Cronk v Suffern Senior High School

[*1] Cronk v Suffern Senior High School 2005 NY Slip Op 52059(U) [10 Misc 3d 1061(A)] Decided on December 14, 2005 Supreme Court, Rockland County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2005
Supreme Court, Rockland County

LUISE CRONK, as Mother and Natural Guardian of DUSTIN CRONK, and DUSTIN CRONK, Individually, Plaintiff,

against

SUFFERN SENIOR HIGH SCHOOL and THE RAMAPO CENTRAL SCHOOL DISTRICT, Defendants.



3556/04



Rutherford & Christie, LLP

Atty. For Deft. R.C.S.D.

300 East 42nd Street

New York, New York 10017

Anthony R. Dellicari, P.C.

Atty. For Pltfs.

65 West Ramapo Road

Garnerville, New York 10923

Mary H. Smith, J.

This is an action to recover money damages for defendants' alleged "tortious conduct" in "denying plaintiff Dustin Cronk the opportunity to participate as a player on the [*2]School's varsity baseball team during his third year ..." Plaintiffs specifically allege that these actions included "improper retaliation, conspiracy and deliberate indifference and neglect with respect to the customs and policies of the Defendants." Plaintiffs denominate two separate causes of action; first, for intentional infliction of emotional distress and second, "improper termination from baseball program." Defendant Ramapo Central School District ("Ramapo") interposed its answer generally denying the allegations and asserting sixteen separate affirmative defenses.

According to plaintiffs' 50-H hearing testimony, on October 22, 2002, plaintiff Dustin Cronk ("Dustin") was a member of the Suffern High School varsity football team, weighing approximately 200 pounds. Dustin, along with his teammates and the coaching staff, was on the field, but he was sidelined from actual participation due to a separated shoulder injury sustained several days earlier. Dustin testified that he was standing in front of Coach McNally, "joking around, just blocking his view," "purposely," whereupon Coach McNally suddenly grabbed him and threw him to the ground.[FN1] Dustin got up and told Coach McNally, "Don't ever f'in touch me again." According to Dustin, Coach McNally "had it out for [him] that week," having days before kicked him out of gym class for insubordination, Dustin claiming that he merely had been laughing during the showing of a movie, and having him participate in gym activities when he was not supposed to be engaging in physical activity because of his shoulder injury. Dustin had related the incident to his parents and his mother telephoned Coach Faherty that night; Dustin's father then spoke with the principal the following day.

According to Dustin, the following day, Coach McNally and Coach Delaney, the head coach, isolated Dustin before practice and told Dustin that he should have worked out the problem after the incident instead of leaving and that he should not have gotten his parents involved because he was "going to have to grow up - not grow up, but learn to deal with problems on my own, and not get your parents involved so much." Thereafter, Dustin went to football practice.

Several days later, Dustin had spoken with the principal about the incident. Following this discussion, Dustin testified that after a football practice the following week, all four coaches kept him after, saying, "we thought we worked everything out, why is this still going on" and, they referred to an earlier incident involving physical contact between a different coach and another student, leaving Dustin with the [*3]impression that they believed "it was okay" what Coach McNally did.

Dustin testified that he played the remaining three games left in the football season. Nothing further was said or done about this incident.

Dustin then tried out for the varsity baseball team in the spring and, having played past years, he was "stunned" when he did not make the team; he believed that he was a better player who possessed superior skills to a number of other students who made the team. Coach McNally was not involved with baseball, but Dustin testified that, because the "coaches are all friends," he did not make the team because of the incident with Coach McNally.

Dustin and his parents then filed, on or about March 19, 2003, a report with the Ramapo Police Department relating to the October 22, 2002 incident involving Coach McNally.

It appears from Mrs. Cronk's 50-H hearing testimony that the police, following their investigation, ultimately had concluded that there was a "lack of evidence to support the Cronk complaint, this case should be closed." According to Mrs. Cronk, students who had been interviewed by the police relating to this incident were later shown copies of the final prepared reports and they said that the preparing officers had "lied" about what the students had told the officers. Mrs. Cronk had testified that the initial police investigation was "compromised" by the investigating officer's familiarity with Coach McNally.

Dustin and Mrs. Cronk both testified that Dustin has not undergone any psychological counseling as a result of this incident. Also, Dustin testified that he played varsity football his senior year after this incident, following his having been cut from the varsity baseball team.

This action ensued with the filing of a summons and complaint in June, 2004.

Said defendant now is moving for summary judgment dismissing the complaint, arguing that "Plaintiffs cannot prove that the District was negligent in the hiring, training and supervision of the Suffern High School employees, and plaintiffs cannot prove negligence, intentional infliction of emotional distress or battery." Further, defendant contends that plaintiffs' Second Cause of Action for retaliation and wrongful exclusion from the baseball team is not a recognized cause of action and that same is skin to "educational malpractice" which is not cognizable in New York.

Plaintiffs oppose the motion, arguing that, contrary to defendant's interpretation of the complaint, plaintiffs have not pleaded a cause of action for negligent hiring, training and supervision of the Suffern High School employees. Further, plaintiffs argue that the claim of battery "is but one aspect of the course of conduct asserted" in plaintiffs' First cause of [*4]action and that it was the battery "that touched off the series of events that resulted in the emotional distress to be suffered by plaintiff ... After the battery came the confrontation with the coaching staff, the failure of the school administration to properly react, and his being kept off the baseball team ..." Plaintiffs deny that this is an action akin to educational malpractice because plaintiffs do not assert that the judgment of the School was based upon any statutory standard, and they state that "this is simply a case in which a nonsensical decision was made, for which the only explanation is that defendants were being vindictive."

It is well-settled that on a motion for summary judgment, the Court is called upon to determine whether a bona fide issue exists. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See, e.g., Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1990); Zuckerman v. City of New York, 49 NY2d 557 562 (1980). Although the papers are carefully scrutinized in the light most favorable to the party opposing the motion, see Robinson v. Strong Memorial Hospital, 98 AD2d 976 (4th Dept. 1983), and summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact, see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978), bald, conclusory assertions and the "shadowy semblance of an issue" are insufficient to defeat a summary judgment motion. Ehrlich v. American Moninga Greenhouse Manufacturing Corp., 26 NY2d 255, 259 (1970); see, also, S.J. Capelin Associates v. Globe Mfg. Co., 34 NY2d 338 (1974); Blankman v. Incorporated Village of Sands Point, 249 AD2d 349 (2nd Dept. 1998). Rather, it is incumbent upon a party who opposes a summary judgment motion to "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and capable of being established upon a trial." DiSabato v. Soffes, 9 AD2d 297, 301 (1st Dept. 1959), app. dsmd. 11 AD2d 660 (1st Dept. 1960); see, also, S. J. Capelin Associates v. Globe Mfg. Co., supra; Seaman-Andwall Corp. v. Wright Machine Corp., 31 AD2d 136 (1st Dept. 1971), affd. 29 NY2d 617 (1971).

After this Court's careful reading of the record at bar and the parties' respective arguments, and upon application of the foregoing legal standard, defendant's motion for summary is granted in its entirety based upon the analysis infra. While this Court would have been inclined to sever from the First cause of action plaintiffs' stated claim for assault, finding that a triable issue of fact exists with respect thereto, patently, said claim is time-barred pursuant to the one-year statute of limitations set forth in CPLR 215, subdivision 3. Accordingly, [*5]this action is hereby dismissed.

"In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must plead and prove that a defendant engaged in extreme and outrageous conduct and that such conduct intentionally or recklessly caused severe emotional distress' (citations omitted). Said conduct must transcend the bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community." (Citations omitted). Klinge v. Ithaca College, 235 AD2d 724 (3rd Dept. 1997). "Courts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate and malicious campaign of harassment or intimidation.' (Citations omitted)." Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 AD2d 332 (1st Dept. 1998). Further, a plaintiff is required to establish that severe emotional distress was suffered, which is "supported by medical evidence, not the mere recitation of speculative claims." Walentas v. Johnes, 257 AD2d 352 (1st Dept. 1999), lv. to app. dsmd. 93 NY2d 958 (1999); see, also Leone v. Leewood Serv. Sta., 212 AD2d 669 (2nd Dept. 1995), lv. to app. den. 86 NY2d 709 (1995). While contemporaneous medical treatment is not required, there must be an evidentiary showing that the alleged conduct caused mental or physical symptoms that indicate the presence of emotional distress. See Josephine v. Columbia University, 4 Misc 3d 1023(A) (Sup. Ct. NY Co. 2004)

Based upon the foregoing, the Court necessarily finds that the claim for intentional infliction of emotional distress must be dismissed. Firstly, plaintiffs do not allege nor demonstrate through evidentiary submissions that Dustin has suffered mental or physical symptoms that indicate the presence of emotional distress related to the alleged actions. This failure alone is sufficient to dismiss said claim.

Additionally, however, the Court cannot find based upon the unrefuted circumstances presented that Coach McNally's action of grabbing and throwing Dustin to the ground, even when combined with the further claimed ensuing confrontations between Dustin and the football coaches and the allegedly inadequate response of the school, while all wholly inappropriate and unacceptable, whether individually or collectively, meets the rigorous standard of stating a viable claim for intentional infliction of emotional distress. The claim therefore is subject to dismissal on this basis, as well.

As to the Second cause of action, this Court is unaware of any viable claim for a student's exclusion from a sports team, allegedly motivated solely by retaliation, as here is alleged. Although the Court agrees with plaintiffs that, contrary to defendant's argument, this is not akin to a claim for educational malpractice, nevertheless, plaintiffs have failed to cite any [*6]authority or case law supporting the existence of such a claim. It also is to be noted that plainly the alleged damages caused by this alleged tortious action, i.e., that Dustin was hindered in gaining further recognition and/or prospective college scholarship offers, is highly speculative, likely incapable of being proven and, in any event, completely unsupported by the record at bar. See Pere v. St. Onge, 15 AD3d 465 (2nd Dept. 2005); cf. Plymouth Organization, Inc. v. Silverman, Collura & Chernis, P.C., 21 AD3d 464 (2nd Dept. 2005).

Dated: December 14, 2005

New City, New York

_________________________________

MARY H. SMITH

J.S.C. Footnotes

Footnote 1:It appears in the record that it is the Coach's position that Dustin first had stepped on the Coach's foot.