ing]” and “endanger[ing]” her and the student; encouraging children into “manipulating” their parents; and ignoring her concerns about accommodations for the student and other children with disabilities.  Thus, respondent imposed further restrictions in letters dated September 6, 2022 and January 23, 2023.  These included establishing a point of contact for petitioner’s correspondence and prohibiting petitioner from accessing respondent’s facilities without prior written permission.

Neither of these restrictions curbed petitioner’s harassing communications.  Petitioner continued to send respondent frequent emails accusing its employees of “kidnapping,” “trafficking,” and “abusing” children.  As a result thereof, respondent imposed the September 2023 communication restrictions at issue in these appeals.

I find that respondent’s property restrictions were “reasonably and narrowly limited in scope” based on petitioner’s persistent, intentional violations of district policy 5300.70 and the directives issued in connection therewith (Appeal of Anonymous, 48 Ed Dept Rep 503, Decision No. 15,931).  I further find that respondent imposed reasonable time and manner restrictions on petitioner’s ability to communicate with school officials given the numerous, inflammatory emails sent over the past several years (compare Appeal of Brockway, 62 Ed Dept Rep, Decision No. 18,218 [total prohibition on individual’s communication with a superintendent that did not adequately consider the “form, intended audience, or content” of his communications held inconsistent with the First Amendment]).  Accordingly, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.

I have reviewed the parties’ remaining contentions and have found them to be without merit.

THE APPEALS ARE DISMISSED.

In order to qualify for retirement benefits under Retirement and Social Security Law Article 15, an applicant for such benefits must demonstrate that he or she actually retired from public service employment in the first instance

 

Matter of Strzepek v DiNapoli

2024 NY Slip Op 02962

Decided on May 30, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:May 30, 2024

CV-23-1429

[*1]In the Matter of David Strzepek, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Calendar Date:April 23, 2024
Before:Pritzker, J.P., Reynolds Fitzgerald, Ceresia, McShan and Mackey, JJ.

Longstreet & Berry, LLP, Fayetteville (Michael J. Longstreet of counsel), for petitioner.

Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondent.

Pritzker, J.P.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County), to review a determination of respondent denying petitioner's application for Retirement and Social Security Law article 15 service retirement benefits.

Petitioner worked as a correction officer for the Department of Corrections and Community Supervision from February 1988 until July 2019. On June 14, 2019, petitioner also began working as a substitute bus driver on an as-needed basis for the Whitesboro Central School District. Less than one month later, petitioner filed an application with the New York State and Local Retirement System seeking service retirement benefits under Retirement and Social Security Law article 15 and listing the effective date of his retirement as July 26, 2019.^[FN1] In response, the Retirement System sent a letter to the school district indicating that petitioner had applied for retirement, that the effective date thereof would be July 26, 2019 and that the day prior thereto would be the last day that petitioner could appear on the school district's payroll. The Retirement System also requested that the school district complete a statement of accrued payments and leave credits — once petitioner had received his final payment — for purposes of calculating petitioner's pension benefit.

As relevant here, the application filed by petitioner contained the following advisement: "Your paid public employment must cease at the time of your retirement. There are laws governing employment after retirement, and if you plan to be employed by or contract with a public employer, it is important for you to know about them" (emphasis omitted). The application further provided that the failure to comply with the pertinent laws could result in a suspension or diminishment of benefits or the termination of the member's retirement. A July 23, 2019 letter from the Retirement System providing petitioner with an estimate of his retirement benefits similarly advised petitioner that he "must terminate all public employment before [his] retirement date" and that if he was "considering returning to public service in New York State after retirement, [he] should be aware of the laws governing post-retirement employment." Despite these advisements, petitioner continued to work on an as-needed basis for the school district — with no break in service — until he suffered a heart attack on January 31, 2020. In this regard, although petitioner apparently did not work on the effective date of his retirement, he nonetheless remained on the school district's payroll and list of available substitute bus drivers and failed to tender a resignation letter prior to his retirement date. Indeed, subsequent correspondence with the school district revealed that petitioner did not advise the school district of his retirement, that such retirement was not processed through the school district's payroll system and that petitioner's sole appointment by [*2]the school district occurred when he began work as a substitute bus driver in June 2019, i.e., he was not reappointed to this position after July 26, 2019.

Beginning in May 2019, respondent's pension integrity bureau began investigating retirement applications tendered by correction officers who predominately worked under Retirement and Social Security Law article 14 but were seeking benefits under Retirement and Social Security Law article 15. By letter dated August 18, 2021, respondent's pension integrity bureau informed petitioner that, upon reviewing his application, petitioner was "not eligible to retire under the [a]rticle 15 plan because [he] did not have a bona fide termination from employment prior to the effective date of his retirement (i.e., July 26, 2019)." A hearing ensued, at the conclusion of which the Hearing Officer denied petitioner's application finding, among other things, that there was no genuine termination of his employment with the school district. Respondent upheld the Hearing Officer's decision, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.

The crux of the parties' dispute upon review centers upon whether Retirement and Social Security Law article 15 requires an applicant to actually stop working for a public employer in order to obtain retirement benefits. "[Respondent] is vested with the exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Tamucci v DiNapoli, 133 AD3d 960, 961 [3d Dept 2015] [internal quotation marks, brackets and citations omitted]; see Matter of Sawma v DiNapoli, 139 AD3d 1273, 1274 [3d Dept 2016], appeal dismissed 28 NY3d 1053 [2016]). "When presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature" (Matter of Walsh v New York State Comptroller, 34 NY3d 520, 524 [2019] [internal quotation marks and citations omitted]; see Matter of Digbasanis v Pelham Bay Donuts Inc., 224 AD3d 1047, 1048 [3d Dept 2024]). "[A]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Matter of Grube v Board of Educ. Spencer-Van Etten Cent. Sch. Dist., 194 AD3d 1222, 1225 [3d Dept 2021] [internal quotation marks and citations omitted]; see Matter of Turdo v Assessor of the Town of Vestal, N.Y., 205 AD3d 1102, 1103 [3d Dept 2022]). "In the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase" (Matter of Walsh v New York [*3]State Comptroller, 34 NY3d at 524 [internal quotation marks and citations omitted]; see Matter of Schwabler v DiNapoli, 194 AD3d 1235, 1237 [3d Dept 2021]). "Notably, courts will not disturb respondent's application and interpretation of relevant statutes unless they are irrational or contrary to the plain language of the statutes" (Matter of Graziose v DiNapoli, 137 AD3d 1452, 1453 [3d Dept 2016] [internal quotation marks, brackets and citations omitted]).

Retirement and Social Security Law article 15 does not define the term "retirement" (see Retirement and Social Security Law § 601) and, therefore, we employ the commonly understood meaning thereof, which is "to withdraw from one's position or occupation" or to "conclude one's working or professional career" (Merriam-Webster.com Dictionary, retirement [https://www./merriam-webster.com/dictionary/retirement]).^[FN2] Against that backdrop, we have no quarrel with the proposition that, in order to qualify for benefits under Retirement and Social Security Law article 15, an applicant such as petitioner indeed must demonstrate that he or she actually retired from public service employment in the first instance.^[FN3] We are similarly persuaded that it is entirely rational and reasonable for respondent to require that such retirement be genuine, i.e., the applicant must demonstrate that there has been a legitimate cessation or termination of employment. Contrary to petitioner's assertion, simply filing an application for benefits, selecting a retirement date and abstaining from performing services for the employer on the effective date thereof does not constitute a legitimate retirement — particularly where, as here, the applicant in question remains on the employer's payroll and subsequently continues to perform services for the employer. Indeed, adopting petitioner's strained definition of retirement would render meaningless those provisions of the Retirement and Social Security Law governing a retired member's return to or re-employment in public service (see Retirement and Social Security Law §§ 101 [a]; 210 [a]; 211, 212).

In light of the foregoing, we find that respondent's interpretation of the term "retirement" is entirely reasonable and, given that petitioner continued to work for the school district after the retirement date selected, substantial evidence supports respondent's determination that petitioner did not actually retire from service on July 26, 2019. Accordingly, respondent properly denied petitioner's application for benefits. Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Reynolds Fitzgerald, Ceresia, McShan and Mackey, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Footnotes

Footnote 1: Retirement System members who retire as correction officers are entitled to benefits under Retirement and Social Security Law article 14, whereas members employed by certain other public employers, including school districts, are entitled to benefits under Retirement and Social Security Law article 15 (see Retirement and Social Security Law §§ 504 [e]; 600 [2] [a]). However, and according to respondent, if a former correction officer retires after service with an article 15 employer, that individual's years of service under article 14 are considered in the article 15 retirement benefit calculation and, in some instances, the benefits available under article 15 may be more advantageous.

Footnote 2: Although the parties debate the applicability of various federal statutes, regulations and cases, resort to these materials is unnecessary under our established principles of statutory interpretation.

Footnote 3: This commonsense — if not self-evident — proposition does not, as petitioner contends, impose a new standard or retroactive requirement upon those seeking benefits under Retirement and Social Security Law article 15.

 

"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" (Mirand v City of New York, 84 NY2d 44, 49; see D.M. v Yonkers City Sch. Dist., 220 AD3d 672). "Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students" (Mirand v City of New York, 84 NY2d at 49; see R.B. v Sewanhaka Cent. High Sch. Dist., 207 AD3d 607, 609).

Acosta v Yonkers Pub. Schs.

2024 NY Slip Op 03154

Decided on June 12, 2024

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 12, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
PAUL WOOTEN
BARRY E. WARHIT
LILLIAN WAN, JJ.

2023-02288
(Index No. 59761/20)

[*1]Karen Acosta, etc., respondent,

v

Yonkers Public Schools, appellant.

Matthew I. Gallagher, Corporation Counsel, Yonkers, NY (David P. Redmond of counsel), for appellant.

Denlea & Carton LLP, White Plains, NY (John L. Leifert of counsel), for respondent.

       DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated February 6, 2023. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff, as mother and natural guardian of her infant child, commenced this action against the defendant to recover damages for personal injuries the infant child allegedly sustained when, as a first-grade student, the infant child fell from a slide at a school playground during recess. The complaint asserted a cause of action alleging negligent supervision. The defendant moved for summary judgment dismissing the complaint, contending, among other things, that it provided adequate supervision of the infant child and, in any event, that any alleged negligence on its part was not a proximate cause of the infant child's injuries. In an order dated February 6, 2023, the Supreme Court denied the defendant's motion. The defendant appeals.

"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" (Mirand v City of New York, 84 NY2d 44, 49; see D.M. v Yonkers City Sch. Dist., 220 AD3d 672). "Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students" (Mirand v City of New York, 84 NY2d at 49; see R.B. v Sewanhaka Cent. High Sch. Dist., 207 AD3d 607, 609).

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the level of supervision it provided, which consisted of at least two school monitors for a group of approximately 30 children, was adequate (see Simonides v Eastchester Union Free Sch. Dist., 140 AD3d 728, 730; Calcagno v John F. Kennedy Intermediate Sch., 61 AD3d 911, 912; Navarra v Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 AD2d 211) and, in any event, that any alleged negligence on its part was not a proximate cause of the infant child's injuries (see Gonzalez v South Huntington Union Free Sch. Dist., 176 AD3d 920, 921; Ponzini v Sag Harbor Union Free Sch. Dist., 166 AD3d 914, 916). In [*2]opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.

DILLON, J.P., WOOTEN, WARHIT and WAN, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

 

Appellate Division held employee sufficiently alleged that, due to his race and/or gender, his sexual harassment complaint was not taken seriously or appropriately investigated by the employer and he was disciplined more harshly than other employees

Eustache v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2024 NY Slip Op 03228

Decided on June 13, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 13, 2024
Before: Singh, J.P., Moulton, Kapnick, Shulman, Rosado, JJ.

Index No. 153619/19 Appeal No. 998 Case No. 2022-01128

[*1]Jeffrey Eustache, Plaintiff-Appellant,

v

Board of Education of the City School District of the City of New York Also Known as The New York City Department of Education, et al., Defendants-Respondents.

Goddard Law PLLC, New York (Megan S. Goddard of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Josh Liebman of counsel), for The New York City Department of Education, respondent.

The Law Offices of Cory H. Morris, Central Islip (Cory H. Morris of counsel), for Sharon Lafia, respondent.

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered September 17, 2021, which, to the extent appealed from as limited by the briefs, granted defendant Board of Education of the City School District of the City of New York a/k/a The New York City Department of Education's (DOE) motion to dismiss to the extent of dismissing plaintiff's claims for vicarious liability for race discrimination and direct liability for race and gender discrimination, and granted defendant Sharon LaFia's motion to dismiss, unanimously modified, on the law, to deny DOE's motion to dismiss, and otherwise affirmed to the extent of dismissing plaintiff's claims for direct liability for race and gender discrimination against defendant Sharon LaFia, without costs.

Applying the lenient notice-pleading standard afforded to discrimination claims (Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009]), plaintiff alleged that he was subjected to race discrimination under the New York State Human Rights Law (State HRL) (Executive Law § 296) and New York City Human Rights Law (Administrative Code of City of NY § 8-107). Plaintiff alleged that defendant LaFia texted him inappropriate messages on multiple occasions, including by explicitly propositioning him to engage with her sexually and by making unwanted physical contact with him (see e.g. Crookendale v New York City Health & Hosps. Corp., 175 AD3d 1132 [1st Dept 2019]; see also La Porta v Alacra, Inc., 142 AD3d 851, 852 [1st Dept 2016]). LaFia's alleged comments about plaintiff's race, in the context of her sexual harassment, signaled her discriminatory views on race in the workplace (Hernandez v Kaisman, 103 AD3d 106, 114-115 [1st Dept 2012]). Moreover, the complaint sufficiently alleges facts that impute liability on DOE for failing to take immediate and appropriate corrective action after being notified of LaFia's conduct (see Administrative Code § 8-107[13][b]; see Doe v Bloomberg, L.P., 36 NY3d 450, 454-455 [2021]). Plaintiff also sufficiently alleges that, due to his race and/or gender, his sexual harassment complaint was not taken seriously or appropriately investigated by DOE and he was disciplined more harshly than other employees (see Petit v Department of Educ. of City of N.Y., 177 AD3d 402, 403 [1st Dept 2019]).

The race and gender discrimination claims against LaFia, however, were properly dismissed as plaintiff failed to sufficiently allege that she had any authority over the terms, conditions, or privileges of his employment (Kwong v City of New York, 204 AD3d 442, 446 [1st Dept 2022], lv dismissed 38 NY3d 1174 [2022]). The complaint alleges, among other things, that plaintiff took his students to several classrooms during the school day, including LaFia's, and that the school principal and assistant principals took disciplinary actions against him and set his schedule (see Melendez v New York City Tr. Auth., 204 AD3d 542 [1st Dept 2022]). Even crediting plaintiff's allegation that [*2]LaFia, rather than a student, reported his alleged viewing of inappropriate images in the classroom which led to his suspension, merely reporting such behavior is insufficient to show managerial or supervisory authority.

The Decision and Order of this Court entered herein on November 14, 2023 is hereby recalled and vacated (see M-1185 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 13, 2024