Nasca v. Sgro, 101 A.D.3d 963

Background

Plaintiff’s children attend Academy Street Elementary School in Bayport and each received a written school policy on drop-off/pick-up procedures.
Dec. 22, 2009, plaintiff allegedly waited 25 minutes in traffic due to others not following the policy.
Plaintiff confronted crossing guard Christina Sgro and demanded she perform her duties; the next day he videotaped Sgro at work.
Plaintiff complained to the school principal, Sgro’s supervisor Lisa Allen, and to the Fifth Precinct commander Aristides Mojica without satisfactory relief.
Sgro filed a Department incident report accusing plaintiff of harassment, adding to the dispute between the parties.
Plaintiff filed this action seeking to enforce the policy, and damages for defamation and violations of 42 USC §§ 1983 and 1985; the Supreme Court dismissed the complaint as to movants under CPLR 3211(a)(7).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff pleaded a Monell claim against the municipality	Sgro’s misconduct evidences a widespread practice.	No widespread practice or policy alleged or condoned by final policymakers.	Dismissal affirmed; no policy or custom pleads a § 1983 claim.
Whether plaintiff stated a § 1983 equal protection or training/supervision claim	Inadequate training and supervision and selective enforcement harmed him.	Plaintiff failed to allege facts supporting a constitutional violation or policy.	Dismissal affirmed; claims inadequately pled.
Whether mandamus lie to compel enforcement of school drop-off/pick-up procedures	Municipality had a clear legal right to enforce procedures on school property.	Mandamus cannot compel enforcement of school procedures on school property.	Dismissal affirmed; no clear legal right established.
Whether plaintiff stated a defamation claim with cognizable damages	Defamatory statements harmed his reputation and caused damages.	Plaintiff failed to plead special damages or slander per se.	Dismissal affirmed; defamation claim inadequately pled.

Key Cases Cited

Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (N.Y. 1977) (tool for evaluating CPLR 3211(a)(7) motions to dismiss)
Country Pointe at Dix Hills Home Owners Assn., Inc. v. Beechwood Org., 80 A.D.3d 643 (1st Dep't 2011) (claims must show cognizable legal theory from pleaded facts)
Fishberger v. Voss, 51 A.D.3d 627 (2d Dept. 2008) (pleading standard for review on 3211(a)(7))
Gershon v. Goldberg, 30 A.D.3d 372 (2d Dept. 2006) (presumptions in favorable-inference standard; no bare legal conclusions)
Riback v. Margulis, 43 A.D.3d 1023 (2d Dept. 2007) (rejects bare or incredible factual claims on motion to dismiss)
Baron v. Galasso, 83 A.D.3d 626 (1st Dept. 2011) (reaffirms standards for assessing pleadings at 3211 stage)
Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34 (1st Dept. 2006) (pre-disclosure dismissal standards for 3211 motions)
Jackson v. Police Dept. of City of New York, 192 A.D.2d 641 (1993) (Monell policy analysis for § 1983 claims)
Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978) (establishes municipal liability for official policy or custom)
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) (scope of constitutional claims against entities)
St. Louis v. Praprotnik, 485 U.S. 112 (1988) (requires explicit or implicit condonation by policy-makers)
Liberman v. Gelstein, 80 N.Y.2d 429 (1992) (elements of defamation and damages)
Boyle v. Stiefel Laboratories, 204 A.D.2d 872 (3d Dept. 1994) (defamation damages pleading requirements)
Matherson v. Marchello, 100 A.D.2d 233 (2d Dept. 1984) (slander per se considerations)
People v. Jennings, 75 Misc. 2d 408 (Cort. 1973) (municipal authority to enforce traffic on streets)
City of Newburgh v. Public Empl. Relations Bd. of State of N.Y., 63 N.Y.2d 793 (1984) (mandamus principles and battlefield of administrative remedies)