Collazo v. Hicksville Union Free Sch. Dist.

• Decision Date: 16 July 2019
• Docket Number: 600190/19
• Citation: 108 N.Y.S.3d 708,65 Misc.3d 268
• Parties: Angelina COLLAZO, as Adminisratrix of the Estate of Angelo Javier Collazo, Deceased, and Angelina Collazo, Individually, Plaintiff, v. HICKSVILLE UNION FREE SCHOOL DISTRICT, Defendant.
• Court: New York Supreme Court

65 Misc.3d 268

108 N.Y.S.3d 708

Angelina COLLAZO, as Adminisratrix of the Estate of Angelo Javier Collazo, Deceased, and Angelina Collazo, Individually, Plaintiff,

v.HICKSVILLE UNION FREE SCHOOL DISTRICT, Defendant.

600190/19

Supreme Court, Nassau County, New York.

Decided on July 16, 2019

Attorneys for Plaintiffs

Alexandra T. Busa, Esq.

McAndrew Conboy & Prisco

1860 Walt Whitman Road

Melville, NY 11747

Attorneys for Defendant

Laura Endrizzi, Esq.

Congdon Flaherty O'Callaghan, Reid,

Donlon, Travis & Fishlinger

333 Earle Ovington Blvd., Ste. 502

Uniondale, NY 11556

Jeffrey S. Brown, J. Motion by defendant Hicksville Union Free School District (HUFSD or District), pursuant to CPLR § 3211(a) (7), for an order dismissing the second and third causes of action in the complaint. Cross-motion by the plaintiff to amend the complaint.

Plaintiff Angelina Collazo, as administratrix of the estate of her son Angelo Javier Collazo, deceased, commenced this action against the defendant alleging, among other things, common law negligence, wrongful death, and violation of the Dignity for All Students Act (DASA). By her complaint, plaintiff alleges that her son died after being struck by a train near the Hicksville LIRR railroad station in an apparent suicide.

Plaintiff served a notice of claim on the defendant HUFSD on January 3, 2018 and testified at a GML 50-h hearing on June 20, 2018. According to her testimony, Angelo's death occurred on November 2, 2017. The decedent sustained multiple blunt impact injuries when he was struck by a train on the LIRR Hicksville railroad tracks in the Town of Oyster Bay. Angelo was a student of the HUFSD who suffered from scoliosis and was severely bullied throughout his elementary education by his peers due to his appearance and mannerisms caused by his condition. When he entered Hicksville Middle School, a school located within the District, the bullying continued and progressively worsened. When the decedent reached the eleventh grade at Hicksville High School, also located within the District, he underwent a spinal surgery to correct his scoliosis. He returned to the high school on September 8, 2017 but the bullying continued. Administrators were notified of the situation, but the bullying did not subside. As a result of the persistent bullying, Angelo suffered both emotionally and academically, and in the end, took his own life.

The first count of the complaint is a negligence claim that seeks compensation for the physical, emotional and mental injuries suffered by the decedent prior to his death. Count I states that "[d]efendant HUFSD had a duty to supervise plaintiff's decedent" and "failed to adequately and properly supervise ANGELO JAVIER COLLAZO." The second cause of action is premised upon violation of the DASA. In particular, count II states that "[p]ursuant to the Dignity for All Students Act, the defendant had the duty to, among other things, investigate all incidents of bullying and to take prompt action to prevent recurrence of the behavior, and ensure the safety of the student or students against whom such harassment, bullying or discrimination was directed" and that "[t]he defendants failed to undertake such investigations and to take such prompt action as required under the statute to prevent the injuries sustained by ANGELO JAVIER COLLAZO." The third cause of action is a wrongful death claim, stating that "as a result of the defendant's negligence, plaintiff's decedent ANGELO JAVIER COLLAZO was caused to sustain serious personal injuries resulting in his death." The final cause of action is a derivative claim and seeks compensation for plaintiff's loss of the services and society of her son sustained prior to his death.

In sum, according to plaintiff, the District failed to exercise adequate supervision over the deceased, and when notified of continuing bullying of the deceased by his fellow students, failed to timely implement adequate measures to stop the bullying.

On a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211(a)(7), the court must determine whether, from the four corners of the pleading "factual allegations are discerned, which taken together, manifest any cause of action cognizable at law." ( Salvatore v. Kumar , 45 A.D.3d 560, 845 N.Y.S.2d 384 [2d Dept. 2007], lv. to app den. 10 N.Y.3d 703, 854 N.Y.S.2d 104, 883 N.E.2d 1011 [2008], quoting Morad v. Morad , 27 A.D.3d 626, 627, 812 N.Y.S.2d 126 [2006] ). Further, the pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, and the plaintiff accorded the benefit of every possible favorable inference. ( Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). However, "[w]hile the allegations in the complaint are to be accepted as true when considering a motion to dismiss, ‘allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration.’ " ( Garber v. Board of Trustees of State Univ. of N.Y. , 38 A.D.3d 833, 834, 834 N.Y.S.2d 203 [2d Dept. 2007], quoting Maas v. Cornell Univ. , 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999] ).

On this motion, the defendant HUFSD contends that the wrongful death claim must be dismissed as it did not have or breach any legal duty to prevent Angelo from taking his own life. Defendant contends that Angelo's death occurred after school hours, when it was not in control or custody of the defendant. Further, the defendant contends it did not have a special relationship with the deceased that would impose a duty while he was outside of the school's custody and control.

As a starting point, "[n]egligence arises from a breach of a legal duty, .... and is not actionable unless it results in damage to a person to whom the legal duty is owed." ( NY PJI3d 2:10 at 232 [2017] ). A duty can arise "where there is a relationship either between defendant and third-party tortfeasor that encompasses defendant's actual control of the third person's actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others." ( Hamilton v. Beretta U.S.A. Corp. , 96 N.Y.2d 222, 233, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001] ). The key to existence of such a duty is that the "defendants' relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm" and that the "specter of limitless liability is not present because the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship." ( Id. ; see also Matter of New York City Asbestos Litig. , 5 N.Y.3d 486, 493-494, 806 N.Y.S.2d 146, 840 N.E.2d 115 [2005] ). "Foreseeability, alone, does not define duty—it merely determines the scope of the duty once it is determined to exist." ( Hamilton , 96 N.Y.2d at 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 ).

"In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated." ( Mathis v. Board of Educ. of City of N.Y. , 126 A.D.3d 951, 952, 7 N.Y.S.3d 182 [2d Dept. 2015] [quotation omitted] ). Additionally, "the injuries sustained by a plaintiff must be proximately caused by the school's breach of its duty to provide adequate supervision." ( Motta ex rel. Motta v. Eldred Cent. Sch. Dist ., 141 A.D.3d 819, 821, 36 N.Y.S.3d 239 [3d Dept. 2016] ; see also Wood v. Watervliet City School District , 30 A.D.3d 663, 815 N.Y.S.2d 360 [3d Dept. 2006] ["[T]he test for causation is ‘whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school's negligence.’ " [quoting Mirand v. City of New York , 84 N.Y.2d 44, 50, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994] ] ).

However, " ‘a school is not an insurer of the safety of its students’ ( Tarnaras v. Farmingdale School Dist ., 264 A.D.2d 391, 392, 694 N.Y.S.2d 413 ). Its duty of care stems from effectively taking the place of parents and guardians and is ‘coextensive with and concomitant to its physical custody of and control over the child’ ( Pratt v. Robinson , 39 N.Y.2d 554, 560 [384 N.Y.S.2d 749, 349 N.E.2d 849] ; see Chainani v. Board of Educ. of City of N.Y. , 201 A.D.2d 693, 608 N.Y.S.2d 283, aff’d . 87 N.Y.2d 370, 639 N.Y.S.2d 971, 663 N.E.2d 283 ). A school's custodial duty ceases once the student has passed out of its orbit of authority and the parent is perfectly free to reassume control over the child's protection (see Pratt v. Robinson , 39 N.Y.2d at 560 [384 N.Y.S.2d 749, 349 N.E.2d 849] ). Generally, a school cannot be held liable for injuries that occur off school property and beyond the orbit of its authority (see Bertrand v. Board of Educ. of City of N.Y. , 272 A.D.2d 355, 707 N.Y.S.2d 218 )."

( Molina v. Conklin , 57 A.D.3d 860, 861–62, 871 N.Y.S.2d 230 [2d Dept. 2008] ; see also Vernali v. Harrison Cent. School Dist. , 51 A.D.3d 782, 857 N.Y.S.2d 699 [2d Dept. 2008] ).

On the present record, the court finds that the plaintiff's claims for wrongful death premised on negligence of the defendant HUFSD must fail. Angelo's death occurred after school hours and off school premises, where the school district did not have control over him. There is no allegation that school officials were on notice of the possibility of Angelo's suicide or were under a distinct duty to guard against it. (See Elissa v. City of New York , 44 Misc. 3d 526, 990 N.Y.S.2d 780 [Sup. Ct. Queens County 2014] [school could not be held liable for suicide occurring after release from school custody in the absence of a special duty owed to the decedent] [citing Morgan-Word...