In an action to recover damages for personal injuries, the defendants move for summary judgment dismissing the complaint, pursuant to CPLR 3212: Papers Considered NYSCEF DOC NO. 18-62; 64-78; 83-84 1. Notice of Motion/Memorandum of law/Statement of material facts/Affirmation of Daniel S. Rubin, Esq./Exhibits A-HH/Affidavit of Tracy Taylor/Exhibits A-E/Affidavit of service 2. Memorandum of law in opposition/Statement of material facts in opposition/Affirmation of Peter D. Hoffman, Esq./Exhibits 1-11/ Affirmation of Peter D. Hoffman, Esq. of service 3. Reply Memorandum of Law/Affidavit of service DECISION & ORDER Factual and Procedural Background Plaintiffs commenced this action with the filing of the summons and complaint on May 26, 2020. In the amended complaint, plaintiffs assert nine causes of action: intentional infliction of emotional distress, negligent supervision, assault, battery, negligent infliction of emotional distress, discrimination based on race in violation of Civil Rights Act, Title VI, denial of equal protection of the Fourteenth Amendment to the U.S. Constitution on the basis of race, discrimination based on race under New York Civil Rights Law §§40-c and 40-d, and retaliation. Defendants joined issue with the filing of their answer on September 3, 2020. Minor plaintiffs DP and MaP are children of plaintiffs EF and MP, and were students in the defendant Blind Brook-Rye Union Free School District (“District”), specifically at Bruno M. Ponterio Ridge Street School (“Elementary School”) at all relevant times herein. All plaintiffs are African American. Defendant Jonathan Ross is the Superintendent of the District and is a defendant solely because of his position. Defendant Chip Fiero (“Fiero”) was employed at the District as a monitor. All claims brought are on behalf of the minor plaintiffs. Tracy Taylor (“Taylor”) was the Principal, and Lori Cutrone (“Cutrone”) was the Associate Principal and the Dignity for All Students Act (“DASA”) Coordinator, of the Elementary School. Plaintiffs’ claims arise from eight incidents of alleged discrimination that occurred between November 2018 and January 2020. The following incidents are the basis of plaintiffs’ claims of a racially hostile education environment. (1) On or about February 28, 2017, a student, OC, called DP “monkey face” (“Monkey Face incident”). The day the incident occurred, the District addressed the incident with OC and DP OC and DP were separated and instructed on appropriate interactions with one another and what the District expected from their behavior moving forward. Their parents were called. The District’s response to the Monkey Face incident constituted a Level II discipline for OC under the District’s Code of Conduct. (2) On or about September 25, 2017, at an after-school program run by the Town of Rye Brook’s Recreation Department and conducted on school property, a person, R., who was not a student at the Elementary School, threatened to slash DP’s throat. (3) During DP’s third grade school year in 2018, DP was called the N-word by another child, BS. BS had also called DP the N-word at school “before or in third grade”. When it occurred in school, DP told his teacher, BS got in trouble, and BS never called DP the N-word at school again. DP did not tell anyone else at school about the incident and the District has no record of this incident taking place. (4) After the school year ended, in the summer of 2018, BS called DP the N-word while at a summer day camp with no affiliation with the District. (5) On or about November 13, 2018, a student, MH, called DP “black boy” in the cafeteria at school. As a result, MH was subjected to “Level II” discipline under the District’s Code of Conduct. The classroom teacher and aides were instructed to keep the boys apart from one another during lunch, recess and in the classroom and to notify the Principal and Assistant Principal if any further issues arose. (6) On March 28, 2019, DP and Fiero had an interaction during recess wherein DP alleges Fiero struck him on the neck either on or immediately after being on the playground (“Playground incident”). The District immediately opened an investigation into the incident which included interviews with DP, four other students, Fiero and three adults present at recess. The investigation also included a review of surveillance footage of the playground during recess on March 28, 2019. Prior to March 28, 2019, the District never received any complaint about Fiero physically touching a student and the District had never disciplined Fiero for physically touching a student. Fiero has never made any comments about DP’s race or said anything discriminatory to him, including during the Playground incident. Fiero received a “Letter of Counsel” from Principal Taylor regarding the Playground incident, which is the only time Fiero was ever disciplined by the District for his interactions with a student. (7) On or about April 30, 2019, a student, MH, told DP “blacks and Mexicans are stupid and Trump is building a wall to keep them out” (“Trump incident”). MH is the same student who called DP “black boy” above. DP reported MH’s comments to his teacher who informed the principal. MH was brought to the assistant principal’s office and his parents were contacted. Sending a student to the assistant principal’s office is an “Optional Response” under Level II of the Code of Conduct and notifying a student’s parents (orally or in writing) is an “Optional Response” under Level I of the Code of Conduct which is incorporated by reference as an “Optional Response” under Level II. On May 2, 2019, the District held a meeting with administrators and DP’s classroom staff to discuss DP and MH, where they reiterated that the boys were to be kept separated. On May 3, 2019, the District placed an additional aide in DP’s classroom to monitor MH who remained in the classroom for the remainder of the year. (8) On or about January 24, 2020, a student, VA, called MaP tree stump, brown mud and number two on a single occasion. MaP immediately reported the incident to an aide, who reported it to the teacher, who reported it to Taylor, who investigated the incident with Cutrone. The incident was addressed with VA and her parents. Notifying a student’s parents (orally or in writing) is an “Optional Response” under Level I of the code of Conduct which is incorporated by reference as an “Optional Response” under Level II. Taylor also instituted a rule that kept VA and MaP away from one another. Subsequent to the Trump incident, on or about May 5, 2019, plaintiff EF made a DASA complaint that DP had been bullied based on his race, and the District instituted a DASA investigation. DASA Coordinator, Cutrone, conducted an investigation into the Trump incident and other incidents identified by EF, including the Playground incident, monkey face incident, Throat incident and the N-word incident. On May 31, 2019, the District issued a DASA report summarizing its finding and conclusions. As a result of the above incidents, DP missed one day of school. DP’s grades did not suffer and he graduated from the Elementary School. As a result of the January 24, 2020 incident, MaP has not missed any school. MaP’s grades did not suffer as a result of the incident. The minor plaintiffs are currently doing well in school. The Parties’ Arguments In support of their motion, defendants argue that the plaintiffs’ assault and battery claims fail as the video evidence establishes that the assault/battery did not occur, and even if it did, it was de minimus limiting plaintiffs’ recovery to nominal damages. Defendants argue that plaintiffs’ negligent supervision claims fail with respect to student-on-student verbal harassment because the incidents occurred off school district property and outside of school hours, or were spontaneous one-off occurrences the District could not have predicted or prevented. Defendants also argue that the plaintiffs’ civil rights claims fail because of lack of evidence of racial discrimination by the District or its employees. Defendants claim that plaintiffs’ intentional infliction of emotional distress claim fails because the alleged conduct does not rise to the level of extreme and outrageous conduct, and plaintiffs’ negligent infliction of emotional distress claim should be dismissed as duplicative of their other claims and because the alleged conduct did not put plaintiffs in actual or perceived danger. Defendants submit the Affidavit of Tracy Taylor who swears that she is familiar with plaintiffs and the events at issue. Taylor swears that at all times at issue herein, the District maintained a Code of Conduct which provides for four levels of infractions with corresponding optional disciplinary responses, and that it is specifically designed to permit the response to any infraction to escalate with the severity and frequency of any given infraction. Taylor swears that discrimination is first identified under Level II and, depending on its severity and frequency, may also rise to a Level III or IV Infraction, and may result in optional responses ranging from “verbal reprimand” to suspension and/or the involvement of outside authorities. Taylor swears that only the principal and assistant principal have authority to assign discipline under the Code of Conduct; teachers do not have the authority to assign discipline to students. Taylor swears to the incidents alleged. With regard to the Monkey Face incident, she swears that she was informed of it on February 28, 2017 and addressed the incident with DP and the other student, separated them, instructed them on appropriate interactions with one another and expectations about their behavior moving forward, and called their parents. Tracy swears that this response constituted Level II discipline under the Code of Conduct. With regard to the N-word incident, Taylor swears that the District was never made aware of the incident at school and that there is no record of the incident ever occurring. With regard to the N-word incident at summer camp, Taylor swears that the summer camp at Crawford Park is run by the Village of Rye Brook, and the District does not have any involvement in the camp’s operations, programming and/or the hiring or supervision of its employees and/or participants. Taylor swears that the Black Boy incident occurred on or about November 13, 2018, and that DP and MH were separated, they were instructed on appropriate interactions with one another and expectations about their behavior moving forward, and their parents were called. Taylor swears that this constituted Level II discipline under the Code of Conduct with respect to MH Taylor swears that in addition, the classroom teacher and aides were instructed to keep the boys apart from one another during lunch, recess and in the classroom and notify her or the assistant principal if any additional issues arose. With regard to the Throat incident at an after-school program, Taylor swears that the District does not run the after-school program, does not have any role in its programming or the hiring or supervision of its employees or participants. Taylor swears that on March 29, 2019, immediately after the Playground incident was reported to the administration, the District opened an investigation into the March 28, 2019 Playground incident. Taylor swears that she conducted interviews with DP, four other children, Fiero, and three adults present at recess. Taylor swears she also viewed surveillance footage of the playground during recess on March 28, 2019, and that the video does not show Fiero touching DP at any time. Taylor swears that she was involved in hiring Fiero in 2014 and that nothing in his interview or conversations with his references led her to suspect that Fiero would have inappropriate physical contact with a student. Taylor swears that between the day he was hired and March 29, 2019, the District never received any complaints about Fiero physically touching anyone, let alone a student, and had never disciplined him for any physical contact with a student. Taylor swears that following the investigation, on April 30, 2019, she sent Fiero a “Letter of Counsel” addressing the March 28, 2019 incident, and that this was the only time Fiero has been disciplined during his tenure at the Elementary School for inappropriate behavior toward a student. Taylor swears that after the Playground incident, plaintiffs have never complained about Fiero in any other context. Taylor also swears that the Trump incident occurred on or about April 30, 2019, and was reported to her by DP’s teacher after DP reported it to her. Taylor swears that on April 30, 2019, the classroom teacher called DP’s parents and MH’s parents to inform them of what occurred. Taylor swears that MH was brought to the principal’s office and his parents were contacted. Pursuant to the Code of Conduct, sending a student to the assistant principal’s office is an “Optional Response” under Level II of the Code of Conduct. Taylor swears that she and Cutrone had additional communications with MH’s parents about the incident that evening. Taylor swears that she and Cutrone also spoke to the boys separately either on April 30, 2019 or May 1, 2019 and reiterated expectations regarding their behavior at school. Taylor swears that on May 1, 2019, she and Cutrone spoke with DP’s parents further about the incident. Taylor swears that notifying a student’s parents (orally or in writing) is considered an “Optional Response” under Level I of the code of Conduct which is incorporated by reference as an “Optional Response under Level II. Taylor swears that on May 2, 2019, she held a meeting with the classroom teacher and aides and it was reiterated that the boys were to be kept apart and not have any interaction, and informed them that an additional adult would be placed in the classroom to ensure the boys were separated during the day. Taylor swears that an additional aide was placed in the classroom on May 3, 2019 and remained in place for the remainder of the school year. Taylor swears that the MaP incident occurred on or about January 24, 2020; that immediately after the incident, MaP reported the incident to an aide, the aide reported it to the teacher, and the teacher reported it to her. Taylor swears that she and Cutrone investigated the incident the same day. Taylor swears that the incident was addressed with VA’s mother and the incident was discussed with VA and she was reminded of her expectations about her conduct in the future and told to stay away from MaP Taylor swears that notifying a student’s parents (orally or in writing) is an “Optional Response” under Level I of the Code of Conduct which is incorporated by reference as an “Optional Response” under Level II. Taylor swears that on or about May 5, 2019, plaintiff EF made a Dignity for All Students Act (DASA) complaint that DP had been bullied based on his race, and the District instituted a DASA investigation. Cutrone, the DASA Coordinator, conducted an investigation into the Trump Incident, the Playground incident, the Monkey Face incident, the Throat incident, and the N-word incident. On May 31, 2019, the District issued a DASA report summarizing its findings and conclusions as described herein. In opposition, plaintiffs argue that the video evidence of the assault and battery is not conclusive as to whether Fiero struck DP or not and it was not de minimus. Plaintiffs argue that the negligent supervision claims do not fail because DP was struck by Fiero and because the discipline that was administered was not severe enough. Additionally, plaintiffs argue that the civil rights claims do not fail because the District’s response was always to use the lowest level of discipline that engendered continued abuse, furthermore the conduct of the students was pervasive and did deprive the students of educational opportunities. Also, plaintiffs assert that the state civil rights claims do not fail because the plaintiffs did notify the attorney general, and because of the tepid response of the district this conduct assured their continuation. Plaintiffs argue that the intentional infliction of emotional distress claim does not fail because the totality of the conduct in this case rises to the level of extreme and outrageous conduct. Finally, plaintiffs argue that the negligent infliction of emotional distress claim is valid as it placed DP in actual and perceived danger. Discussion The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see Zuckerman v. City of New York, 49 NY2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v. New York, 49 NY2d at 562). Assault and Battery Claims In order to sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact (Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d 826, 829 [2d Dept 2015]). The elements of a cause of action to recover damages for battery are intentional bodily contact that is offensive in nature (id.). Defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging assault and battery insofar as asserted against them. Defendants’ argument that the video evidence “makes clear” that the incident did not occur, is incorrect. The video is not conclusive one way or the other, which is corroborated by the findings of principal Taylor in her April 30, 2019 letter to Fiero. Further, DP testified that he remembered seeing the flash of his hand before Fiero hit him. Therefore, a question of fact exists regarding the assault and battery claims. Negligent Supervision Claims Regarding Infant Plaintiffs Under the doctrine that a school district acts in loco parentis with respect to its minor students, a school district owes a special duty to the students themselves (Wienclaw v. East Islip Union Free Sch. Dist., 192 A.D.3d 945, 946 [2d Dept 2021]). Thus, schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision (id.). Schools are not, however, insurers of students’ safety and cannot reasonably be expected to continuously supervise and control all movements and activities of students (id.). The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information (id). Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable (Meyer v. Magalios, 170 A.D.3d 1163, 1164-1165 [2d Dept 2019]). Actual or constructive notice of prior similar conduct is generally required, and injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act (id. at 1165; Maldari v. Mount Pleasant Cent. Sch. Dist., 131 A.D.3d 1019, 1020 [2d Dept 2015]). A necessary element of a cause of action alleging negligent supervision is that the district knew or should have known of the individual’s propensity for violence (Wienclaw v. East Islip Union Free Sch. Dist., 192 A.D.3d 945, 946 [2d Dept 2021]; Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d 826, 828 [2d Dept 2015]). Defendants have established, prima facie, that each of the different students involved in the monkey face incident, first N-word incident, black boy incident, and MaP incident had no prior discriminatory interaction with DP or MaP. Accordingly, these were unforeseeable acts and the District had no actual or constructive notice of similar prior conduct by each of the individual students involved in the incidents. In opposition, plaintiffs have failed to raise an issue of fact. Plaintiffs’ argument that by virtue of the sheer number of incidents, the defendants were on notice of a propensity for their students to exhibit racist conduct is not supported by the evidence. Similarly, plaintiffs’ argument that the District permitted the incidents to occur due to its decision to impose minimal discipline also fails, as detailed below. As for the Trump incident, although it involved the same student as the black boy incident, it occurred approximately six months earlier, and was too attenuated in time and insufficient to place the defendants on notice (see Morman v. Ossining Union Free Sch. Dist., 297 AD2d 788, 789 [2d Dept 2002]) (finding that extensive non-violent behavior and one incident of fighting insufficient to put the school district on notice of physical assault upon another student). A school’s duty to its students is co-extensive with the school’s physical custody and control over them, and when a student is injured off school premises the school district cannot be held liable for the breach of a duty that generally extends only to the boundaries of the school property (Chalen v. Glen Cove School Dist., 29 A.D.3d 508, 509 [2d Dept 2006]). As such, the defendants established they did not have a duty to the infant for the second N-word incident that occurred at summer camp off school district property. While the throat incident did occur on school property, it occurred during an after-school program which was indisputably run by the Town of Rye-Brook’s Recreation Department, a third party. Further, it is undisputed that the child who made the statement to DP at the after-school program was not a student at the Elementary School. As such, the defendants established that they did not have a duty to DP at the time of this incident. Plaintiff’s argument that Fiero was working as a school monitor at the time of the event misses the mark as he testified that the children are with Rye Brook Recreation in different parts of the building during the after-school program and during that time he worked as a monitor at the front desk to facilitate parents picking up their children from the after-school program. Further, the evidence establishes that the District does not run the after-school program, does not have any role in its programming or the hiring or supervision of its employees or participants. Regarding Fiero A necessary element of causes of action for negligent supervision and training is that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury (Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d 826, 828 [2d Dept 2015]). Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training (id. at 829). Here, defendants satisfied their prima facie showing that they had no notice of conduct by Fiero demonstrating a propensity for the type of conduct alleged. Further, it is uncontested that Fiero was acting within the scope of his employment during the alleged incident. As such, the negligent supervision claim against defendants must be dismissed Discrimination Claim under Civil Rights Act, Title VI Title VI of the Civil Rights Act of 1964 (“Title VI”) prohibits programs that receive federal funding from discriminating on the basis of race (42 U.S.C. §2000d). Where the alleged discrimination is predicated upon student-on-student harassment, Title VI provides for liability only where the educational institution is deliberately indifferent to such an extent that the indifference can be seen as racially motivated (DT v. Somers Cent. Sch. Dist., 588 F. Supp. 2d 485, 493 [SD NY 2008]). To prevail on a hostile educational environment claim under Title VI, the plaintiff must show that the school 1) had actual knowledge of, and 2) was deliberately indifferent to 3) harassment that was so severe, pervasive and objectively offensive that it 4) deprived the victim of access to the educational benefits or opportunities provided by the school (id.). Deliberate indifference is found both when the defendant’s response to known discrimination is clearly unreasonable in light of the known circumstances and when remedial action only follows after a lengthy and unjustifiable delay (DT v. Somers Cent. Sch. Dist., 588 F. Supp. 2d at 495). A school district’s actions are only deliberately indifferent if they were clearly unreasonable in light of the known circumstances (Zeno v. Pine Plains Cent. Sch. Dist., 702 F3d 655, 666 [2d Cir 2012]. Thus, when weighing the adequacy of a response, a court must accord sufficient deference to the decisions of school disciplinarians (id.; see also Davis v. Monroe County Board of Education, 526 U.S. 629, 648 [1999] (courts should refrain from second-guessing the disciplinary decisions made by school administrators. To that end, victims do not have a right to specific remedial measures (Zeno v. Pine Plains Cent. Sch. Dist., 702 F3d at 666). Defendants have established, prima facie, that they were not deliberately indifferent to the incident with Fiero as well as the monkey face, black boy, and Trump incidents1. After each incident, the District took action immediately, and therefore there was no lengthy and unjustifiable delay. Plaintiffs’ argument that the District’s discipline was the lowest level possible and as a result permitted the discrimination to continue is not enough to raise an issue of fact. The incident with Fiero was immediately investigated by the school and a letter issued approximately one month later. The other incidents involved elementary age school children, and the District took action it saw fit. The Trump incident was the only incident in which the same child made a comment to DP, and after that incident, additional steps were taken by the District to ensure additional supervision and the children were kept away from each other. With regard to the N-word incident that occurred on school grounds, defendants have established they had no knowledge of the N-word incident in the classroom. To state a claim arising under Title VI, the plaintiff must allege that the defendant had notice of the complained-of discrimination (D.C. v. Copiague Union Free Sch. Dist., 2017 U.S. Dist. LEXIS 113253, *30 [ED NY 2017]; see also Evans v. Columbia Univ. in the City of New York, 2015 U.S. Dist. LEXIS 48768, *6 [SD NY 2015]; see also T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332, 356 (holding that, to prevail on a claim arising under Title VI, “a school district must actually know of the harassment; constructive knowledge is insufficient”). Further, a school official who at a minimum has authority to address the alleged harassment and to institute corrective measures on the school district’s behalf must have actual knowledge of the behavior in question (D.C. v. Copiague Union Free Sch. Dist., at *30 quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 [1998]). Here, the evidence establishes that the District was never made aware of the incident at school and there is no record of the incident ever occurring. Equal Protection Claim pursuant to the Fourteen Amendment Section 1983 imposes liability for conduct which subjects, or causes the complainant to be deprived of a right secured by the Constitution and laws (Oliveras v. Saranac Lake Cent. Sch. Dist., 2014 U.S. Dist. LEXIS 44603, *55-56 [ND NY 2014]; 42 U.S.C. §1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained (id.). As such, for a plaintiff to recover in a section 1983 action, he must establish a causal connection between the acts or omissions of each defendant and any injury or damages he suffered as a result of those acts or omissions (id.). Deliberate Indifference A plaintiff can prevail on an equal protection claim against school officials based on deliberate indifference to invidious student-on-student harassment (T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332, 367 [SD NY 2014]). A section 1983 equal protection claim asserting racial harassment of a student by another student requires proof (1) that the child in question was in fact harassed by other students based on his race; (2) that such race-based harassment was actually known to the defendant school official; and (3) that the defendant’s response to such harassment was so clearly unreasonable in light of the known circumstances as to give rise to a reasonable inference that the defendant himself intended for the harassment to occur (Oliveras v. Saranac Lake Cent. Sch. Dist., at 56; T.E. v. Pine Bush Cent. Sch. Dist., at 368). Here, defendants have established prima facie entitlement to judgment as a matter of law. For the reasons set forth above, the undisputed evidence demonstrates that the District responded reasonably to all of the incidents of which it was aware and there is no evidence that the response was so unreasonable as to give rise to an inference that the District intended for the harassment to occur (Oliveras v. Saranac Lake Cent. Sch. Dist.). In opposition, plaintiffs have failed to raise an issue of fact. Plaintiffs have failed to set forth any facts establishing that the District’s actions were the result of an underlying racially discriminatory intent or purpose (id.). Courts must give substantial deference to the decisions of school administrators and should refrain from second-guessing the disciplinary decisions made by school administrators (id.; see also Davis v. Monroe County Board of Education). Lack of Training/Supervision As to plaintiffs’ lack of training/supervision theory, courts have been skeptical of municipal liability claims predicated on an alleged failure to train, with the Supreme Court admonishing lower courts that a municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train (Davis v. City of New York, 2018 U.S. Dist. LEXIS 231116, *11 [SD NY 2018]). Even so, a municipality may nonetheless be deliberately indifferent, and thus liable, where city policy makers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights (id.). Further, a pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train (id.). Deliberate indifference is a stringent standard of fault, however, requiring proof that a municipal actor disregarded a known or obvious consequence of his action (id. at *12). A school district may be held liable for inadequate training, supervision, or hiring where the failure to train, hire, or supervise amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact (Bliss v. Putnam Valley Cent. Sch. Dist., 2011 U.S. Dist. LEXIS 35485, *23 [SD NY 2011]. The Second Circuit has identified three requirements to determine whether a failure to train or supervise constitutes deliberate indifference (Jenkins v. City of New York, 478 F.3d 76, 94 [2d Cir. 2007]). The plaintiff must show (1) that a policymaker knows “to a moral certainty” that her employees will confront a given situation; (2) that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation; and (3) that the wrong choice by the city employee will frequently cause the deprivation of a citizen’s constitutional rights (id.). A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train (Connick v. Thompson, 131 S. Ct. 1350, 1360 [2011]). At the summary judgment stage, plaintiffs must identify a specific deficiency in the city’s training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation (Jenkins v. City of New York, 478 F.3d at 94; T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d at 376-377). The incidents are student-on-student, and, with the exception of the two incidents with the same student, the discipline implemented by the District was effective as it is undisputed that the students only had one incident and never again. After the Trump incident, which was DP’s second with MH, the District implemented additional measures to ensure it would not happen again, and it did not. Further, plaintiffs failed to identify a specific deficiency in the District’s training program nor did they establish that the deficiency is closely related to the alleged injury (see Jenkins v. City of New York). As such, in opposition, plaintiffs have failed to raise an issue of fact to show that training and/or additional supervision would have prevented the incidents. Discrimination Claim under New York Civil Rights Law New York Civil Rights Law §40-c provides that “[n]o person shall, because of…national origin…, be subjected to any discrimination in his or her civil rights, or to any harassment…in the exercise thereof, by any other person or…by the state or any agency or subdivision of the state (NY CLS Civ R §40-c). New York Civil Rights Law §40-d directs a penalty for “[a]ny person who shall violate any of the provisions of the foregoing section, …or who shall aid or incite the violation” of that section (NY CLS Civ R §40-d). Defendants have established their prima facie entitlement to judgment as a matter of law, and in opposition, plaintiffs have failed to raise a triable issue of fact. As stated above, plaintiffs’ argument that by the District imposing the lowest level of discipline on elementary students, it incited further racial animus is unavailing. For all but one student incident, it was the first incident, and for one there were two incidents approximately six months apart. Accordingly, it is not necessary to address the issue of service on the New York State Attorney General. Negligent Infliction of Emotional Distress A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him which unreasonably endangered his physical safety, or caused him to fear for his own safety (see Taggart v. Costabile, 131 AD3d 243, 253 [2d Dept 2015]; Santana v. Leith, 117 AD3d 711, 712 [2d Dept 2014]). Defendants have demonstrated prima facie entitlement to judgment as a matter of law on the claim for negligent infliction of emotional distress for all the student-on-student incidents, since, as stated above, there was no breach of duty by the District. However, with regard to the Playground incident, plaintiffs have raised an issue of fact with DP’s testimony that he was struck by Fiero inside the hallway after recess and he saw a flash of hand as he was hitting him. Therefore, it is a question of fact as to whether this caused DP to fear for his own safety. Intentional Infliction of Emotional Distress Under New York law, a cause of action alleging intentional infliction of emotional distress has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress (Taggart v. Costabile, 131 A.D.3d 243, 249 [2d Dept 2015]). The element of outrageous conduct has been described as “rigorous, and difficult to satisfy” (id.; see Howell v. New York Post Co., 81 NY2d 115, 122 [1993]). Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community (id.). The Court of Appeals has recognized that, of the four essential elements of the tort, the outrageousness element is the one most susceptible to determination as a matter of law (id. citing Howell v. New York Post Co., 81 NY2d at 121). Defendant has demonstrated that the cause of action alleging intentional infliction of emotional distress should be dismissed as duplicative of the causes of action alleging assault and battery against Fiero (Leonard v. Reinhardt, 10 AD3d 510, 510 [2d Dept 2005]). In opposition, plaintiff failed to raise an issue of fact and in fact cites case law which supports the public policy which bars claims sounding in intentional infliction of emotional distress against a governmental entity (Boyle v. Caledonia-Mumford Cent. Sch., 140 AD3d 1619 [4th Dept 2016]). As such, plaintiffs’ claim for intentional infliction of emotion distress is dismissed. Retaliation Claim Defendant has met its burden to show prima facie entitlement as a matter of law to judgment with regard to plaintiffs’ retaliation claims. In opposition, plaintiffs expressly state that they are not making an argument on the issue of retaliation. All other arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this court and found to be without merit, notwithstanding the specific absence of reference thereto. Accordingly, it is hereby ORDERED that defendants’ motion for summary judgment is GRANTED as to plaintiffs’ claims for intentional infliction of emotional distress, negligent supervision, discrimination based on race in violation of Civil Rights Act, Title VI, denial of equal protection of the Fourteenth Amendment to the U.S. Constitution on the basis of race, discrimination based on race under New York Civil Rights Law §§40-c and 40-d, retaliation, and negligent infliction of emotional distress as to the seven incidents with other students and these causes of action are dismissed; and it is further ORDERED that defendants’ motion for summary judgment is DENIED as to plaintiffs’ claims for assault, battery and negligent infliction of emotional distress as to the Playground incident only, pursuant to the above. The parties are directed to appear for a settlement conference on July 12, 2022 at 2:00 p.m., subject to confirmation by the virtual conference link emailed by this Court. Dated: May 13, 2022
