D.J., a minor, by his Parent and Natural Guardian Amy L. Comfort v. CORNING-PAINTED POST AREA SCHOOL DISTRICT, CORNING-PAINTED POST MIDDLE SCHOOL, CORNING-PAINTED POST HIGH SCHOOL, MIDDLE SCHOOL TEACHER MR. GREGORY STONE, CORNING-PAINTED POST MIDDLE SCHOOL, PRINCIPAL MR. FRANK BARBER, VILLAGE OF PAINTED POST, TOWN OF CORNING, CITY OF CORNING, CORNING-PAINTED POST MIDDLE SCHOOL ASSISTANT PRINCIPAL MRS. SARAH AINSWORTH, ASSISTANT SUPERINTENDENT FOR STUDENT SERVICES MS. KERRY ELSASSER, and NEW YORK STATE EDUCATION DEPARTMENT
6:22-CV-06567 EAW
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
March 7, 2024
INTRODUCTION
Plaintiff D.J., a minor child by his parent and guardian Amy L. Comfort (“Plaintiff“), commenced this action against defendants Corning-Painted Post Area School District (“the District“), Corning-Painted Post Middle and High Schools, the Village of Painted Post, Town of Corning, City of Corning, New York State Education Department (“NYSED“), and various District administrators and staff (collectively “Defendants“). Plaintiff alleges that Defendants are liable for violating his constitutional rights and several state law causes of action. (Dkt. 37).
Presently before the Court are a number of motions: Plaintiff‘s motion to dismiss all claims against Defendants Village of Painted Post, Town of Corning, and City of Corning (Dkt. 38); NYSED‘s motion to dismiss Plaintiff‘s amended complaint for failure to state a claim (Dkt. 42); and a motion to dismiss Plaintiff‘s amended complaint for failure to state a claim filed by the District, Corning-Painted Post Area Middle School (“the Middle School“), Corning-Painted Post Area High School (“the High School“), and individual Defendants Frank Barber (“Defendant Barber“), Sarah Ainsworth (“Defendant Ainsworth“), and Kerry Elsasser (“Defendant Elsasser“) (collectively “District Defendants“) (Dkt. 49). For the reasons that follow, Plaintiff‘s motion (Dkt. 38) is granted, NYSED‘s motion (Dkt. 42) is granted, and District Defendants’ motion (Dkt. 49) is granted in part and denied in part.
BACKGROUND
I. Factual Background
The instant facts are taken from Plaintiff‘s amended complaint (Dkt. 37), which is the operative pleading. As required at this stage of the proceedings, Plaintiff‘s factual allegations are taken as true.
Plaintiff, who is half African-American and has brown skin and a “short afro,” was an eighth-grade student at the Middle School in October of 2021. (Id. at ¶¶ 16, 17). On October 18, 2021, Plaintiff was in a class where Defendant Gregory Stone
Several students in the class were so overwhelmed that they got up and walked out of the classroom. (Id. at ¶ 22). The same day, Plaintiff and other students reported Defendant Stone‘s comments to Defendant Barber, the principal of the Middle School. (Id. at ¶¶ 23, 24). Sometime after this incident, Defendant Stone was removed from his position. (Id. at ¶ 25).
On or around March 1, 2022, Defendant Barber cornered Plaintiff in the hallway to ask how he would feel if Defendant Stone returned to the Middle School. (Id. at ¶ 26). Plaintiff referred the question to his mother who immediately and unequivocally objected to Defendant Stone‘s return. (Id.). Over Plaintiff‘s objections, Defendant Stone was reinstated to teach by the District and given a position at the High School, where Plaintiff was to attend the following year. (Id. at ¶¶ 27, 28).
Plaintiff‘s classmates were aware of Defendant Stone‘s comment to Plaintiff and his reinstatement, which caused mental trauma to Plaintiff. (Id. at ¶ 30). Plaintiff required monthly visits to a nutritionist to address stress and anxiety-induced weight gain, as well as treatment with a child psychologist every few weeks. (Id. at ¶¶ 31, 32). Plaintiff suffers from slipped capital femoral epiphysis, and his stress-eating affected him more than it would most people as a result of this condition. (Id. at ¶ 33). Plaintiff‘s grades dropped as a result of this incident and his homelife was disrupted. (Id. at ¶¶ 35, 36). He no longer feels safe at the District and has been plagued with anxiety and depression. (Id. at ¶ 40).
Plaintiff alleges that Defendant Elsasser, the Assistant Superintendent for Student Services, and Defendant Ainsworth, the Middle School Assistant Principal, were aware of Defendant Stone‘s conduct but were indifferent to Plaintiff‘s continued suffering. (Id. at ¶ 37). Defendants failed to address Plaintiff‘s stress and academic struggles, despite their duty to act in loco parentis. (Id. at ¶ 37). Defendants’ actions were exacerbated by their lack of a response to calls and emails from Plaintiff‘s mother. (Id. at ¶ 38). Plaintiff contends that NYSED is responsible for licensure of educators and it did not address the issue by removing Defendant Stone‘s ability to teach, or by taking appropriate steps to ensure that Plaintiff was provided with a nondiscriminatory educational environment. (Id. at ¶ 39).
Plaintiff‘s amended complaint asserts the following claims against all Defendants: (1) violation of Equal Protection and the Fourteenth Amendment pursuant to
II. Procedural Background
Plaintiff commenced this action on December 16, 2022. (Dkt. 1). The District Defendants filed a motion to dismiss for failure to state a claim on April 11, 2023. (Dkt. 25). On May 8, 2023, NYSED filed a motion to dismiss. (Dkt. 35). The Court granted Plaintiff an opportunity to amend his complaint to cure the alleged defects in accordance with
On March 28, 2023, Plaintiff filed a notice of dismissal that sought to dismiss the claims against Village of Painted Post, Town of Corning, and City of Corning. (Dkt. 23). On the same day, the Court issued a Text Order advising Plaintiff that pursuant to Local Rule of Civil Procedure 41(a)(1)(A), “[a]n action by or on behalf of an infant or an incompetent shall not be settled or compromised, voluntarily discontinued, dismissed, or terminated without application to and leave of Court,” and directing Plaintiff to file an appropriate motion. (Dkt. 24). On May 18, 2023, Plaintiff filed a motion to dismiss the claims against the Village of Painted Post, Town of Corning, and City of Corning. (Dkt. 38). Those Defendants filed a response supporting dismissal of the claims against them. (Dkt. 44).
On May 26, 2023, NYSED filed a motion to dismiss Plaintiff‘s amended complaint. (Dkt. 42). Plaintiff filed his opposition on June 20, 2023. (Dkt. 53).
On June 9, 2023, the District Defendants filed a motion to dismiss Plaintiff‘s amended complaint. (Dkt. 49). Plaintiff filed his opposition on June 30, 2023 (Dkt. 55), and on July 21, 2023, the District Defendants filed their reply (Dkt. 58).
DISCUSSION
I. Legal Standard
“In considering a motion to dismiss for failure to state a claim pursuant to
“While a complaint attacked by a
“Subject matter jurisdiction is a threshold question that must be resolved before proceeding to the merits.” United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014) (quotation and alteration omitted). “A district court properly dismisses an action under
“Where . . . the defendant moves for dismissal under
II. Plaintiff‘s Motion To Dismiss (Dkt. 38)
Plaintiff‘s motion to dismiss the Village of Painted Post, Town of Corning, and City of Corning seeks to dismiss these Defendants from the lawsuit not as a result of a settlement but rather, as an acknowledgement that they should not have been initially named because there is no basis for liability against any of these Defendants. There being no opposition from any party, and the Court agreeing that dismissal is warranted, Plaintiff‘s motion is granted and Defendants Village of Painted Post, Town of Corning, and City of Corning are dismissed with prejudice.
III. NYSED‘s Motion to Dismiss (Dkt. 42)
NYSED moves to dismiss Plaintiff‘s amended complaint pursuant to
The Eleventh Amendment bars federal courts from exercising subject matter jurisdiction over claims against states absent their consent to such suit or an express statutory waiver of immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). It is well-settled that states are not “persons” under
Plaintiff may therefore sue the State of New York—and by extension NYSED—only to the extent it consents to be sued. See Pennhurst, 465 U.S. at 99-101. “The Supreme Court has made clear that Congress did not intend to override states’ sovereign immunity on Section 1983 claims, and it is well-established that New York has not consented to
Notwithstanding the clear Eleventh Amendment immunity, Plaintiff argues that its claims against NYSED are not limited to
Plaintiff also contends that “NYSED cannot exert 11th immunity for state tort claims and violations of state law when they expressly waived that immunity through specific legislation” (Dkt. 53 at 4); yet Plaintiff does not cite any persuasive legal authority for that proposition. This argument stretches the bounds of reasonable advocacy.
The law is clear that Plaintiff‘s state law claims fare no better than the
Accordingly, because the Court lacks subject matter jurisdiction over the claims asserted against NYSED, NYSED‘s motion to dismiss all claims asserted against it in the amended complaint is granted and the claims are dismissed without prejudice.2
IV. District Defendants’ Motion to Dismiss (Dkt. 49)
The District Defendants argue that Plaintiff‘s amended complaint fails to state
A. Monell Claim Pursuant to 42 U.S.C. § 1983 (Second Cause of Action)
At the outset, the District Defendants challenge the sufficiency of Plaintiff‘s
“Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). “To state a valid claim under
Municipalities cannot be held vicariously liable under
School districts3 constitute municipal entities subject to claims of liability pursuant to
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of
those who come into contact with the municipal employees.
Id. at *16 (quoting Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010)); Hurdle v. Bd. of Educ. of City of New York, 113 F. App‘x 423, 424-25 (2d Cir. 2004) (“A school district‘s liability under Monell may be premised on any of three theories: (1) that a district employee was acting pursuant to an expressly adopted official policy; (2) that a district employee was acting pursuant to a longstanding practice or custom; or (3) that a district employee was acting as a ‘final policymaker.‘” (quotation and citation omitted)); see also Dole v. Huntington Union Free Sch. Dist., 699 F. App‘x 85, 87 (2d Cir. 2017) (“A school district is a municipal entity, and as such, cannot be held liable pursuant to
Plaintiff contends that the District had “a policy to employ teachers who previously committed racial discrimination against its students.” (Dkt. 55 at 4; see also Dkt. 37 at ¶¶ 51, 52 (the District had “a policy that employees who make racially discriminatory comments directed at students will still be allowed to work for the district and around students who can be subjected to their racial discrimination,” which “demonstrates deliberate indifference to the plight of the Plaintiff and other students who are similarly situated.“)). In other words, the basis for Plaintiff‘s theory of Monell liability is that the District had either a formal or informal policy to permit employees engaged in racially discriminatory behavior to work with students.
“Importantly, courts have dismissed custom or practice Monell claims that rely solely on one instance of conduct to prove the existence [of] a persistent and widespread custom. In fact, the very foundation of Monell liability rests upon the notion that ‘isolated acts . . . by non-policymaking municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify liability.‘” Vasquez v. City of New York, No. 20-CV-4641 (ER), 2023 WL 8551715, at *4 (S.D.N.Y. Dec. 11, 2023) (quoting Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012)); Treadwell v. Cnty. of Putnam, No. 14 Civ. 10137 (KMK), 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (”Monell liability does not derive
Here, the allegations in Plaintiff‘s amended complaint concerning an alleged policy or custom by the District to wrongfully reinstate disciplined employees solely concern Defendant Stone; there are no allegations that any other employees have been similarly reinstated. Likewise, Plaintiff‘s allegations of deliberate indifference contain no information demonstrating that this purported policy has affected students other than Plaintiff. In other words, Plaintiff has failed to plausibly allege that the conduct at issue was part of a persistent or widespread discriminatory practice or amounted to anything other than a single incident of alleged unconstitutional activity, which is insufficient under Monell. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.“); Porath v. City of New York, No. 22CIV1302JPCSLC, 2023 WL 9197680, at *13 (S.D.N.Y. Dec. 21, 2023) (“[I]solated acts . . . by non-policymaking municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability.” (quoting Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012))), adopted, 2024 WL 127025 (S.D.N.Y. Jan. 11, 2024); Turner v. Correct Care Sols., No. 18 Civ. 3370 (VB), 2019 WL 1115857, at *13 (S.D.N.Y. Mar. 11, 2019) (granting motion to dismiss Monell claim, advising that “to adequately plead a policy or custom under Monell, plaintiff must plausibly allege similar incidents involving others.“). To the extent that any allegations in Plaintiff‘s amended complaint suggest that the purported conduct was pursuant to a policy, they are wholly conclusory and lack any factual detail. Vasquez, 2023 WL 8551715, at *5 (“Similarly, courts dealing with Monell claims have disregarded the use of conclusory allegations that do not provide additional support that a plaintiff‘s experience is consistent with a larger pattern of similar conduct.” (quotations omitted)).
For these reasons, Plaintiff‘s Monell claim against the District is dismissed for failure to state a plausible claim.
B. Equal Protection Claim § 1983 (First Cause of Action)
The District Defendants argue that Plaintiff has failed to state a cognizable claim for violation of his rights under the Equal Protection Clause. As to certain Defendants, the Court agrees.
“Generally, to maintain an Equal Protection claim, a plaintiff must ‘show adverse treatment of individuals 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.‘” Terrill v. Windham-Ashland-Jewett Cent. Sch. Dist., 176 F. Supp. 3d 101, 110 (N.D.N.Y. 2016) (quoting Miner v. Clinton Cty., 541 F.3d 464, 474 (2d Cir. 2008)); I.S. by & through Disla v. Binghamton City Sch. Dist., 486 F. Supp. 3d 575, 605 (N.D.N.Y. 2020) (“To state a race-based claim under the Equal Protection Clause, a plaintiff must allege that a government
To plausibly state an Equal Protection claim pursuant to
In addition, with respect to any
Here, Plaintiff‘s amended complaint alleges that notwithstanding Defendant Barber‘s express knowledge that Defendant Stone used a racial epithet
As to Defendant Ainsworth and Defendant Elsasser, the only allegations at all in Plaintiff‘s amended complaint relating to them state that they “were aware of Defendant Stone‘s conduct and the subsequent occurrences but were indifferent to the continued suffering of the Plaintiff,” and that “[d]espite an affirmative duty to keep public educational spaces free from racial intolerance, they failed to address the racial discrimination and failed to intervene when Defendant Stone was rehired by Corning-Painted Post Area School District which caused more distress to Plaintiffs.” (Dkt. 37 at ¶ 37). These allegations lack any specificity and do not demonstrate the requisite personal involvement to establish intentional discriminatory conduct, nor do they suggest that these Defendants’ indifference rose to the level to establish liability of intentional discrimination or that their actions were clearly unreasonable in light of known circumstances. See Chandrapaul v. City Univ. of New York, No. 14CIV790(AMD)(CLP), 2016 WL 1611468, at *23 (E.D.N.Y. Apr. 20, 2016) (“[A]llegations of discrimination under the
Moreover, to the extent that Plaintiff suggests that any reference to “Defendants” generally suffices to state a claim as to all Defendants in a manner that would salvage these claims, again the Court disagrees that group pleading saves Plaintiff‘s claims. See 5465 Route 212, LLC v. New York State Dep‘t of Transportation, No. 119CV01510(BKS/DJS), 2020 WL 6888052, at *9 (N.D.N.Y. Nov. 24, 2020) (dismissing claims where the “amended complaint fails to differentiate among the
For these reasons, Plaintiff‘s
C. Substantive Due Process Violation § 1983 (Third Cause of Action)
The District Defendants have moved to dismiss the third cause of action alleging a substantive due process violation (Dkt. 49-1 at 24-25), and Plaintiff wholly fails to respond to the arguments asserted with respect to this claim (see generally Dkt. 55). The District Defendants argue that Plaintiff‘s failure to address the portion of their motion seeking dismissal of the claim for substantive due process necessitates dismissal of the claim. The Court agrees.
“[I]n the case of a counseled party, a court may, when appropriate, infer from a party‘s partial opposition that relevant claims or defenses that are not defended have been abandoned.” Jones v. Pawar Bros. Corp., 434 F. Supp. 3d 14, 20 n.4 (E.D.N.Y. 2020) (quoting Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014)); see also Kurtz v. Hansell, No. 20 CIV. 3401 (PAE), 2021 WL 1143619, at *16 (S.D.N.Y. Mar. 24, 2021) (holding that by failing to respond to argument on motion to dismiss “plaintiffs have abandoned that claim“); East v. Roosevelt Union Free Sch. Dist., No. CV193709JSAKT, 2020 WL 13753159, at *20 (E.D.N.Y. July 31, 2020) (“Courts in the Second Circuit have found that ‘[a] plaintiff‘s failure to respond to contentions raised in a motion to dismiss claims constitutes an abandonment of those claims.‘” (quoting Laface v. Eastern Suffolk Boces, 349 F. Supp. 3d 126, 161 (E.D.N.Y. 2018))); Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-CV-442 TPG FM, 2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage, where review is limited to the pleadings, a plaintiff abandons a claim by failing to address the defendant‘s arguments in support of dismissing that claim.“).
By not addressing the merits of the claim in opposition to the District Defendants’ motion to dismiss, Plaintiff has
D. Negligent Hiring and Supervision § 1983 (Fourth Cause of Action)
Plaintiff does not address the District Defendants’ motion to dismiss his negligence claims other than to clarify that his fourth cause of action is for negligence pursuant to
Initially, to the extent that Plaintiff‘s
For these reasons, the District Defendants’ motion to dismiss Plaintiff‘s claim for negligent hiring and supervision pursuant to
E. Negligent Retention and Negligent Performance of a Governmental Function (Eighth and Ninth Causes of Action)
As noted, Plaintiff does not meaningfully address the District Defendants’ motion to dismiss his negligence claims other than to clarify that his fourth cause of action is for negligence pursuant to
However, because Plaintiff does at least reiterate his intention to pursue the claim, the Court will consider the claims on the merits. These claims in Plaintiff‘s amended complaint allege that the District Defendants failed to take appropriate affirmative action and were negligent in protecting Plaintiff and providing him with a school environment that was free from racial discrimination and harassment, which caused him injury and suffering.
“To establish a prima facie case of negligence under New York law, ‘a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.‘” Crout v. Haverfield Int‘l, Inc., 269 F. Supp. 3d 90, 96 (W.D.N.Y. 2017) (quoting Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir. 2006)). In addition, “to state a claim for negligent supervision, hiring, training or retention of employees, a plaintiff must allege, in addition to the usual elements of negligence, that the defendant employer ‘knew of [an] employee‘s propensity to commit the alleged acts or that defendant should have known of such propensity had it conducted an adequate hiring procedure.‘” AA by BB v. Hammondsport Cent. Sch. Dist., 527 F. Supp. 3d 501, 508 (W.D.N.Y. 2021) (quoting N.U. v. East Islip Union Free Sch. Dist., 2017 WL 10456860 at *16 (E.D.N.Y. 2017)). Also, the employee‘s actions must have been outside the scope of employment. Id.
“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.” Motta ex rel. Motta v. Eldred Cent. Sch. Dist., 141 A.D.3d 819, 820 (2016) (quoting Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994)); see also 41 Doe v. Poly Prep Country Day Sch., No. 20CV03628 (DG)(SJB), 2021 WL 4310891, at *12 (E.D.N.Y. Sept. 22, 2021) (“Starting with the duty element, it is well settled that [i]n New York, schools are under a special duty of in loco parentis, which obligates them to exercise such care of [their charges] as a parent of ordinary prudence would observe in comparable circumstances.” (citations and quotations omitted)).
Plaintiff has sufficiently pleaded the elements of such a claim for purposes of a
As to Defendant Ainsworth and Defendant Elsasser, as set forth above, Plaintiff‘s amended complaint lacks any specificity as to what these Defendants knew, what role they played in the circumstances at issue, and any concrete basis for liability against them. Plaintiff had the opportunity to remedy the deficiencies in his complaint with respect to Defendant Ainsworth and Defendant Elsasser to amplify the basis for his claims against them, but failed to do so. Accordingly, the District Defendants’ motion to dismiss these claims is denied as to the District and Defendant Barber, but granted as to Defendant Ainsworth and Defendant Elsasser.
F. Intentional Infliction of Emotional Distress (Fifth Cause of Action)
“The New York state law tort of intentional infliction of emotional distress ‘has four elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress.’ . . . Furthermore, ‘New York sets a high threshold for conduct that is “extreme and outrageous” enough to constitute intentional infliction of emotional distress.‘” A.M. ex rel. J.M. v. NYC Dep‘t of Educ., 840 F. Supp. 2d 660, 690 (E.D.N.Y. 2012) (quoting Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996)), aff‘d, 513 F. App‘x 95 (2d Cir. 2013). The conduct at issue must be “so outrageous in character,
Here, not only has Plaintiff failed to allege conduct so extreme and outrageous to go beyond all bounds of decency by the District Defendants, but also absent from the amended complaint are allegations that the District Defendants acted with the intention to inflict emotional distress on Plaintiff. Even if Defendant Stone‘s alleged conduct is considered to transcend standards of decency, the same cannot be said for any alleged conduct of the District Defendants. See Gray v. Schenectady City Sch. Dist., 86 A.D.3d 771, 773 (3d Dep‘t 2011) (“Despite this sufficient claim against Raucci, defendant‘s mere inaction after receiving complaints about Raucci‘s behavior—which allegedly allowed him to continue to engage in this behavior in spite of the notice regarding his actions—cannot be considered the type of extreme and outrageous conduct that is ‘utterly intolerable in a civilized community‘” (quotation and citation omitted)). Thus, taking the allegations against the District Defendants as true, Plaintiff has not plausibly alleged that any of the District Defendants intentionally inflicted emotional distress upon Plaintiff—this, notwithstanding being given the opportunity to amend the complaint. For these reasons, the Court will grant the District Defendants’ motion to dismiss Plaintiff‘s claim for intentional infliction of emotional distress against them.
G. Negligent Infliction of Emotional Distress (Sixth Cause of Action)
Plaintiff‘s cause of action for negligent infliction of emotional distress requires him “to show a breach of duty owed to [him or] her which unreasonably endangered [his or] her physical safety, or caused [him or] her to fear for [his or] her own safety.” A.M.P. v. Benjamin, 201 A.D.3d 50, 2021 WL 5496954, at *3 (3d Dep‘t 2021) (citation and quotation omitted). But “[u]nder New York law, claims are duplicative when both ‘arise from the same facts and seek the identical damages for each alleged breach.‘” C.Q. v. Est. of Rockefeller, No. 20-CV-2205 (VSB), 2021 WL 4942802, at *4 (S.D.N.Y. Oct. 21, 2021) (quoting Deutsche Bank Nat‘l Tr. Co. v. Quicken Loans Inc., 810 F.3d 861, 869 (2d Cir. 2015)). In similar cases, courts have concluded that claims for negligent infliction of emotional distress are duplicative of other negligence-based claims and dismissed the negligent infliction of emotional distress claims. See Watkins v. Harlem Ctr. for Nursing & Rehab., LLC, No. 20 CIV. 2919 (KPF), 2021 WL 4443968, at *14 (S.D.N.Y. Sept. 28, 2021) (“Here, Plaintiffs’ claim for negligent infliction of emotional distress must be dismissed because it is duplicative of their claim for negligence. Fatally, both claims rest on the same facts and seek the same damages.“); PC-41 Doe, 2021 WL 4310891, at *15 (“And in similar [Child Victim Act] actions, both NIED and premises liability claims have been dismissed as duplicative of other tort claims.” (collecting cases)); Fay v. Troy City Sch. Dist., 197 A.D.3d 1423, 1424 (3d Dep‘t 2021) (“The conduct complained of in the causes of action for premises liability and negligent infliction of emotional distress falls entirely within the scope of plaintiff‘s separate causes of action for negligence, negligent supervision and negligent retention. Thus, the premises liability and negligent infliction of emotional distress claims must be dismissed as duplicative of the negligence, negligent supervision and negligent
H. New York Executive Law § 296 Human Rights Law Violation (Seventh Cause of Action)
Although the District Defendants devoted over two pages of their brief to their argument seeking dismissal of Plaintiff‘s claim asserted pursuant to
I. Qualified Immunity
Finally, with the Equal Protection claim against Defendant Barber withstanding dismissal, the Court must consider the argument that he is entitled to qualified immunity. “A qualified immunity defense is established if (a) the defendant‘s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) (citation omitted). Although claims of qualified immunity “should be decided as early as possible in a case,” it “is often best decided on a motion for summary judgment when the details of the alleged deprivations are more fully developed.” Walker v. Schult, 717 F.3d 119, 130 (2d Cir. 2013); see also McKenna v. Wright, 386 F.3d 432, 435-36 (2d Cir. 2004) (noting that generally “the defense of qualified immunity cannot support the grant of a [Rule] 12(b)(6) motion for failure to state a claim upon which relief can be granted“) (alteration in original) (quoting Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983)). Therefore, “a defendant asserting a qualified immunity defense on a motion to dismiss ‘faces a formidable hurdle . . . and is usually not successful.‘” Barnett v. Mt. Vernon Police Dep‘t, 523 F. App‘x 811, 813 (2d Cir. 2013) (quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006)). “The defense will succeed only where entitlement to qualified immunity can be established ‘based [solely] on facts appearing on the face of the complaint.‘” Id. (quoting McKenna, 386 F.3d at 436).
Granting a qualified immunity defense is not appropriate at this juncture. It is clearly established law that Plaintiff is entitled to an educational environment free of discrimination or deliberate indifference to reports of harassment. Similarly, qualified immunity requires a finding of objective reasonableness, which would be inconsistent with the Court‘s finding that Plaintiff has plausibly alleged an Equal Protection claim. Taking Plaintiff‘s allegations as true, the Court cannot conclude that the actions of Defendant Barber did not violate clearly established law, or that it was objectively reasonable for him to believe his actions did not violate clearly established law. See Cole-Hatchard v. Hoehmann, No. 16 CV 5900 (VB), 2020 WL 5645815, at *12 (S.D.N.Y. Sept. 21, 2020) (“Moreover, the record evidence
CONCLUSION
For the foregoing reasons, the Court grants Plaintiff‘s motion to dismiss Defendants Village of Painted Post, Town of Corning, and City of Corning with prejudice. (Dkt. 38). The Court grants NYSED‘s motion to dismiss the claims asserted against it without prejudice for lack of subject matter jurisdiction. (Dkt. 42). The Court grants in part and denies in part the District Defendant‘s motion to dismiss. (Dkt. 49). Specifically, the motion to dismiss is granted except as to Plaintiff‘s claim for Equal Protection against Defendant Barber (first cause of action) and state law negligence claims against the District and Defendant Barber (eighth and ninth causes of action). The Clerk of Court is directed to terminate Defendants Village of Painted Post, Town of Corning, City of Corning, NYSED, Corning-Painted Post High School, Corning-Painted Post Middle School, Defendant Ainsworth, and Defendant Elsasser.
SO ORDERED.
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: March 7, 2024
Rochester, New York