Maldonado v City of New York
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Maldonado v City of New York 2017 NY Slip Op 30792(U) March 6, 2017 Supreme Court, Bronx County Docket Number: 17741/2007 Judge: Alison Y. Tuitt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] NEW YORK SUPREME COURT----------COUNTY OF BRONX PART ----=IA'-"----=-5_ _ _ __ INDEX NUMBER: 17741/2007 IZAYA MALDONADO, by Parent and Natural Guardian LUIS MALDONADO, Plaintiff, -against- Present: HON. ALISON Y. TUITT Justice THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION OFFICE OF PUPIL TRANSPORTATION, THE PIONEER TRANSPORTATION CORPORATION, JOHN DOE, Individually and as bus driver, JANE DOE, Individually and as bus aide, SUSAN ERBER, Individually and as Regional Superintendent of the District 75 Special Education Program, LORRAINE SESTI, Individually and as Principal of P.S. 17X and J. RICHBERG, Individually and as a member of the Committee on Special Education for Service District 75, Defendants. The following papers numbered 1 to , Read on this Defendants' Motions for Summary Judgment On Calendar of 10/14/15 Notices of Motion-Exhibits, Affirmations _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ l......,_2 Affidavit/ Affirmation in Opposition --------~3+------------ Reply A f f i r m a t i o n s - - - - - - - - - - - - - - - - - - . . - - - - - - - - - - - - Supplemental/Further Reply A f f i r m a t i o n s - - - - - - - + - - - - - - - - - - - - - Upon the foregoing papers, defendants the City of New~ ork (hereinafter "City"), the Board of Education of the City of New York and the New York City Departmenl of Education (hereinafter collectively 'DOE"), Office ofTransportation (hereinafter "OPT'), Susan Erber (h,reinafier "Erber"), Lorraine Sesti i I [* 2] (hereinailer "Sesti") and Joanne Richburg s/hla J. Richberg's (hereinalllr "Richburg") motion for summary judgment and defendant The Pioneer Transportation Corporation's (herf inafter "Pioneer") motion for summary judgment are consolidated for purposes of this decision. Plaintiff Luis Maldonado brings this action on behalf of ~is son Izaya Maldonado alleging violations of constitutional rights, federal and state anti-discrimination 11,ws, New York Social Services Law and negligence. At the time of the alleged incidents, on October 17, 18 and .19, 2005, the infant plaintiff was a nonverbal, five year old with a diagnosis of autism spectrum disorder, attenlion deficit hyperactivity disorder and a moderate to severe intellectual disability. He was attending special edufation public school, P.S. 17X, in Bronx, New York. As a result of his disabilities, the infant was to be transportcld to and from school on a "minibus", seating up to 18 children, with a matron or attendant. In addition to the lmatron or attendant, the minibus could have additionally attendants if a particular child was assigned a one-onrne paraprofessional or "para''. Those assignments would be contained in the child's Individualized Educatio , Program ("IEP"). To ensure that disabled children receive a free and appropriate education ("F APE"), a ~chool district must create an IEP for each disabled child upon request (20 U.S.C. § 1414[a] ). An IEP is a wJtten statement setting forth [1] the child's present academic status; [2] measurable annual goals, including ~ow progress towards those goals will be measured and reported; [3] what special education, supplementary aids ~nd services will be provided to the child or on the child's behalf; [4] the program modifications and suppmts for school personnel that will be provided to the child; [5] the extent, if any, the child will participate with non-disabled children; and [6] what accommodations, if any, are necessary to measure the child's academic performance. 20 U.S.C.§ 1414(d)(l)(A). The IEP "describes the specially designed instruction and services that rill enable the child to meet stated educational objectives and is reasonably calculated to give educational renefits to the child''. M.W. v. New York City Department of Education, 725 F .3d 131 (2d Cir. 2013 ). Pursuant to the infant's IEP, the infant required a minib~s for transportation. the infant was instead placed in a full-sized special education school b~s, Due to the error, seating up to 35 students, from the beginning of the school year until the dates of the incidents. Plaintiff c~aims that the infant was "brutal attack[ed]", "abuse [d]" and subj ccted to "unwarranted sexual and physjcal harassment" while on the foll-sized bus. The bus transportation service was provided by defendant Pioneer pursuant to a contract with the City. Pioneer owned the buses they operated and hired the drivers and matrots. Pioneer provided buses for "special education runs" which transported special education students. The speral education runs had one matron or 2 [* 3] attendant on board the bus whose duty was to make sure the children wte transported and escorted off the bus safely. Pioneer operated only full-sized buses and did not provide minituses to the infant's school as that was not part of its contract with the City. I On October 17, 18 and 19, the infant was found partially I or fully disrobed while on the full-sized bus. Plaintiff argues that the infant's clothing was removed by other chtldren on the bus as the infant was physically unable to undress himself. Plaintiff alleges that the infant was sexually attacked and abused by other children on the bus, some of which were fifth and sixth graders, much ot.der than the infant. Plaintiff claims that these incidents occurred as a result of defendants placing the infant on t e wrong bus, for several weeks, and when the incidents continued to escalate, nothing was done to protect ttje infant and provide him with the proper transportation. Plaintiff further argues that the infant was attacked and hused as a result of Pioneer's inadequate supervision of the infant and of the older special education sfudents on the subject bus. Plaintiff contends that in allowing older special education students on the same tjus as the non-verbal, five year old, autistic plaintiff, with completely inadequate supervision, it set the stage for the infant's abuse in which he was disrobed by one or more of the children on the bus and sexually assaul+. Plaintiff Luis Maldonado claims that when the bus arrived in front of his house on October l 81\ the infant's home aide went to meet the bus as plaintiff looked out of th~ window. The matron did not escort the infant off the bus and he saw the aide walk to the back of the bus anb remained there. His wife went out to see what was happening and when she got on the bus, she found the aidp in the back. The aide told her that when she got on the bus, she found the infant in the back of the bus, stripped into a seat in the last row, again naked with all of his clothes spread out over four or five seats from whre he was seated. Plaintiff Luis Maldonado testified that there were "red 1arks all over [the infant's] private area and lower abdomen" following the incident on October 19th. When thl infant was examined at Lincoln Hospital, they found no evidence of sexual assault, abuse or rape, but p~aintiff claims it was because the I examination did not take place until days after the assaults. Plaintiff testified that there was no physical I evidence of sexual abuse other than these red marks. Plaintiff argues t~at contrary to defendants' contentions, the matron did not actually see the infant disrobe himself, and only assJmed that he had did when she found him undressed. Plaintiff argues that the matron was not watching the infant I the entire duration of the bus ride I because she had a bus full of other special education children, some "utlruly" and "very disruptive", which she had to supervise, and at every bus stop, she had to escort chi Idren on/o the bus and hand them off to their 3 [* 4] guardians. Plaintiff claims that as a result of what happened on the bus, the infant suffered from terrible nightmares with extreme tantrums and self-injurious behaviors. While te infant had previously had sleep problems for which he had been treated, the issue magnified following tpe subject incidents. Previously, he s~eep. However, following the incidents, would wake in the middle of the night and play quietly and go back to the infant began to wake nightly, in the midst of extreme tantrums, and as unable to return to sleep. He would breathe heavily, scream, cry, hit the wall and floor with his open hand, d throw himself of the floor, scratching his face with his hands. Plaintiff claims this was a nightly occurrence hi ch continued through late 2007 or early 2008. Defendants claim that they are entitled to summary judg ent because the evidence shows that the infant was not sexually abused, but instead removed his own clothi and masturbated while on the bus. Pursuant to his father's testimony, the infant had been known to masturfate in public places, as well as at home for at least one year prior to these incidents. Additionally, the father tesbfied that shortly after being diagnosed with autism at age three, he could not "take his clothes off', but was ab e to slide his pants down. Pioneer argues that the case against it should be dismissed because the infant w s placed on the bus by City officials, and Pioneer did not have the authority to remove or refuse to transport special needs student, despite a child's disruptive behavior. Pioneer would make report of the incidents on the lbus and would pass them on to the City, but Pioneer did not make the determination as to which type of bus or cleans of transportation was most suitable for the child. Pioneer argues that it promptly reported the infant's behatior to the parents and the City officials, and recommended that alternate transportation be provided to the child. Starting on September 20, 2005, "Student Misbehavior keport[s]" pertaining to the infant's bus rides which were generated by matron Patricia DelPonte, as follows: I September 20, 2005 "In P .M. he was disruptive on bus. He was throwing his stuff around. Also he took off his shirts (sic). He also banged his fist on bJs window". On a "Checklist of Inappropriate Behavior", she marked off "Child Throws IItems Around the Bus" and "Child Annoys, Disrupts, Fights with Other Students on His/Her Bus. The report further provides "This is the 1st ... Behavior Report Concerning this Child." ~neakers September 21, 2005 "In P.M. he took off his socks and and threw them on bus ... I was not aware of this because the bus is full with many stud1nts some of which are very disruptive. He needs a para [paraprofessional] because it is impossi le for me to ... watch him. He also eats food on the bus." On a "Checklist oflnappropriate Beh vi or", she marked off "Child Throws Items Around the Bus", "Child Annoys, Disrupts, Fight1 with Other Students on His/Her Bus" 4 [* 5] and "Child Brings Inappropriate Items on the Bus (CandJ, Food, Radio, Etc.)" "This is the ... 2"ct ... Behavior Report Concerning this Child". 1 s~I September 22, 2005 "In P.M. he took off his shoes and ck & threw them on the floor of the bus. He also threw his book bag. He refuses to put his so k & shoes on again". On the "Checklist oflnappropriate Behavior", she marked off" hild Throws Items Around the Bus" and "Child Annoys, Disrupts, Fights with Other Student~ on His/Her Bus". "This is the ... 2"ct ... Behavior Report Concerning this Child". I sh~es September 23, 2005, "In P.M. he took off his socks & and threw them on the bus floor along with his book bag. He was also yelling and bangi g on the bus window. This happens everyday." He refuses to put his sock & shoes on again". On "Checklist of Inappropriate Behavior'', she marked off "Child Throws Items Around the Bus", "Child Annoys, Disrupts, Fights with Other Students on His/Her Bus" and "Child rings Inappropriate Items on the Bus (Candy, Food, Radio, Etc.)" .. "This is the ... 3rct ... Beh vior Report Concerning this Child". September 30, 2005 "Took his sock & sneakers off on bl, & threw them. Ile also threw his school bag & was banging on window." On "Checklist flnappropriate Behavior", she marked off "Child Throws Items Around the Bus", "Child Anno s, Disrupts, Fights with Other Students on His/Her Bus". "This is the ... 6th ... Behavior Report C ncerning this Child". The following reports were generated on the dates of the incidents by matron Joanne lndiviglia. October 18, 2005 "Izaya took his pants off and began jutping on the seat, he then removed his diaper & began playing with his genitals." October 18, 2005 "Izaya pulled down his pants to his kntes and began playing with his genitals in view of the other children." • October 19, 2 00 5 "lzaya pulled down his pants to his Jles - 1O/ I 910 5 @ 8 :2 0 a.m." Ms. Indiviglia testified at a deposition that on the dates f the incidents, the infant's clothes were strewn about the bus while the infant masturbated as the older kids sho ted "he's naked, he's naked." After his seat-mate had alerted her, she saw that the infant had opened his pants nd ripped into the side of his diaper. Ms. Indiviglia testified that it was very difficult to get control of the chi~dren on the bus as the kids were very disruptive, yelling, going up and down the bus aisle, and jumping up ankI down in the seats. Additionally, every time a child was getting off the bus, it was her job to escort them off. ~very time she dropped off a child and came back, she would find that the infant was "doing the same thing". '!The only problem with Izaya was every time you came back in the bus, he was out of his seatbelt and doing the same thing again." Ms. lndiviglia did not testify that she actually ever witnessed the infant removing his clot,es, but she would find him without his 5 I [* 6] clothing, diaper and/or shoes and socks. It was her opinion that the infa~t did not belong on that bus because he could not be provided with the attention that he required. Her responsibtlities on such a challenging bus in trying to keep all of the students under control, while also having to esc~rt them off the bus, did not allow for the kind of care that a severely non-verbal child who did not follow coinands needed. In an affidavit submitted in support of Pioneer's motion, /Ms. Indiviglia states while on the bus route, she walked up and down the bus aisle to make sure all the childrer had on their seatbelts. On October 17, 2005, the infant was seated two seats behind her when the child sitting next to him called out to her and told her that he could "see [the] wiener" of the boy sitting next to him. She statel that the infant had removed his pants and ripped into his diaper and massaged his genitals in open view of thel other children. Ms. Indiviglia tried to keep him out of the view of the other children, walked to the front to letlthe bus driver know what was happening and when she walked back to the infant, she found he was ri~ping at his diaper and jumping on the seat. She tried to get his shoes and seatbelt back on, and tried to make ~im sit, but he would not cooperate. On October 18th, she escorted children off the bus at their stop and when shr returned to the bus, the infant had removed his shoes and socks, pulled his pants down, ripped off his diapfr, and was running wildly back and forth in the bus. She dressed him and attempted to get him to sit down. When the bus arrived at his stop, as she got up to assist him off the bus, he pulled down his pants and again beg~n 1 His home health aide was waiting at the stop and Ms. Indiviglia asked running back and forth in the bus. for her assistance in helping him off the bus. She told the attendant that the parents must speak with officials tolmake some other transportation arrangement as the infant's refusal to stay clothed was disturbing to othbr children and harmful to himself. Plaintiff argues that during the six week period from whfn the school year began until the time of the incidents, defendants ignored the bus matrons' repeated formal rep1rts of escalating trouble on the bus and repeated phone calls and notes from plaintiff Luis Maldonado's mother! Linda Matos, his fiancé (later wife) Angel, and himself expressing extreme concern regarding what was ocfurring on the bus. In September and October 2005, plaintiff Luis Maldonado and his mother repeatedly co111plained to OPT (receiving Complaint Nos. 225838, 213955, 187915 and 190202), he and his wife also compiained to P.S.17's transportation coordinator defendant Richburg, Yvonne Dixon, the infant's classrooJ teacher and Pioneer. Plaintiff testified that he went to Richburg's ofiice on October 19 and talked to her, but~ no avail. October 20th, she received a call from the Principal, defendant Sesti Richburg testified that on as~ing what she knew about plaintiff's written complaint to Ms. Dixon on October l 91h which indicated that t~e infant was naked when his bus pulled 6 [* 7] Richburg testified that she responded that she knew nothing about it and was then made aware that Angel, the infant's stepmo the'., had put out a social media comment asking for he I~ with. her stepson. . , Defendant P10neer moves for summary judgment argum~ that it did not v10late the mfant s constitutional rights and was not negligent in his care. Pioneer argues tJtat it did not decide or determine which bus was assigned to infant; it did not refuse to transport him and did notlrefuse to re-dress him after he disrobed; it did not refuse to transport him despite his public masturbation and aberrant behavior; its employee spoke with the infant's guardian and recommended that he be assigned a paraprofe~sional; and, it documented the issues on the bus in misbehavior reports and issued copies to Richberg and other 1chool officials. The City moves for summary judgment arguing that it is not a proper party to the action. THe DOE moves for summary judgment arguing that it did not violate the infant's constitutional rights and were rot negligent with respect to their care of the infant. Plaintiff argues that the motions must be denied as there 4re questions of fact as to whether the infant plaintiff's rights were violated and whether he was assaulted and/pr injured while on the bus. Plaintiff argues that the evidence presented shows that defendants failed to protett and adequately supervise the infant on the bus, and as a result of the lack of supervision, the infant was caused to sustain harm. The court's function on this motion for summary judgm1nt is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N. Y.2~ 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as Ito the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 N. Y.2d 223 (1978). The movant mustl come forward with evidentiary proof in admissible form sufficient to direct judgment in its favor as a matter ofj. aw. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Thus, when the existence of an issue of fac is even arguable or debatable, summary judgment should be denied. Stone v. Goodson, 8 N.Y.2d 8, (1960); Sil man v. Twentieth Centu Fox Film Corp., supra. The proponent of a motion for summary judgment carrie~ the initial burden of production of evidence as well as the burden of persuasion. Alvarez v. Pros ect Hos ital, 68 N.Y.2d 320 (1986). Thus, the moving party must tender sufficient evidence to demonstrate as a matte of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of pro~uction" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficiel~ evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasipn, however, always remains where it began, i.e., with the proponent of the issue. Thus, if evidence is equal!! balanced, the movant has failed to meet 7 [* 8] its burden. 300 East 34th Street Co. v. Habeeb, 683 N.Y.S.2d 175 (P' D~pl. 1997). It has long been recognized that a board of education hasla duty, arising from the fact of its physical custody over students, to exercise the same degree of care and . upervision which a reasonably prudent parent would employ in the given circumstances. Pratt v. Robinson, 39N.Y.2d 554 (1976); Logan v. City of New York, 543 N.Y.S.2d 661 (1st Dept. 1989) citing Ohman v. Board o 'Education, 300 N.Y. 306 (1949); Pratt v. Robinson, 39 N.Y.2d 554 (1976). "Schools are under a duty to adeq ately supervise the students in their charge and they will be held liable for foreseeable injuries proximately elated to the absence of adequate supervision. Schools are not insurers of safety, however, for they canno reasonably be expected to continuously supervise and control all movements and activities of students; therefort, schools are not to be held liable 'for every thoughtless or careless act by which one pupil may injure another". Mirand v. City of New York, 84 N.Y.2d 44 (1994)(internal citations omitted); Schools are, however, un1er a duty to adequately supervise their students and are liable for foreseeable injuries which are proximately carsed by the absence of such supervision. Garcia v. City of New York, 646 N.Y.S.2d 508 (1st Dept. 1996) (internJl citations omitted). This duty derives from the fact that the school, once it takes over physical custody and c~rrol of the children, effectively takes the place of their parents and guardians. Mirand v. City of New York, 84 N, Y.2d 44 (1994). In order to establish a school's liability for negligent supervision, plaintiff must establish that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasf.nably have been anticipated ... Actual or constructive notice to the school of prior similar conduc is generally required because, obviously, school personnel cannot reasonably be expec ed to guard against all of the sudden, spontaneous acts that take place among students daily; af injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not ive rise to a finding of negligence absent proof of prior conduct that would have put a reasonable erson on notice to protect against the injury-causing act. · Id. A school district that undertakes to transport students has a duty to berform this task in a careful and prudent manner and under certain circumstances, school districts in New York Jave been held liable on this theory when children were injured during the act of busing itself, broadly construed. Williams v. Weatherstone, 23 N.Y.3d I 384 (2014); Chainani v. Board of Education of City of New York, 87 ~.Y.2d 370 (1995). Plaintiffs Complaint pleads a negligence cause of actiot and alleges that defendants discriminated against the infant in violation of his statutory rights unde1 the Human Rights Law of the City and State of New York, the Rehabilitation Act and the Americans with Disabilities Act. New York State Human 8 [* 9] Rights Law ("NYSHRL") pursuant to Executive Law §296(4) states in rlievant part that "[i]t shall be an unlawful discriminatory practice for an education corporation or association ... to permit the harassment of any student or applicant, by reason of his race, color, religion, disability, nat~onal origin, sexual orientation, military status, sex, age or marital status .... ". Under the New York City Human Rights Law ('NYCHRL"), it is an "unlawful discriminatory practice" for "any place or provider of public tccommodation, because of the actual or perceived ... disability ... of any person, directly or indirectly, to refuse, r· ithhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof ... ". It defines "provider of public accommodation" to mean "providers ... of goods, services, facilities, actmmodations, advantages or privileges of any kind," and defines "disability" as "any physical, medical, mental r psychological impairment, or a history or record of such impairment." The NYCHRL and NYSHRL cr~ates lower thresholds for actionable conduct and must be construed liberally in favor of discrimination plainfiffs, meaning that a defendant may be liable under the NYCHRL and NYSHRL, but not under state or federal lstatutes. Although the NYCHRL and NYSHRL are subject to the ADA's analytical framework, the NYCHRt and NYSHRL's definition of disability differs significantly from the ADA, with the NYCHRL and NYSHRL's !disability definitions being recognized as far broader. See Giordano v. City of New York, 274 F.3d 740, 753 qd Cir.2001). The Rehabilitation Act of 1973 §504, provides that "[nJ1 otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in ... or be subjected to discrimination under any program or activity receiving Fe~eral financial assistance." 29 U.S.C. § 794(a). To state a prima facie claim under the Rehabilitation Act, a plaiftiff must demonstrate: (1) that he is a qualified individual with a disability within the meaning of the statute; (2) that the defendant is subject to the Act; and (3) that he was denied the opportunity to participate in the detf.ndant's services, programs, or activities, or was otherwise discriminated against by the defendant, by reason of 9is disability. Harris v. Mills, 572 F.3d 66, 73-74 (2d Cir.2009). The Rehabilitation Act is meant to reach tho~e individuals, disabled or not, who might be adversely affected by society's accumulated myths and fears about d sability and disease. Cain v. Esthetique, --- F.Supp.3d ---- (SDNY 2006) citing School Board of Nassau Count v. Arline, 480 U.S. 273 (1987). Claims under Title II of the American with Disabilities ~ct ("ADA") Section 504 of the I Rehabilitation Act are analyzed identically. See, Henrietta D. v. Bloom er , 331 F.3d 261, 272 (2d Cir.2003). The ADA and Rehabilitation Act were designed to protect disabled per ons from discrimination, both intentional and unintentional, in the provision of public services. Undet both statutes, schools are required to 9 [* 10] provide a free appropriate public education through special education a1 related services. A recipient that operates a public elementary or secondary education program or activity! shall provide a free appropriate public education, also known as F APE, to each qualified handicapped person '[ho is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap. 34 C.F.R §1104.33. Denial of "the opportunity to participate in or benefit from defendants' services" does not require that ~he student be physically prevented from access: "[r]ather, a plaintiff must establish ... harassment [by] students that is so severe, pervasive, and vict~ms' educational experience, that the objectively offensive, and that so undermines and distracts from the victim-students are effectively denied equal access to an institution's respurces and opportunities." Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650-651 (1999). "To mee~ [FAPE] requirements, a school district's program must provide special education and related services taf lored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to rece1·ve educational benefits." Walczak v. Florida Union Free Sch. Dist., 142 F .3d 119, 122 (2d Cir.1998) Plaintiffs claims pursuant to the NYCHRL, NYSHRL, te Rehabilitation Act and the ADA are dismissed as there is no evidence that the infant was discriminated agai st by any of the defendants. Here, there is no dispute that the infant is a person with a disability under the mean· g of the ADA, the Rehabilitation Act and the related New York State and City statutes, and that the defendan1s were aware of his disability. The DOE classified the infant as disabled under the Individuals with Disabil~ties guarantees the infant a free appropriate public education. FAPE is Education Act ("IDEA") which defin~d as special education and related I services, and related services includes transportation for the student. Inlaccordance with FAPE, the DOE placed the infant in a school for children with special needs and created an IEPI for him. Thus, the DOE complied with I the requirements of providing the infant with an appropriate educationaf environment with special education and related services. Contrary to plaintiffs contention, there was no violatibn of any of the infant's rights pertaining to his rights to receive a F APE. It is undisputed that the infant's IEP pr~vided the appropriate "related service" with respect to transportation as it called for him to be placed on a minipus. The fact that he was not placed on a minibus for a six week period resulted from human error for which thb defendants may be liable under negligence principles. There is no evidence that the infant was purposerully discriminated against as a result of his disability when he was placed on the full-sized bus. The fact that thy infant was allowed to remain on the bus for several weeks, despite numerous complaints from the matrons, the i}laintiff, his mother and wife, subjects the defendants to liability. 10 [* 11] ~s against the City must be granted as it The branch of the motion that seeks summary judgment is not a proper party to the action. The Board of Education is a corpora e body, separate and legally distinct from the City of New York. N. Y. Educ. Law §2551; Flores v. Cit of ew York, 878 N. Y.S.2d 728 (1st Dept. 2009) "[T]he 2002 amendments to the Education Law (L. 2002, ch. 91 ); do not provide a basis to hold defendant liable for the personal injuries sustained by plaintiff'. Corzi v. Cit of New York, 868 N.Y.S.2d 37 (1st Dept. 2008); Perez v. City of New York, 837 N.Y.S.2d 571 (1st Dep. 2007), lv. denied IO N.Y.3d 708 (2008). With respect to the DOE and Pioneer, the motion for sujmary judgment must be denied with respect to plaintiffs negligence claims. Viewing the evidence in a light! most favorable to plaintiff, and based upon the record as a whole, it cannot be said, as a matter of law, that thd underlying events were insufficient to I put defendants on notice of a potentially dangerous situation on the busl Pursuant to the infant plaintiffs IEP, it is undisputed that the infant plaintiff was to be transported to and from chool on a mini-bus with a matron. It is also undisputed that the infant plaintiff, by admitted error of the OPT, Jas placed on a full-sized bus instead of a mini-bus for several weeks with children who were substantially older ttan the infant. The evidence presented shows that defendants were put on notice that the infant was on the wro g bus for 26 days, twice a day, and that serious incidents were occurring and had occurred while the infant was pn the bus. Notwithstanding the notice, the infant continued to be transported on the full-sized bus, in direct coJtravention to the directives in his IEP. The incidents on the bus were not a one-time occurrence. Given that thp instances of inappropriate disrobing occurred on multiple occasions, it simply cannot be said that defendand lacked notice. The evidence and testimony of the parties shows that the infant plaintiff was found disrobrd several times on the bus and there are questions as to whether the infant was able to disrobe himself. Plaintifl s wife called to report the incident of the infant disrobing on the bus and the documented contemporaneous complaint shows that she stated that the infant could not disrobe himself and she was afraid that he was being aJused by other children on the bus. The matrons were admittedly occupied in a "circus" environment and overJhelmed on buses full of very disruptive and umuly special education students and could not provide the infant fith the attention and care he needed. Notwithstanding the numerous formal reports filled out by the matrons,] the DOE permitted the situation to continue to the point where the incidents on the bus escalated. Thus, plrintiff has raised issues of fact as to whether the infant was subject to abuse while on the bus during the 26 fays that he was erroneously placed on the full-sized bus. Furthermore, plaintiffs testimony regarding the red rarks he found on the infant and the 11 I [* 12] subsequent nightmares, terrors and tantrums raise an issue of fact as to lhether the infant was physically attacked, assaulted and/or touched by another person on the bus. Contrary to Pioneer's contention, there is evidence that it was negligent in transporting the infant. Pioneer argues that the infant was placed on the bus by DOE's OPT and' it lacked the authority to remove or refuse lo transport a special needs student, despite a child's disruptive bthavior. Pioneer further argues that it did not make the determination as to which type of bus or means of tran~pmiation was most suitable for a child and it properly documented numerous reports of the infant's incidents or the bus, specifying that the full-sized bus was not appropriate for the infant and passed them on to the proper bfficials. However, there is evidence that Pioneer failed to provide the infant with appropriate care. The reports generated by the matrons show that they were aware of the infant's problems on the bus. Thus, they were o~ notice of the harmful situation on the bus. A bus operator such as Pioneer owes the very same duty to the stuf ents entrusted to its care and custody as a school. See, Pratt v. Robinson, 39 N.Y.2d 554 (l 976)(The school dis~rict did undertake to transport students and must therefore perform so much as it had undertaken in a careful and prudent manner. Under certain circumstances, school districts in our own Stale and in other States havj been held liable on this theory when children were injured, even after they had technically been discharged ftom the bus. The liability in those cases stemmed from the fact that the injury occurred during the act of busingjtself,); Harker v. Rochester City School District, 661 N.Y.S.2d 332 (4th Dept. 1997), lv. denied, 90 N.Y.2d 811 l 998)(The law with respect to the extent of the duty of the school towards a student is equally applicable to the ~s company transporting the student). Ms. lndiviglia testified that the bus driver's responsibility was to pull oter in the event students were unbelted and/or out of their seats. She further testified that the bus driver failed ~o do so and continued to drive while the infant and the other children were up and about and jumping up and do{vn in the seats. She described the bus being in an uproar, yet the bus driver would continue to drive. She alsl testified that the driver was aware that the infant would throw things during the ride and would get undressed. Under these circumstances, a jury could dismiss Pioneer's arguments that the disruptive actions of some of the students on the bus were not unanticipated and could find that Pioneer could have foreseen the dangtr to the infant in continuing to transport him on the full-sized bus. Whether the bus company was negligent int e discharge of its duty to provide adequate supervision to the infant under these the circumstances is a q~estion of fact for a jury. Thus, a jury could reasonably conclude that defendant was negligent in its proximate cause of infant's alleged injuries. 12 supervisi~n of the activity on bus and was a [* 13] The negligence action against defendants Sesti and Rich~urg also remain as the evidence set forth by the plaintiff raises an issue of fact as to whether they were put or. notice of the potentially dangerous situation on the bus and failed to appropriately and timely act to protect the infant from harm. See, Cianci v. Board of Education of City School District of City of Rye, 23~ N.Y.S.2d 547 (2d Dept. 1963)(1t was error to dismiss the complaint as a matter of law against the school prin1ipal. Quite apart from any liability imposed by statute, under the common law there was imposed upon her las the principal, both the duty to be reasonably vigilant in the supervision of the pupils and the liability for Her negligent performance of such duty). Specifically, Sesti was the school principal, and Richburg was the speci~l education coordinator and part of the team that instituted the infant's IEP. Richburg was then aware that the rfant was to be transported in a minibus and plaintiff alleges that as the school bus coordinator of PS 17X slle was or should have been aware that the infant had been placed on the wrong bus for a period of 26 days, twi~e a day, thereby putting the infant in harm's way and the consequences were foreseeable. The action against Erber is dismissed as plaintiff fails to articulate any claims against her. Other 1 than being the Regional Superintendent for the school, plaintiff fails to ~et forth any acts by Erber that caused plaintiff harm. Furthermore, plaintiffs claim of failure to report suspe~ed child abuse or maltreatment is also dismissed as plaintiff fails to articulate facts to substantiate the claim. I This constitutes the decision and Order of this Court. ) Dated: ,J I d; \ , <. Ho . Alison Y. Tuitt 13
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