(State's Exhibit G, ¶ ¶ 5 & 6). Ms. Matey's deposition testimony
contains similar statements. (State's Exhibit M).
The next affidavit is submitted from Annette M. Nestrick, a former ICD employee
whose responsibilities at the time included speech therapy. Ms. Nestrick avers
that she worked with Claimant from 12:45 p.m. until 1:30 p.m. on the day of the
alleged incident providing speech and hearing services. Ms. Nestrick described
three techniques within ICD policy for controlling outbursts including
"[b]locking, physically prompting with our hands releasing every three (3)
seconds, neutral verbal feedback, and neutral facial and body expressions."
(State's Exhibit H, ¶ 5). However, Ms. Nestrick also avers that "[n]o
mechanical restraints of any kind were ever used, including belts, straps,
tapes, etc.....Mechanical restraints are contrary to ICD policy and practices".
(State's Exhibit H, ¶ 6).
Claimant's papers consist of affidavits from Claimant's parents; an attorney's
affidavit; an affidavit from Claimant's swim instructor stating she observed his
bruises in 1998; a 1999 affidavit from Steve Fales, a physical education
specialist, who avers he witnessed behavioral changes in Timothy after the
alleged incident; as well as an affidavit from a legal intern who previously
served in counsel's office, together with voluminous exhibits comprised mainly
of Timothy's ICD records.
On a motion for summary judgment, the moving party, here the State, "[m]ust
make a prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any material issues
of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324). The tender, of
course, must be by way of evidentiary proof in admissible form. (Zuckerman v
City of New York, 49 NY2d 557, 562). In the event the proponent satisfies
this initial burden, then the burden shifts to the non-moving party, here the
Claimant, to come forward and "[d]emonstrate by admissible evidence the
existence of a factual issue requiring a trial of the action or tender an
acceptable excuse for his failure so to do...." (Zuckerman, 49 NY2d at
560). Furthermore, the Court must accept the non-moving party's evidence as
true and grant him every favorable inference. (Hartford Ins. Co. v General
Acc. Group Ins. Co., 177 AD2d 1046, 1047).
Initially the Court notes the difficulty in ascertaining the causes of action
stated in this Claim in the first instance. The State has done its best to
interpret the allegations contained in this Claim and describes them as assault,
battery, intentional and negligent infliction of emotional distress, and
educational malpractice. This Court agrees that a liberal construction of this
Claim could include the causes of action identified by the State.
(Schleifman v Prime Hospitality Corp., 246 AD2d 789). At oral argument,
Claimant indicated an intent to articulate a fraud cause of action, rather than
one based upon educational malpractice. Nevertheless, for reasons which will
become clear, the Court will review each of these theories of liability,
including educational malpractice.
Assault and Battery
It is well-settled that "[a]n assault is the intentional placing of another in
apprehension of imminent harmful or offensive contact..." (2 NY PJI 21 (Supp)
), whereas battery requires proof of "[b]odily contact, that the contact
was harmful or offensive, and that the defendant intended to make the contact
without the plaintiff's consent [citations omitted]." (2 NY PJI 25 (Supp)
At oral argument, State's counsel was unwilling to concede that the bruises
depicted in Claimant's photographs permit a finding that Claimant suffered harm,
absent expert proof. (Claimant's Exhibit F). In this Court's view, it is
within this Court's common knowledge that the presence of bruising supports a
conclusion that harm did in fact occur. That having been said, however, both
assault and battery require proof of intent and causation. Claimant asserted at
oral argument that direct proof of intent is rarely available and that the Court
may infer such intent from circumstantial
While that may well be true,
Claimant has omitted an important step, namely proof that the State is
responsible for this harm in the first instance. Simply stated, there is no
proof that Timothy's bruises occurred at ICD or as the result of any act taken
by ICD staff. In fact, Claimant's parents indicated that upon discovering
Timothy's bruises they investigated possible causes including the school bus
windows and Timothy's knapsack's buckle straps. (State's Exhibit C, p 157;
Claimant's Exhibit A, ¶ 10). In this Court's view, there is still no way
to exclude these or a litany of other possible factors as the cause of these
bruises without engaging in speculation. The Court is well aware that this
Claimant is unable to relate the details of what, if anything, occurred on this
date. Nevertheless, the Court cannot accept as sufficient to defeat a summary
judgment motion unsupported theories, hearsay recollections, and the speculation
of Claimant's parents as to what may or may not have occurred on June 17,
(State's Exhibit D, p 129).
(Orr v Spring, 288 AD2d 663; Salas v Town of Lake Luzerne, 265
AD2d 770, 771).
Even if this Court were to assume for purposes of this motion that these
bruises were caused by ICD staff, there is still no evidence that any ICD staff
member intended their actions that day to harm Claimant or to place him in
unreasonable apprehension of such harm. Additionally, State's counsel
represented that ICD's hold and release practice was explained to Timothy's
parents upon his entrance into the program, which arguably equates to consent to
this form of touching. In other words, Claimant failed to submit any proof
whatsoever, other than mere speculation, that the alleged contact was beyond the
approved hold and release practice.
In sum, the Court finds no proof that this harm, e.g., the bruises, were caused
by the State in the first instance or, if so, that any ICD staff member
possessed the requisite intent to maintain a cause of action based upon assault
or battery. In this Court's view, Claimant has failed to establish by
admissible evidence the existence of a factual issue requiring a trial on either
the assault or battery causes of action.
It is well-settled that in order to establish a cause of action based on fraud,
Claimant must allege "[r]epresentation of an existing fact, falsity, scienter,
deception and injury [citations omitted])." (Storch v Syracuse Univ.,
165 Misc 2d 621, 626). Claimant's papers contain a litany of alleged fraudulent
misrepresentations which can be broken down into two general categories, namely
(1) inaccurate descriptions of ICD staff qualifications and (2) promises of
certain learning programs for Timothy which were never provided. With respect
to the issue of ICD staff qualifications, there is no proof that the undated
"Photo Array" of ICD staff (Claimant's Exhibit K) or the "Referral and
Admissions Procedures" (State's Exhibit Q) were given to Claimant's parents
prior to Timothy's entrance into the Program. Assuming, arguendo, the Court
were to accept these documents were provided to the parents and that they do in
fact contain false representations, there is absolutely no proof that Dr.
Romanczyk or anyone in ICD intentionally made any representation believed by
them to be false with the intent to deceive. (Storch v Syracuse Univ.,
165 Misc 2d at 629; State's Exhibit L, pp 20-23, 25-26, 38-40; and State's
Exhibit M, pp 24-26, 49-50, 54-55, 57-58, and 72-77). Furthermore, Mrs.
Fitzsimmons does concede that she was told that university students would be
present at the Program. (Claimant's Exhibit A, ¶ 12). Also, it appears
that Education Law 8207 (2) exempts persons employed by a state government or an
institution of higher learning from the licensing requirements set forth in
Education Law Article 159. (Education Law Article 159). With respect to the
remaining allegations, the Court equates them with allegations of educational
malpractice which, for the reasons stated below, are barred by public policy.
(See discussion below).
Claimant conceded at oral argument that New York does not recognize a tort
based cause of action for educational malpractice based upon sound principles of
public policy of judicial noninterference into the process of learning.
(Torres v Little Flower Children's Servs
., 64 NY2d 119, cert denied
474 US 864). Nevertheless, many of Claimant's allegations and theories seem
to be an attempt to circumvent this principle by fitting the facts of this case
into otherwise permissible causes of action. In fact, Torres
specifically rejected similar arguments as presented here relative to purported
statutory violations such as the Education Law, as well as any attempt to
conform similar allegations to one for breach of contract. (Torres
NY2d at 126, 128). However, this Claim is couched in terms of emotional harm.
For that reason, it is worth noting that even if this Court viewed this Claim as
presenting a viable breach of contract claim, it has previously been noted that
"[t]he claimant would be unable to recover damages for mental anguish or
emotional pain since 'as a general rule, there is no right to recover damages
for emotional distress in a breach of contract action in this State (Hess v
Nationwide Mut. Ins. Co.
, 273 AD2d 689, 690; Wehringer v Standard
Security Life Ins. of N.Y.
, 57 NY2d 757)." (Matthews v State of New
, Ct Cl, December 6, 2000, Collins, J., Claim No. 100213, Motion No.
M-62366, p 5 [UID No. 2000-015-105]).
This Claim may also be read to allege both intentional and negligent infliction
of emotional distress. To the extent that this Claim may be construed as
alleging a claim for intentional infliction of emotional distress against the
State, such claims are barred due to public policy concerns. (La Belle v
County of St. Lawrence, 85 AD2d 759). With respect to the allegations of
negligent infliction of emotional distress, such a cause of action requires
proof that the conduct is "'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'". (Dillon v City of New York, 261 AD2d 34, 41 citing
Murphy v American Home Prods. Corp., 58 NY2d 293, 303). Claimant has
failed to show the defendant engaged in any such conduct. In sum, Claimant has
offered absolutely no evidentiary proof to demonstrate the existence of a
triable issue of fact relative to any of the alleged causes of action.
Accordingly, in light of the foregoing, it is ORDERED that the State's motion
for summary judgment, Motion No. M-65707, is GRANTED and Claim No. 102100 is
DISMISSED. This matter is stricken from the Court's trial calendar.