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					H. v. County of Nassau, 1229/05
Decided: August 5, 2008
NASSAU COUNTY
Supreme Court

Justice Feinman
Click here to see Judicial Profile

The defendants, Jericho High School, Jericho Union Free School District, Gerard J. Cairns, Isben Jeudy and Claire Hochheiser,
(hereinafter collectively referred to as the “school”), move for an order pursuant to CPLR §3212 granting summary judgment to
the moving defendants. The plaintiffs submit opposition. The defendants submit a reply affirmation.

PROCEDURAL BACKGROUND

The plaintiffs initiated this action against the defendants for engaging in slanderous and libelous communications concerning the
plaintiff, J.H., with respect to his son, a ninth-grade student at Jericho High School at the time of the incident. The plaintiffs claim
that the defendants’ communications to Child Protective Services, (CPS), on November 7, 2003 were motivated by “malice, ill-will
and revenge, and were not based in good faith”.

The defendants previously moved for summary judgment by way of motion submitted May 25, 2005. This Court issued a decision
dated July 18, 2005 denying the defendants’ motion for summary judgment. This Court’s decision provided, inter alia, that the
defendants, in their moving papers, submitted only the affidavit of the defendant, Gerard J. Cairns, Principal of Jericho High
School, whereby the Cairns’ affidavit relied on hearsay statements to support the motion. The defendants appealed this Court’s
order dated July 18, 2005. The Appellate Division, Second Department, by way of Decision and Order dated May 30, 2006,
modified this Court’s prior order, by adding thereto, after the word “denied”, the words “without prejudice to renew after discovery
is completed”. The Second Department stated that the defendants submitted the affidavit of the defendant, Gerard J. Cairns, the
school principal, who stated that the complaint to CPS was based upon communications between the child and the school
psychologist, however the defendants did not submit an affidavit from the school psychologist. Additionally, the Second
Department provided that the defendant did not refute that the principal told the plaintiff, J.H., in response to asking him why he
called CPS, that the principal told J.H. because “I can do anything I want to”. Therefore, sufficient facts were “alleged” to raise an
issue or fact as to malice.

This matter has been certified and the plaintiff has filed a note of issue.

BACKGROUND

The defendants, in support of their motion, refer to, inter alia, the deposition transcripts of Danielle Largotta, the school
psychologist, Leah Walters, the case manager assigned to plaintiffs’ son, M.H., and Claire Restaino-Hochheiser, the curriculum
associate for Special Education for the entire Jericho School District.

Danielle Largotta, the school psychologist, testified that prior to the incident of November 7, 2003, she knew M.H., that she saw
M.H. on a weekly basis from September of 2003, and that M.H. had been diagnosed as learning disabled. Ms. Largotta provides
that on November 7, 2003, M.H. was brought to her office. He was visibly upset and was crying. M.H. told her that he was upset,
that he had an argument with his father, that he did not want to go home because he was concerned that he and his father were
going to have a physical altercation, and that he was going to his aunt’s house in Bellmore whereby his aunt would get him a plane
ticket to Florida and he, his aunt and his cousin would stay in Florida. Ms. Largotta provides that M.H. also stated that he and his
father had previous physical altercations. M.H. would start the fight and his father would hit him back, and that two (2) years prior,
M.H.’s dad threw a baseball at M.H.’s head, missed his head, and the baseball had gone through the wall. Ms. Largotta’s notes
provide that when she asked M.H. what his mom does when they fight, M.H. stated that she leaves the house for a few hours. Ms.
Largotta’s notes provide that after she spoke with M.H. she spoke to the school principal, “Gerard”, about her communications with
M.H. and Mr. Cairns requested that she contact CPS. Thereafter, Ms. Largotta contacted CPS.

Ms. Hochheiser, the curriculum associate for Special Education, testified that on the date of the incident, she was in the presence
of Ms. Largotta and M.H., whereby “M.H. was hysterical crying, beet red, basically trying to be verbal”. Ms. Largotta testified that
M.H. stated that he wanted to leave, that he was running away to Florida, and that he could not go home because he was afraid of
what was going to happen.

Mr. Cairns testified that on the date of the incident, it was “reported to me that there were some serious concerns on the part of
Ms. Hochheiser and Ms. Largotta regarding a possible child abuse situation” whereby he made a determination that the
consultation should be reported. Mr. Cairns testified that they were required to report it to CPS. Mr. Cairns stated that he
specifically remembered an allegation that M.H. made, to wit, that M.H. came home late one evening and his father threw a
baseball at his head that just missed his head and hit a hole in the wall. Additionally, Mr. Cairns was told that M.H. had been
“walking the streets at night not going home.” Mr. Cairns also testified that he did not state to the plaintiff, J.H., that “I can do
anything I want to” on the date of the incident.

The plaintiffs claim that the defendants’ communications to CPS on November 7, 2003 were motivated by “malice, ill-will and
revenge, and not based in good faith”. The plaintiffs claim that the defendants contacted CPS solely for revenge, with an intent to
intimidate, scare and emotionally upset the plaintiff’s family in order to prevent J.H. from filing a compliant with the school
Superintendent about the language exemption issue. J.H. avers that prior to the incident, his son was removed from his Italian
class, due to its level of difficultly, and was then put in a Spanish class. J.H. provides that J.H. had been trying to get a language
exemption for his son because of the difficulty his son had with foreign languages, and that J.H. had difficulty getting the school’s
cooperation. J.H. submits that on the date of the incident, he told Ms. Hochheiser that he was going to file a complaint with the
school superintendent if his son was not exempt by Monday morning. Apparently, sometime thereafter, the school contacted CPS.
J.H. submits that the school contacted CPS as revenge, and/or in ill-will and bad faith as a result of the ongoing dispute that J.H.
had with the school concerning the language requirement.

The plaintiffs submit an affidavit on behalf of their son, M.H. M.H. avers that on the date of the incident, he cut his Spanish
language class and went to the assistant principal’s office because he had a lot of trouble with the class and wanted to be language
exempt. M.H. provides that his dad showed up at school, and before leaving the school, his dad told him to go back to class. M.H.
states that after his dad left, Ms. Largotta and J.H. continued to speak to M.H., and M.H. never returned to his Spanish class. M.H.
recalled being questioned by Ms. Largotta, J.H., Mr. Jeudy, the Assistant Principal, and Mr. Cairns. He recalled speaking to another
woman later that day from CPS. M.H. avers that he never told anyone that he had fist fights with his dad, that his dad got physical
with him, that he was afraid to go home, or that he was going to run away.

DISCUSSION

§413 of the New York State Social Services Law provides, in pertinent part, that any psychologist, or school official, who has
reasonable cause to suspect that a child before them, in their professional or official capacity, is an abused or maltreated child, is
required to cause a report to be made to the person in charge of such school, and therefore, the official may exercise the right to
request an investigation to be made. Here, the school psychologist who consulted with M.H., who was told that M.H. and his father
got into physical altercations, that on a prior occasion his father threw a baseball at his head, and that he was afraid to go home,
was required to report the consultation to CPS. (Miller v. Beck, 82 AD22d 912). §419 of the New York State Social Services Law
provides civil immunity to school officials who act in good faith in reporting child abuse, and

provides, in pertinent part, that an official participating in good faith shall have immunity from any liability that may result from
reporting a case of child abuse or maltreatment. Additionally, such official shall be presumed to be acting in discharge of their
duties.

In the instant matter, the school was required to report the alleged abuse of maltreatment of M.H. to CPS. While CPS eventually
found the reports to be “unfounded”, the school was mandated to report the matter to CPS. (Rine v. Chase, 309 AD2d 796). As
already provided, the school psychologist testified that M.H. told her that he was afraid to go home because he had prior physical
altercations with his dad. Notably, while M.H. avers he never stated to anyone that he had prior physical altercations with his dad,
M.H. did not address whether he specifically told the school psychologist that his dad threw a baseball at his head, missed and the
ball hit the wall. The school psychologist was under a statutory duty to report suspected child abuse, and under the circumstances
at bar, acted on reasonable suspicion. (Miller v. Beck, supra.)

The plaintiffs, in opposition, have not come forward with proof indicating that the school psychologist, the curriculum associate for
Special Education, the principal and/or the assistant principal were acting with malice, ill-will and revenge, when the school
contacted CPS. The plaintiffs surmise that the school acted in revenge, and/or out of fear of plaintiff reporting the school to the
superintendent, as a result of the difficulty that plaintiff was having with the school on the language exempt issue. However, the
plaintiffs have not produced evidence or facts, other then mere conclusions or speculation, from which a jury could infer malice.
(Shapiro v. Health Ins. Plan of Greater New York, 7 NY2d 56). Suspicion, surmise or accusations will not suffice. (Escalera v.
Favaro, 298 AD2d 552). “The existence of earlier disputes between the parties is not evidence of malice”. (Shapiro v. Health Ins.
Plan of Greater New York, supra.) As the plaintiffs have not presented factual allegations of malice or ill will on the part of the
school district or school psychologist, plaintiff’s complaint requires dismissal. (Miller v. Beck, supra.)

In light of the foregoing, the defendants’ motion is granted and therefore, plaintiffs’ action is dismissed

				
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