Recitation as per CPLR §§2219(a) and/or 3212(b) of papers considered on review of this motion: NYSCEF Doc #s 7-12; 17 by Defendants NYSCEF Doc #s 14-16; 20 by Plaintiff DECISION/ORDER Upon the foregoing cited papers and oral argument on March 22, 2023, pursuant to CPLR §3212, the Court grants Defendants City of New York (“City”), New York City Department of Education (“DOE”), and Tracey Quarles’ Motion to Dismiss. BACKGROUND On August 20, 2022, Plaintiff commenced the instant action alleging the following salient facts. In late 2020, Plaintiff was offered a full-time position as a special education teacher at PS 150 for the 2020 to 2021 school year. Plaintiff was promised various benefits as part of her position, including being assigned a mentor, being placed on tenure track, healthcare insurance, and retirement opportunities. After accepting the position, Plaintiff was not provided with the promised benefits and spoke to Defendant Tracey Quarles, the Principal of PS 150, and a United Federation of Teacher (“UFT”) representative. Despite these conversations, Plaintiff never received the promised benefits. Then, in January 2021, Plaintiff discovered that her title had been changed from a full-time special education teacher to long-term/regular substitute teacher. Plaintiff was advised in a letter dated May 10, 2021, from Defendant Quarles that she was not being rehired for the following school term and that her employment would conclude on May 24, 2021. After Plaintiff’s position at PS 150 concluded, she applied for summer and regular school year positions and was subsequently offered multiple teaching positions. However, after accepting these positions she was informed she would be terminated from them due to a code listed in her personnel file that indicated she had been previously terminated “for cause.” Plaintiff was then informed that when she was not re-hired at PS 150, Defendant Quarles, the Human Resources Department of the DOE, the Office of Personnel Investigation (“OPI”) of the DOE, or other agent of the DOE improperly inserted an adverse code in Plaintiff’s Employee Information System (“EIS”). Plaintiff was further informed that the code was placed in her EIS file because of her alleged cancellation of individualized education program meetings with parents and that an OPI investigation was underway. Plaintiff claims that after her termination from PS 150, she had no access to the DOE’s systems and any meetings scheduled were automatically cancelled. After the OPI investigation was concluded on or about August 11, 2021, the code was changed from “termination for cause” to “termination of regular sub assignment.” Plaintiff alleges that despite the code change, she continued to be turned down for multiple teaching positions due to the presence of the code. Plaintiff then found employment as a teacher, but at a significantly reduced salary and without the benefits allegedly previously promised. Plaintiff alleges seven claims against the Defendants for their alleged actions: (1) breach of contract; (2) negligence; (3) defamation; (4) negligent hiring, training, and supervision; (5) tortious interference with prospective economic advantage; (6) negligent infliction of emotional distress; and (7) intentional infliction of emotional distress. Plaintiff asks for several forms of relief, including an injunction and Order compelling Defendants to remove all OPI codes that have been placed in Plaintiff’s EIS file and an award of damages. Plaintiff also moves, pursuant to CPLR §3025(b), for leave to amend the complaint. Pursuant to CPLR §3211(a)(5) and (a)(7), Defendants move for dismissal with prejudice on the grounds that: (1) Defendant City is not a proper party to this action; (2) certain claims in Plaintiff’s action should have been brought as an article 78 proceeding and are otherwise time-barred; (3) certain claims in Plaintiff’s action must be dismissed for failure to comply with notice of claim requirements; and (4) the allegations in the Plaintiff’s complaint fail to state causes of action for breach of contract, negligence, defamation, tortious interference with prospective economic advantage and intentional infliction of emotional distress. Analysis As an initial matter, the Court finds that the Plaintiff’s claims should be dismissed as against Defendant City as it is not a proper party to the action. The law is clear that the City of New York is a separate legal entity from the Department of Education (“DOE”) and cannot be held vicariously liable for alleged torts committed by the DOE or its employees. Thomas v. City of New York, 124 A.D.3d 872, 873 (2d Dept. 2015); Tanaysha T. v. City of New York, 130 A.D.3d 916, 917 (2d Dept. 2015); McClain v. City of New York, 65 A.D.3d 1020 (2d Dept. 2009). In McClain, the Court stated that “[a]lthough the plaintiffs sought to hold the City vicariously liable for certain allegedly negligent and intentional acts and omissions of certain employees of the New York City Board of Education…there is no basis for holding the City vicariously liable for the actions of employees of the Board of Education, ‘an entity separate and distinct from the City.’” McClain, 65 A.D.3d at 1020 (citing Bleiberg v. City of New York, 43 A.D.3d 969 [2d Dept. 2007]). Here, Plaintiff is attempting to hold Defendant City liable for the allegedly negligent and intentional acts of the DOE and its employee Defendant Quarles, therefore the claims against the City must be dismissed. Pursuant to CPLR §103(c), Courts have the discretion to convert a plenary action to an Article 78 proceeding, or to convert specific causes of actions to an article 78 proceeding. Dolce-Richard v. New York City Health and Hosps. Corp., 149 A.D.3d 903 (2d Dept. 2017). A special proceeding under article 78 is “available to challenge the actions or inaction of agencies and officers of state and local government.” Id. at 904 (quoting Gottlieb v. City of New York, 129 A.D.3d 724 [2d Dept. 2015]). Courts have found that, even when a plaintiff has styled their causes of action as plenary, such relief is properly subject to an article 78 proceeding when the essence of the plaintiff’s claim is seeking the review of an agency’s determination. Id.; Clogher v. New York Med. Coll., 112 A.D.3d 574 (2d Dept. 2013); Demas v. Levitsky, 291 A.D.2d 653 (3d Dept. 2002). In Dolce-Richard, a former nurse at a city hospital brought an action seeking judgment declaring that her employment was improperly terminated, an injunction directing the hospital to remove an alleged misconduct code from her employee file, and unpaid wages, costs, and attorney’s fees. Dolce-Richard, 149 A.D.3d at 903-904. The Court there found that, although plaintiff contended that her causes of action “sounded in defamation,” she was really seeking the review of the hospital’s termination of her employment and the removal of misconduct codes from her records and therefore needed to bring her claims in an article 78 proceeding. Id. at 904. In Demas, plaintiff commenced an action seeking to recover damages for breach of contract, negligence, tortious interference with a prospective economic advantage, defamation, and intentional infliction of emotional distress against Cornell University and a university professor, stemming from the harm to her reputation in the academic community, the discrediting of her research, and for the alleged theft of her work. Demas, 291 A.D.2d at 658. There, the Court found that although plaintiff’s claims against Cornell were couched in terms of “contract” or “tort,” the claims were directed at academic and administrative decisions to reject the plaintiff’s administrative charges against the defendant professor, and therefore had to be brought in an article 78 proceeding. Id. at 660. Conversely, when a plaintiff has adequately alleged actions other than administrative ones taken by a defendant in connection with their claims, courts have found they were not required to bring their claims in an article 78 proceeding. Cheslowitz v. Bd. Of Trustees of Knox School, 156 A.D.3d 753 (2d Dept. 2017). In Cheslowitz, the Court was unpersuaded by defendants’ argument that the action should have been brought as an article 78 proceeding because the plaintiff adequately alleged actions other than academic and disciplinary decisions taken by the defendants, such as bullying, the destruction of the plaintiff’s property, and engaging in an inappropriate relationship with the plaintiff’s son. Cheslowitz, 156 A.D.3d at 756. The Court there found, that under these circumstances, plaintiff was not required to bring his tort claims in an article 78 proceeding. Id. Under the circumstances of the instant matter, the Court finds that Plaintiff’s claims should have been brought under an article 78 proceeding. The present facts are like those found by the Court in Dolce-Richard and Demas. While couched in terms of “contract” or “tort,” the Plaintiff is in fact challenging Defendants DOE and Quarles’ administrative decisions against her. Unlike the circumstances in Cheslowitz, the Plaintiff makes no allegations of actions taken by the Defendants in connection with her tort claims other than administrative ones. Because the true nature of the case is pursuant to CPLR article 78 and the Plaintiff could have raised her claims in such a proceeding, she should have commenced her action “within four months of the act giving rise to the litigation.” Glob. Revolution TV v. Thames St. Lofts, LLC, 140 A.D.3d 1016 (2d Dept. 2016) (quoting Town of Southampton v. County of Suffolk, 98 A.D.3d 1033, 1034 [2d Dept. 2012]). The action was commenced on August 20, 2022, and as the Plaintiff first became aware of the code on her file sometime between June 28, 2021, and August 11, 2021, a proceeding should have been brought by December 2021. Therefore, Plaintiff’s complaint must be dismissed as untimely, as it cannot be properly converted to an article 78 proceeding. Furthermore, even if the Court were to allow Plaintiff’s claims to proceed in a plenary action, they would be dismissed as time-barred or for failure to state a cause of action. Plaintiff’s claims of breach of contract, defamation, and intentional infliction of emotional distress are subject to a one-year statute of limitations. See N.Y. Educ. L. §§3813(1), (2-b); CPLR 215(3); Blaize v. N.Y. City Dept. of Educ., 205 A.D.3d 871, 874 (2d Dept. 2022); Mohrman v. Johns, 210 A.D.3d 1075 (2d Dept. 2022); Lancaster v. Town of E. Hampton, 54 A.D.3d 906 (2d Dept. 2008). As Plaintiff’s cause of action for these claims accrued on or before August 11, 2021, when Plaintiff was notified that the code that had been placed in her file was changed from “termination for cause” to “termination of regular sub assignment,” and Plaintiff did not commence this action until August 20, 2022, these claims are in fact subject to a one-year statute of limitations and are thus time-barred. In opposition, Plaintiff fails to raise any triable issues of fact and incorrectly relies on the “continuing wrongs doctrine.”1 The continuing wrongs doctrine “may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct.” Salomon v. Town of Wallkill, 174 A.D.3d 720 (2d Dept. 2019) (quoting Selkirk v. State, 249 A.D.2d 818 [3d Dept 1998]). Here, the Defendant DOE placed codes in the Plaintiff’s employee file stating that Plaintiff was “terminated for cause,” which Plaintiff alleges caused her to be terminated from future teaching positions. The alleged wrongful act was Defendant DOE placing the codes in Plaintiff’s file and the loss of future teaching positions was the consequences of that allegedly wrongful act, not independent wrong acts. Id. at 721-722; Henry v. Bank of America, 147 A.D.3d 599 (1st Dept. 2017). As for Plaintiff’s claims of negligence, negligent hiring, training, supervision, negligent infliction of emotional distress, and tortious interference with an economic advantage, the Court finds that the Plaintiff has failed to state a cause of action for these claims. To recover for negligence, a special duty between the defendant and plaintiff must be established. Liability may not be imposed upon a municipal entity, “absent the existence of a special duty together with justifiable reliance thereon by the plaintiff to her detriment.” (Firestein v. Gavlyayev, 282 A.D.2d 430 (2d Dept. 2001) (quoting Feinsilver v. City of New York, 277 A.D.2d 199 [2d Dept. 2000]). Here, Plaintiff fails to adequately allege the existence of a special duty between her and the Defendants, as she cannot rely solely on her status as a teacher, thus she fails to state a cause of action for negligence, negligent hiring, training, supervision, and negligent infliction of emotional distress. Lauer v. City of New York, 95 N.Y.2d 95 (2000); Johnson v. New York City Bd. Of Educ., 249 A.D.2d 370 (2d Dept. 1998). Plaintiff’s factual allegations are insufficient for the claims of negligence. Plaintiff merely states that she relied on the employment contract with Defendants’ to receive benefits but failed to receive those benefits and only states the requirements of a special duty without specific factual allegations;2 these claims are duplicative of Plaintiff’s breach of contract claim and do not sufficiently plead that Plaintiff and Defendants had a special duty outside of the alleged contractual obligations. See Bd. Of Managers of Beacon Tower Condominium v. 85 Adams St., LLC, 136 A.D.3d 680 (2d Dept. 2016); 320 W. 115 Realty LLC v. All Bldg. Constr. Corp., 194 A.D.3d 511 (1st Dept. 2021). To recover for tortious interference with a prospective economic advantage, a plaintiff must allege a specific business relationship with an identified third party, with which defendants interfered, and the plaintiff must plead “more culpable conduct” than is required for tortious interference with an existing contract. Mehrhof v. Monroe-Woodbury Cent. Sch. Dist., 168 A.D.3d 713 (2d Dept. 2019); Influx Capital, LLC v. Pershin, 186 A.D.2d 1622 (2d Dept. 2020). Courts have found a plaintiff has met this standard where the interference was accomplished by wrongful means or where the offending party acted in the sole purpose of harming the other party. Influx Capital, LLC, 186 A.D.3d at 1624-1625. Here, it is arguable that Plaintiff did not establish a business relationship with an identified third party, as the job offers were from schools under the control of Defendant DOE and Plaintiff failed to allege sufficient facts demonstrating that the interference was accomplished by wrongful means or that Defendants DOE and Quarles acted for the sole purpose of harming the Plaintiff. Based on the Court’s findings herein, Plaintiff’s Motion to Amend the Caption is moot. All other relief not expressly addressed herein is denied. This constitutes the Decision and Order of the Court. Dated: July 28, 2023
