McGovern v. Nassau County Dept. of Social Servs.

• Decision Date: 31 March 2009
• Docket Number: 2007-07066.
• Citation: 876 N.Y.S.2d 141,2009 NY Slip Op 02572,60 A.D.3d 1016
• Parties: MARGUERITE McGOVERN, Appellant, v. NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant, and BOARD OF EDUCATION, LONG BEACH SCHOOL DISTRICT, Respondent.
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 1016

876 N.Y.S.2d 141

2009 NY Slip Op 02572

MARGUERITE McGOVERN, Appellant, v. NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant, and BOARD OF EDUCATION, LONG BEACH SCHOOL DISTRICT, Respondent.

2007-07066.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 31, 2009.

In an action, inter alia, to recover damages for educational malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated June 6, 2007, as granted the motion of the defendant Board of Education, Long Beach School District to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (7). [See 16 Misc 3d 1114(A) 2007 NY Slip Op 51422(U).]

Ordered that the order is affirmed insofar as appealed from, with costs.

On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), the court must accept all of the facts alleged in the pleading as true, and accord the plaintiff the benefit of every possible inference in determining whether the facts alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Kass v Zaslav, 55 AD3d 877 [2008]; Dinerman v Jewish Bd. of Family & Children's Servs., Inc., 55 AD3d 530, 531 [2008]; Flax v Lincoln Natl. Life Ins. Co., 54 AD3d 992, 994 [2008]). Applying this standard here, the complaint fails to state a cause of action against the defendant Board of Education, Long Beach School District (hereinafter the Board of Education). The plaintiff alleges, inter alia, that the Board of Education ignored the concerns she expressed about her daughter's reading skills when the child was in elementary school, and inappropriately placed the child in a special education class when she reached middle school. These allegations sound in educational malpractice, which has not been recognized as a cause of action in this state because public policy precludes judicial interference with the professional judgment of educators and with educational policies and practices (see Torres v Little Flower Children's Servs., 64 NY2d 119, 126-127 [1984]; Hoffman v Board of Educ. of City of N.Y., 49 NY2d 121, 125 [1979]; Donohue v Copiague Union Free School Dist., 47 NY2d 440, 444 [1979]; Livolsi v Hicksville Union-Free School Dist., 263 AD2d 447 [1999]; Suriano v Hyde Park Cent. School Dist., 203 AD2d 553, 554 [1994]).

Furthermore, the plaintiff's allegations that she has reason to believe that the Board of Education tampered with her daughter's school records in an unspecified manner, and concealed information or provided false information in connection with a child protective proceeding charging the plaintiff with educational neglect, do not set forth the requisite elements of a fraud claim with the particularity required by CPLR 3016 (b) (see Sargiss v Magarelli, 50 AD3d 1117, 1118 [2008]; Boyle v Burkich, 245 AD2d 609 [1997]; Sirohi v Lee, 222 AD2d 222 [1995]). The complaint also fails to state a cause of action to recover damages for either intentional or negligent infliction of emotional...