Supreme Court, Nassau County, July 16, 2019

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Laura Endrizzi of counsel), for defendant.

McAndrew Conboy & Prisco, LLP, Melville (Alexandra T. Busa of counsel), for plaintiff.

[*2]Motion by defendant Hicksville Union Free School District (HUFSD or District), pursuant to CPLR 3211 (a) (7), for an order dismissing the second and third causes of action in the complaint. Cross motion by the plaintiff to amend the complaint.

Plaintiff Angelina Collazo, as administratrix of the estate of her son, Angelo Javier Collazo, deceased, commenced this action against the defendant alleging, among other things, common-law negligence, wrongful death, and violation of the Dignity for All Students Act (DASA). By her complaint, plaintiff alleges that her son died after being struck by a train near the Hicksville Long Island Rail Road (LIRR) station in an apparent suicide.

Plaintiff served a notice of claim on the defendant HUFSD on January 3, 2018, and testified at a General Municipal Law § 50-h hearing on June 20, 2018. According to her testimony, Angelo's death occurred on November 2, 2017. The decedent sustained multiple blunt impact injuries when he was struck by a train on the LIRR Hicksville railroad tracks in the Town of Oyster Bay. Angelo was a student of the HUFSD who suffered from scoliosis and was severely bullied throughout his elementary education by his peers due to his appearance and mannerisms caused by his condition. When he entered Hicksville Middle School, a school located within the District, the bullying continued and progressively worsened. When the decedent reached the eleventh grade at Hicksville High School, also located within the District, he underwent a spinal surgery to correct his scoliosis. He returned to the high school on{**65 Misc 3d at 272} September 8, 2017, but the bullying continued. Administrators were notified of the situation, but the bullying did not subside. As a result of the persistent bullying, Angelo suffered both emotionally and academically, and in the end, took his own life.

The first count of the complaint is a negligence claim that seeks compensation for the physical, emotional and mental injuries suffered by the decedent prior to his death. Count I states that "[d]efendant HUFSD had a duty to supervise plaintiff's decedent" and "failed to adequately and properly supervise ANGELO JAVIER COLLAZO." The second cause of action is premised upon violation of the DASA. In particular, count II states that

"[p]ursuant to the Dignity for All Students Act (Education Law §§ 10-18), the defendant had the duty to, among other things, investigate all incidents of bullying and to take prompt action to prevent recurrence of the behavior, and ensure the safety of the student or students against whom such harassment, bullying or discrimination was directed" and that "[t]he [d]efendants failed to undertake such investigations and to take such prompt action as required under the statute to prevent the injuries sustained by ANGELO JAVIER COLLAZO."

The third cause of action is a wrongful death claim, stating that "as a result of the defendant's negligence, plaintiff's decedent, ANGELO JAVIER COLLAZO, was caused to sustain serious personal injuries resulting in his death." The final cause of action is a derivative claim and seeks compensation for plaintiff's loss of the services and society of her son sustained prior to his death.

In sum, according to plaintiff, the District failed to exercise adequate supervision over the deceased, and when notified of continuing bullying of the deceased by his fellow students, failed to timely implement adequate measures to stop the bullying.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must determine whether, from the four corners of the pleading, "factual allegations are discerned which taken together manifest any cause of action cognizable at law." (Salvatore v Kumar, 45 AD3d 560, 563 [2d Dept 2007], lv denied 10 NY3d 703 [2008], quoting Morad v Morad, 27 AD3d 626, 627 [2006].) Further, the pleading{**65 Misc 3d at 273} is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, and the plaintiff accorded the [*3]benefit of every possible favorable inference. (Leon v Martinez, 84 NY2d 83, 87-88 [1994].) However, "[w]hile the allegations in the complaint are to be accepted as true when considering a motion to dismiss . . . , 'allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration.' " (Garber v Board of Trustees of State Univ. of N.Y., 38 AD3d 833, 834 [2d Dept 2007], quoting Maas v Cornell Univ., 94 NY2d 87, 91 [1999].)

On this motion, the defendant HUFSD contends that the wrongful death claim must be dismissed as it did not have or breach any legal duty to prevent Angelo from taking his own life. Defendant contends that Angelo's death occurred after school hours, when it was not in control or custody of the decedent. Further, the defendant contends it did not have a special relationship with the deceased that would impose a duty while he was outside of the school's custody and control.

As a starting point, "[n]egligence arises from a breach of a legal duty, . . . and is not actionable unless it results in damage to a person to whom the legal duty is owed." (NY PJI3d 2:10 at 232 [2017].) A duty can arise "where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant's actual control of the third person's actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others." (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 233 [2001].) The key to existence of such a duty is that the "defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm" and that the "specter of limitless liability is not present because the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship." (Id.; see also Matter of New York City Asbestos Litig., 5 NY3d 486, 493-494 [2005].) "Foreseeability, alone, does not define duty—it merely determines the scope of the duty once it is determined to exist." (Hamilton, 96 NY2d at 232.)

"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{**65 Misc 3d at 274} dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated." (Mathis v Board of Educ. of City of N.Y., 126 AD3d 951, 952 [2d Dept 2015] [internal quotation marks omitted].)

Additionally, "the injuries sustained by a plaintiff must be proximately caused by the school's breach of its duty to provide adequate supervision." (Motta v Eldred Cent. Sch. Dist., 141 AD3d 819, 821 [3d Dept 2016]; see also Wood v Watervliet City School Dist., 30 AD3d 663, 664 [3d Dept 2006] ["(T)he test for causation is 'whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school's negligence' " (quoting Mirand v City of New York, 84 NY2d 44, 50 [1994])].)

However,

" '[a] school is not an insurer of the safety of its students' (Tarnaras v Farmingdale School Dist., 264 AD2d 391, 392 [1999]). Its duty of care stems from effectively taking the place of parents and guardians and is 'coextensive with and concomitant to its physical custody of and control over the child' (Pratt v Robinson, 39 NY2d 554, 560 [1976]; see Chainani v Board of Educ. of City of N.Y., 201 AD2d 693 [1994], affd 87 NY2d 370 [1995]). A school's custodial duty ceases once the student has passed out of its orbit of authority and the parent is perfectly free to reassume control over the child's protection (see Pratt v Robinson, 39 NY2d at 560). Generally, a school [*4]cannot be held liable for injuries that occur off school property and beyond the orbit of its authority (see Bertrand v Board of Educ. of City of N.Y., 272 AD2d 355 [2000])." (Molina v Conklin, 57 AD3d 860, 861-862 [2d Dept 2008]; see also Vernali v Harrison Cent. School Dist., 51 AD3d 782 [2d Dept 2008].)

[1] On the present record, the court finds that the plaintiff's claims for wrongful death premised on negligence of the defendant HUFSD must fail. Angelo's death occurred after school hours and off school premises, where the District did not have control over him. There is no allegation that school officials were on notice of the possibility of Angelo's suicide or were under a distinct duty to guard against it. (See Elissa v City of New York, 44 Misc 3d 526 [Sup Ct, Queens County 2014]{**65 Misc 3d at 275} [school could not be held liable for suicide occurring after release from school custody in the absence of a special duty owed to the decedent], citing Morgan-Word v New York City Dept. of Educ., 96 AD3d 1025 [2d Dept 2012].) To the extent that plaintiff's counsel argues that a statutory duty imposed by federal law eliminates the requirement that the death occur while Angelo was within the defendant's custody and control, the court notes that the proposed amended complaint does not reflect such a claim. The wrongful death cause of action remains premised solely on defendant's negligence. The statutory claims of the proposed amended complaint assert physical, mental and emotional injuries sustained by Angelo but do not tie his death to these violations. Accordingly, the court need not address the issue of whether such statutory violations can form the basis of a wrongful death claim under these circumstances. The court notes, however, that such a connection is doubtful. (See e.g. Begley v City of New York, 111 AD3d 5 [2d Dept 2013].)

In response to defendant's motion to dismiss, plaintiff cross-moves to amend her complaint. Plaintiff discontinues her DASA cause of action (see Eskenazi-McGibney v Connetquot Cent. Sch. Dist., 169 AD3d 8 [2d Dept 2018]) and seeks to add four new causes of action under section 504 of the Rehabilitation Act of 1973, title II of the Americans with Disabilities Act of 1990, title IX of the Education Amendments of 1972, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiff argues that defendant would not be prejudiced if she were granted leave to amend her complaint, and amendment should be freely granted.

New York courts have generally held that leave to amend should be freely given absent prejudice or surprise to the defendant. (Juerss v Millbrook Cent. Sch. Dist., 161 AD3d 967 [2d Dept 2018].) Notwithstanding these liberal standards, the decision to grant or deny a party's motion for leave to amend "is committed to the broad discretion of the court." (Yong Soon Oh v Hua Jin, 124 AD3d 639, 640 [2d Dept 2015].) In the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. (Id.)

Generally, claims under title II of the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act are analyzed identically. (See Preston v Hilton Cent. Sch. Dist., 876 F Supp 2d 235, 241 [WD NY 2012]; Rehabilitation Act of{**65 Misc 3d at 276} 1973, Pub L 93-112, tit V, § 504 [a], 87 US Stat 355, 394, codified at 29 USC § 794 [a], as amended; Americans with Disabilities Act of 1990, Pub L 101-336, tit II, § 202, 104 US Stat 327, 337, codified at 42 USC § 12132.) To state a prima facie cause of action under the relevant provisions of the Rehabilitation Act or the ADA, the plaintiff must show

" '(1) that [he] is a qualified individual with a disability; (2) that the defendants are subject to [the pertinent statute]; and (3) that [he] was denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or was otherwise [*5]discriminated against by defendants, by reason of [his] disability.' " (Preston, 876 F Supp 2d at 241.)

Denial of the opportunity to participate in or benefit from defendants' services does not require physical prevention from access; rather, a plaintiff may establish harassment by other students that is "so severe, pervasive, and objectively offensive, and that so undermines and distracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." (Preston, 876 F Supp 2d at 241, quoting Davis v Monroe County Bd. of Ed., 526 US 629, 650-651 [1999].) In short, a school district may be liable for ADA violations where its "response to known discrimination 'is clearly unreasonable in light of the known circumstances.' " (Preston, 876 F Supp 2d at 242, quoting Gant ex rel. Gant v Wallingford Bd. of Educ., 195 F3d 134, 141 [2d Cir 1999].)

A "disability" is defined as "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." (42 USC § 12102 [1]; see 29 USC § 705 [20] [B].) "Major life activities" are defined to include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." (42 USC § 12102 [2].)

[2] Here, plaintiff states that the deceased suffered from scoliosis with attendant physical limitations and manifestation and underwent a surgery. After the surgery, decedent had to wear a back brace, had to take medications, and was given an early pass to the school to avoid being hit by other students. It would be reasonable to infer from these allegations that this{**65 Misc 3d at 277} condition resulted in some impairment to his major life activities. Significantly, the defendant does not dispute that the deceased was disabled within the meaning of the ADA. Thus, as a threshold matter, Angelo was a qualified individual with a disability within the meaning of the Rehabilitation Act and the ADA. (See Spring v Allegany-Limestone Cent. Sch. Dist., 655 Fed Appx 25 [2d Cir 2016] [summary order].)

The amended complaint amplified by the notice of claim alleges that Angelo was bullied from elementary school through high school on account of his physical condition, and although his mother notified school officials of the incidents and had several conferences with them in regard to the bullying, no effective measures had been taken to prevent it. As a result, the deceased was reluctant to go to school and lost the opportunity to enjoy the educational resources he otherwise should have had access to and caused his academic development to suffer significantly. In one alleged instance, when the deceased had been bothered in English class by the same group of boys who had pulled his pants down in middle school, a guidance counselor promised to look into the matter, but removed the deceased from the class instead of the boys engaged in the bullying. Taking the plaintiff's allegations as true, she has stated a claim under the ADA and the Rehabilitation Act, and the motion will be granted with regard to those claims.

Next, in order to form the basis for a title IX claim against an educational institution, student-on-student harassment must be based upon gender. (Preston, 876 F Supp 2d at 243; Education Amendments of 1972, Pub L 92-318, tit IX, § 901, 86 US Stat 235, 373, codified at 20 USC § 1681 [a], as amended.) Again, a school district may be liable for deliberate indifference to such gender-based harassment. Thus, in order to constitute deliberate indifference to sexual or gender-based harassment of a student under title IX, a school's actions must be clearly unreasonable in light of the known circumstances. Title IX does not require schools to remedy peer harassment or to ensure that students conform their conduct to certain rules. It is not necessary, however, to show physical exclusion to demonstrate that [*6]students have been deprived by the actions of another student or students on the basis of sex. (Nungesser v Columbia Univ., 244 F Supp 3d 345 [SD NY 2017], appeal withdrawn 2017 WL 4404575 [2d Cir, July 10, 2017, No. 17-900].)

[3] In this circumstance, the plaintiff contends that the District was indifferent to sexual assault and/or harassment,{**65 Misc 3d at 278} citing in particular an occasion where other students pulled down the decedent's pants. However, neither the complaint nor the notice of claim reasonably suggest that Angelo was targeted for harassment because of his male gender. Accordingly, the motion to amend is denied with respect to plaintiff's title IX claim. (See Preston, 876 F Supp 2d at 243-244.)

When it comes to the 42 USC § 1983 claim, the Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." (See DeShaney v Winnebago County Dept. of Social Servs., 489 US 189, 194 [1989].) However, this clause "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." (Id. at 195.) Thus, as recognized by the Supreme Court in DeShaney, "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." (Id.)

There are two recognized exceptions to the DeShaney rule:

First, the State or its agents may owe a constitutional obligation to the victim of private violence if the State had a "special relationship" with the victim. Second, the State may owe such an obligation if its agents "in some way had assisted in creating or increasing the danger to the victim." (Matican v City of New York, 524 F3d 151, 155 [2d Cir 2008] [citations omitted], cert denied 555 US 1047 [2008]; P.W. v Fairport Cent. Sch. Dist., 927 F Supp 2d 76, 81 [WD NY 2013].)

Under the "state-created danger" exception to DeShaney, "a plaintiff seeking to state such a claim must show more than the State's general knowledge of a danger; he must show that the State assisted in 'creating or increasing the danger that the victim faced at the hands of a third party.' " (Campbell v Brentwood Union Free Sch. Dist., 904 F Supp 2d 275, 280 [ED NY 2012], quoting Matican, 524 F3d at 157.) Passive conduct, such as the failure to punish, does not fall within this exception; instead, there must be an affirmative act on the part of a defendant. (Pena v DePrisco, 432 F3d 98, 109-110 [2d Cir 2005]; compare Hemphill v Schott, 141 F3d 412 [2d Cir 1998] [police officers' actions in allowing store manager to join in pursuit of suspect and returning the manager's gun he then used to shoot plaintiff created or increased the danger], with Pitchell v Callan, 13 F3d 545 [2d Cir 1994] [no constitutional violation when off-duty police officer failed to stop another off-duty police officer from shooting a houseguest].)

{**65 Misc 3d at 279} [4] Further, when the conduct alleged is the failure to adequately discipline and supervise students, such allegations are generally insufficient to plausibly state a substantive due process claim based on a state-created danger. (See P.W., 927 F Supp 2d at 83 [allegations that named defendant inadequately responded and disciplined student bullies insufficient to state a claim].) Rather, "[a] violation of substantive due process rights requires that the official conduct in question be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." (Spring, 655 Fed Appx at 28 [internal quotation marks omitted]; see also Smith v Guilford Bd. of Educ., 226 Fed Appx 58 [2d Cir 2007] [summary order].) Here, although plaintiff alleges that HUFSD did not take measures sufficiently effective against the bullying experienced by the decedent, plaintiff does not allege that HUFSD assisted in creating or increasing the [*7]danger to the decedent or wilfully disregarded "obvious risks." (Spring, 655 Fed Appx at 28 [internal quotation marks omitted]; Smith, 226 Fed Appx 58.) Thus, plaintiff's allegations are insufficient to plausibly state a due process claim under the Fourteenth Amendment.

To maintain an equal protection claim, a plaintiff must show adverse treatment when compared with other similarly situated individuals and that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. (G.D.S. ex rel. Slade v Northport-East Northport Union Free Sch. Dist., 915 F Supp 2d 268, 277 [ED NY 2012].)

To succeed on an equal protection claim based on allegations that teachers, administrators, and boards of education were deliberately indifferent to discriminatory harassment of a student at school by other children, a student must show that he was afforded a lower level of protection as opposed to other students, and that this lower level of protection was the result of his protected status. (Preston, 876 F Supp 2d at 244, quoting T.K. v New York City Dept. of Educ., 779 F Supp 2d 289, 316 [ED NY 2011]; see also Spring, 655 Fed Appx at 28-29; Smith, 226 Fed Appx at 63-64.) Absent allegations describing dissimilar treatment of non-disabled students, the plaintiff fails to state an equal protection claim under the Fourteenth Amendment. In Spring v Allegany-Limestone Cent. Sch. Dist. (138 F Supp 3d 282, 294-295 [WD NY 2015], affd in part, vacated in part 655 Fed Appx 25), the court found that allegations that{**65 Misc 3d at 280} teachers knew of and ignored harassment of the student and removed the student from the school's baseball team as a result of "horseplay," despite having tolerated the same or similar conduct by others without disability, and then allowed him to be ridiculed by teammates without consequence, were insufficient to support claim of violation of the Equal Protection Clause. The court indicated that these allegations failed to describe any specific similar incident involving non-disabled students or any other facts that would provide context for considering the reasonableness of school officials' alleged actions. (Spring, 138 F Supp 3d at 295.)

[5] In this case, the plaintiff has not alleged facts to support a finding that the District maintained a policy or practice of treating harassment of disabled students in a manner inconsistent with its treatment of such complaints by other students. Nor has the plaintiff alleged similar incidents involving non-disabled students. Accordingly, the allegations are insufficient to demonstrate that she has a cause of action under the Equal Protection Clause of the Fourteenth Amendment against the District.

Lastly, the court rejects the defendant's contention that amendment should not be allowed because the plaintiff failed to file a notice of claim concerning her statutory claims, now relegated to the ADA and Rehabilitation Act claims. As an initial matter, it has been held that the notice of claim statute does not apply to ADA or Rehabilitation Act claims. (Finley v Giacobbe, 827 F Supp 215, 219 [SD NY 1993] ["(T)here is . . . no reason for us to suppose Congress intended that state notice-of-claim provisions should apply to ADA or Rehabilitation Act claims"]; see also Tout v Erie Community Coll., 923 F Supp 13, 15 [WD NY 1995].) Further, the notice of claim as filed indicated both that the plaintiff was severely bullied "due to his appearance and mannerisms" stemming from his physical condition and that HUFSD allowed the bullying to occur to the extent that "it unreasonably and substantially interfered with the decedent's educational performance and opportunities." Although the notice itself cited DASA, the facts alleged put the defendant on notice of plaintiff's potential ADA claim.

For the foregoing reasons, it is hereby ordered that the defendant's motion to dismiss the second and third causes of action [*8]is granted; and it is further ordered that the plaintiff's{**65 Misc 3d at 281} motion to amend the complaint is granted in part to the extent that the plaintiff may amend to add a claim under the Americans with Disabilities Act and the Rehabilitation Act, and is otherwise denied.