Cavello v. Sherburne-Earlville Cent. School Dist.

• Decision Date: 17 October 1985
• Docket Number: SHERBURNE-EARLVILLE
• Citation: Cavello v. Sherburne-Earlville Cent. School Dist., 494 N.Y.S.2d 466, 110 A.D.2d 253 (N.Y. App. Div. 1985)
• Parties: , 28 Ed. Law Rep. 537 Anthony CAVELLO et al., Appellants, v.CENTRAL SCHOOL DISTRICT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 466

494 N.Y.S.2d 466

110 A.D.2d 253, 28 Ed. Law Rep. 537

Anthony CAVELLO et al., Appellants, v. SHERBURNE-EARLVILLE CENTRAL SCHOOL DISTRICT, Respondent.

Supreme Court, Appellate Division Third Department.

Oct. 17, 1985.

Ronald R. Benjamin, Binghamton, for appellants.

Hogan & Sarzynski (Edward J. Sarzynski, Binghamton, of counsel), for respondent.

Before MAIN, J.P., and WEISS, YESAWICH, LEVINE and HARVEY, JJ.

YESAWICH, Justice.

Plaintiffs Anthony and Ginger Cavello are the parents of two infant children, plaintiffs Anthony, Jr. (AJ) and Tina Cavello. The allegations of the complaint, which are assumed to be true for purposes of the motion to dismiss for failure to state a cause of action which is the subject of this appeal (Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 236 N.E.2d 634), assert the following: that in January of 1983, the Cavello family moved to Chenango County where Tina and AJ thereupon enrolled as high school students in defendant, Sherburne-Earlville Central School District; soon after starting classes, Tina was ceaselessly badgered by another female student named Bobby Jo; verbal abuse, foul language, death threats and the brandishing of a knife characterized the ongoing harassment which Tina claims to have suffered for nearly a year; Tina's brother AJ was subjected to considerably less, but like, harassment.

It is further alleged that plaintiffs repeatedly advised defendant's guidance counselors, dean of students and superintendent of schools of the intimidating conditions created by Bobby Jo, and thereafter, by the latter's sister and friends, and that to protect Tina, defendant's officials first segregated her from other students by having her study in the guidance offices and later arranged for tutoring at home. As a specific example of reckless disregard for the safety of Tina, plaintiffs point to an instance when a school guidance counselor "placed Tina and Bobby Jo in a room, telling Bobby Jo to lock the door from the inside and 'settle your differences' ". Plaintiffs further state that school officials informed the parents in February 1984 that "it was too dangerous for their children Tina and Anthony, Jr. to come to school and stated that the District would provide the children a correspondence course".

The complaint concludes that negligent handling of the problem by defendant's officials deprived the Cavello children of education and training and subjected them to continuous emotional distress, for all of which the children seek compensatory damages. In addition to damages for emotional distress, the parents also seek to recover those sums they maintain they will be obliged to expend in the future to secure an appropriate education for their children.

Special Term embraced defendant's suggestion that plaintiffs' complaint sounded only in educational malpractice, a cause of action not recognized in New York (Hoffman v. Board of Educ. of City of N.Y., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317; Donohue v. Copiague Union Free School Dist., 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352), and dismissed the complaint in its entirety. Plaintiffs contend that their complaint merely charges defendant with common-law negligence, that of failing to provide adequate supervision over students under its control.

The Donohue and Hoffman decisions undeniably preclude students from suing school officials for an alleged failure to reach educational objectives. Accordingly, to the extent that the complaint seeks...