The following papers were read on this motion Documents Numbered MS 1 MS 2 Notice of Motion, Cross Motion, Affidavits, Affirmations, Exhibits 4 13 Opposition Papers 13 18 Reply Papers 18 20 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 [2d Dept 2007], lv. to app den. 10 N.Y.3d 703 [2008], quoting Morad v. Morad, 27 A.D.3d 626, 627 [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 [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 [2d Dept 2007], quoting Maas v. Cornell Univ., 94 N.Y.2d 87, 91 [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 [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 [2005]). “Foreseeability, alone, does not define duty — it merely determines the scope of the duty once it is determined to exist.” (Hamilton, 95 N.Y.2d at 232). “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 [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 [3d Dept 2016]; see also Wood v. Watervliet City School District, 30 A.D.3d 663 [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 [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; see Chainani v. Board of Educ. of City of N.Y., 201 A.D.2d 693, 608 N.Y.S.2d 283, affd. 87 N.Y.2d 370). 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). 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 [2d Dept 2008]; see also Vernali v. Harrison Cent. School Dist., 51 AD3d 782 [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 [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 v. New York City Dept. of Educ., 96 A.D.3d 1025 [2d Dept 2012]). To the extent that plaintiff’s counsel argues that a statutory duty imposed by federal law eliminates the requirement that the death occur while Angelo was within the defendant’s custody and control, the court notes that the proposed amended complaint does not reflect such a claim. The wrongful death cause of action remains premised solely on defendant’s negligence. The statutory claims of the proposed amended complaint assert physical, mental and emotional injuries sustained by Angelo but do not tie his death to these violations. Accordingly, the court need not address the issue of whether such statutory violations can form the basis of a wrongful death claim under these circumstances. The court notes, however, that such a connection is doubtful. (See, e.g. Begley v. City of New York, 111 A.D.3d 5 [2d Dept 2013]). In response to defendant’s motion to dismiss, plaintiff cross-moves to amend her complaint. Plaintiff discontinues her DASA cause of action (see Eskenazi-McGibney v. Connectquot Central School District, 169 A.D.3d 8 [2d Dept 2018]) and seeks to add four new causes of action under Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, Title IX of the Education Amendments of 1972, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiff argues that defendant would not be prejudiced if she were granted leave to amend her complaint, and amendment should be freely granted. New York courts have generally held that leave to amend should be freely given absent prejudice or surprise to the defendant. (Juerss v. Millbrook Cent. Sch. Dist., 161 A.D.3d 967, 77 N.Y.S.3d 674 [2d Dept 2018]). Notwithstanding these liberal standards, the decision to grant or deny a party’s motion for leave to amend “is committed to the broad discretion of the court.” In the absence of prejudice or surprise to the opposing party, leave to amend pleadings should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. (Yong Soon Oh v. Hua Jin, 124 A.D.3d 639 [2d Dept 2015]). Generally, claims under Title II of the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act are analyzed identically. (See Preston v. Hilton Cent. School Dist., 876 F.Supp.2d 235, 241 [W.D.N.Y.2012]; Rehabilitation Act of 1973, §504(a), 29 U.S.C.A. §794(a); Americans with Disabilities Act of 1990, §202, 42 U.S.C.A. §12132). To state a prima facie cause of action under the relevant provisions of the Rehabilitation Act or the ADA, the plaintiff must show “‘(1) that [he] is a qualified individual with a disability; (2) that the defendants are subject to [the pertinent statute]; and (3) that [he] was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or was otherwise discriminated against by defendants, by reason of [his] disability.’” (Preston, 876 F.Supp.2d at 241). Denial of the opportunity to participate in or benefit from defendants’ services does not require physical prevention from access; rather, a plaintiff may establish harassment by other students that is “so severe, pervasive, and objectively offensive, and that so undermines and distracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” (Preston, 876 F.Supp.2d at 241 [quoting Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650-651 [1999]). In short, a school district may be liable for ADA violations where its “response to known discrimination ‘is clearly unreasonable in light of the known circumstances.’” (Preston, 876 F.Supp.2d at 242 [quoting Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 [2d Cir.1999]). A “disability” is defined as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment….” (42 U.S.C. §12102[1]; see 29 U.S.C. §705[20][B]). “Major life activities” are defined to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” (42 U.S.C. §12102[2]). Here, plaintiff states that the deceased suffered from scoliosis with attendant physical limitations and manifestation and underwent a surgery. After the surgery, decedent had to wear a back brace, had to take medications, and was given an early pass to the school to avoid being hit by other students. It would be reasonable to infer from these allegations that this condition resulted in some impairment to his major life activities. Significantly, the defendant does not dispute that deceased was disabled within the meaning of the ADA. Thus, as a threshold matter, Angelo was a qualified individual with a disability within the meaning of the Rehabilitation Act and the ADA. (See Spring v. Allegany-Limestone Cent. School Dist., 655 Fed. Appx. 25 [2d Cir. 2016] [Summary Order]). The amended complaint amplified by the notice of claim alleges that Angelo was bullied from elementary school through high school on account of his physical condition, and although his mother notified school officials of the incidents and had several conferences with them in regard to the bullying, no effective measures had been taken to prevent it. As a result, the deceased was reluctant to go to school and lost the opportunity to enjoy the educational resources he otherwise should have had access to and caused his academic development to suffer significantly. In one alleged instance, when the deceased had been bothered in English class by the same group of boys who had pulled his pants down in middle school, a guidance counselor promised to look into the matter, but removed the deceased from the class instead of the boys engaged in the bullying. Taking the plaintiff’s allegations as true, she has stated a claim under the ADA and the Rehabilitation Act, and the motion will be granted with regard to those claims. Next, in order to form the basis for a Title IX claim against an educational institution, student-on-student harassment must be based upon gender. (Preston, 876 F.Supp.2d at 243; Education Amendments of 1972 §901, 20 U.S.C.A. §1681[a]). Again, a school district may be liable for deliberate indifference to such gender based harassment. Thus, in order to constitute deliberate indifference to sexual or gender-based harassment of a student under Title IX, a school’s actions must be clearly unreasonable in light of the known circumstances. Title IX does not require schools to remedy peer harassment or to ensure that students conform their conduct to certain rules. It is not necessary, however, to show physical exclusion to demonstrate that students have been deprived by the actions of another student or students on the basis of sex. (Nungesser v. Columbia Univ., 244 F. Supp. 3d 345 [S.D.N.Y. 2017], appeal withdrawn, No. 17-900, 2017 WL 4404575 [2d Cir. July 10, 2017]). In this circumstance, the plaintiff contends that the school district was indifferent to sexual assault and/or harassment, citing in particular an occasion where other students pulled down the decedent’s pants. However, neither the complaint nor the notice of claim reasonably suggest that Angelo was targeted for harassment because of his male gender. Accordingly, the motion to amend is denied with respect to plaintiff’s Title IX claim. (See Preston, 876 F. Supp.2d at 243-244). When it comes to the §1983 claim, the Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall… deprive any person of life, liberty, or property, without due process of law.” (See DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 194, 109 S.Ct. 998, 103 L.Ed.2d 249 [1989]). However, this clause “is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security.” (Id.) Thus, as recognized by the Supreme Court in DeShaney, “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” (Id.). There are two recognized exceptions to the DeShaney rule: First, the state or its agents may owe a constitutional obligation to the victim of private violence if the state had a ‘special relationship’ with the victim. Second, the state may owe such an obligation if its agents “in some way had assisted in creating or increasing the danger to the victim.” (Matican v. City of N.Y., 524 F.3d 151, 155 [2d Cir.2008] [internal citations omitted], cert. denied, 555 U.S. 1047, 129 S.Ct. 636, 172 L.Ed.2d 611 [2008]; P.W. v. Fairport Central Sch. Dist., 927 F.Supp.2d 76, 81 [W.D.N.Y.2013]). Under the “state-created danger” exception to DeShaney, “a plaintiff seeking to state such a claim must show more than the State’s general knowledge of a danger; he must show that the State assisted in ‘creating or increasing the danger that the victim faced at the hands of a third party.’ ” (Campbell v. Brentwood Union Free Sch. Dist., 904 F.Supp.2d 275, 280 [E.D.N.Y.2012] [quoting Matican, 524 F.3d at 157]). Passive conduct, such as the failure to punish, does not fall within this exception; instead, there must be an affirmative act on the part of a defendant. (Pena v. DePrisco, 432 F.3d 98, 109-10 [2d Cir.2005], comparing Hemphill v. Schott, 141 F.3d 412 [2d Cir.1998] [police officers' actions in allowing store manager to join in pursuit of suspect and returning the manager's gun he then used to shoot plaintiff created or increased the danger] with Pitchell v. Callan, 13 F.3d 545 [2d Cir.1994] [no constitutional violation when off-duty police officer failed to stop another off-duty police officer from shooting a houseguest]. Further, when the conduct alleged is the failure to adequately discipline and supervise students, such allegations are generally insufficient to plausibly state a substantive due process claim based on a state-created danger. (See P.W., 927 F.Supp.2d at 83 [allegations that named defendant inadequately responded and disciplined student bullies insufficient to state a claim]). Rather, “[a] violation of substantive due process rights required that the official conduct in question be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” (Spring, 655 Fed. Appx. at 28 [quotations omitted]; see also Smith v. Guilford Board of Educ., 226 Fed. Appx. 58 [2d Cir 2007] [Summary Order]). Here, although plaintiff alleges that HUFSD did not take measures sufficiently effective against the bullying experienced by the decedent, plaintiff does not allege that HUFSD assisted in creating or increasing the danger to the decedent or wilfully disregarded “obvious risks.” (Spring, 655 Fed. Appx. at 28 [quotations omitted]; Smith, 226 Fed. Appx. 58 ). Thus, plaintiff’s allegations are insufficient to plausibly state a due process claim under the Fourteenth Amendment. To maintain an equal protection claim, a plaintiff must show adverse treatment when 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. (G.D.S. ex rel. Slade v. Northport-East Northport Union Free Sch. Dist., 915 F.Supp.2d 268, 277 [E.D.N.Y.2012]). To succeed on an equal protection claim based on allegations that teachers, administrators, and boards of education were deliberately indifferent to discriminatory harassment of a student at school by other children, a student must show that he was afforded a lower level of protection as opposed to other students, and that this lower level of protection was the result of his protected status. (Preston, 876 F.Supp.2d at 244[ quoting T.K. v. NYC Dept. Of Educ., 779 F.Supp.2d 289, 316 [E.D.N.Y. 2011]]; see also Spring, 655 Fed. Appx. at 28-29; Smith, 226 Fed. Appx. at 63-64). Absent allegations describing dissimilar treatment of non-disabled students, the plaintiff fails to state an equal protection claim under the Fourteenth Amendment. In Spring v. Allegany-Limestone Cent. Sch. Dist., 138 F. Supp. 3d 282, 292 [W.D.N.Y. 2015], aff’d in part, vacated in part, 655 F. App’x 25, the court found that allegations that teachers knew of and ignored harassment of the student and removed the student from school’s baseball team as a result of “horseplay,” despite having tolerated the same or similar conduct by others without disability, and then allowed him to be ridiculed by teammates without consequence, were insufficient to support claim of violation of Equal Protection Clause. The court indicated that these allegations failed to describe any specific similar incident involving non-disabled students or any other facts that would provide context for considering reasonableness of school officials’ alleged actions. (Spring, 138 F. Supp. 3d at 292). In this case, the plaintiff has not alleged facts to support a finding that the District maintained a policy or practice of treating harassment of disabled students in a manner inconsistent with its treatment of such complaints by other students. Nor has the plaintiff alleged similar incidents involving non-disabled students. Accordingly, the allegations are insufficient to demonstrate that she has a cause of action under the Equal Protection Clause of the Fourteenth Amendment against the District. Lastly, the court rejects the defendant’s contention that amendment should not be allowed because the plaintiff failed to file a notice of claim concerning its statutory claims, now relegated to the ADA and Rehabilitation Act claims. As an initial matter, it has been held that the notice of claim statute does not apply to ADA or rehabilitation Act claims. (Finley v. Giacobbe, 827 F. Supp. 215, 219 [S.D.N.Y. 1993] ["[T]here is…no reason for us to suppose Congress intended that state notice-of-claim provisions should apply to ADA or Rehabilitation Act claims.”]; see also Tout v. Erie Comunity College, 923 F. Supp. 1, 15 [W.D.N.Y. 1995]). Further, the notice of claim as filed indicated both that the plaintiff was severely bullied “due to his appearance and mannerisms” stemming from his physical condition and that HUFSD allowed the bulling to occur to the extent that “it unreasonably and substantially interfered with the decedent’s educational performance and opportunities.” Although the notice itself cited DASA, the facts alleged put the defendant on notice of plaintiff’s potential ADA claim. For the foregoing reasons, it is hereby ORDERED, that the defendant’s motion to dismiss the second and third causes of action is granted; and it is further ORDERED, that the plaintiff’s motion to amend the complaint is granted in part to the extent that the plaintiff may amend to add a claim under the Americans with Disabilities Act and the Rehabilitation Act, and is otherwise denied. The amended complaint shall be served within seven days of service of a copy of this order with notice of entry; and it is further ORDERED, that counsel for the parties shall appear at a preliminary conference at the supreme courthouse, 100 Supreme Court Drive, Mineola, N.Y., lower level, on August 27, 2019, at 9:30 a.m. No adjournments of this conference will be permitted absent the permission of or order of this court. All parties are forewarned that failure to attend the conference may result in judgment by default, the dismissal of pleadings (see 22 NYCRR 202.27) or monetary sanctions (22 NYCRR 130-2.1 et seq.). This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: July 16, 2019 Mineola, New York
