New York State Court of Claims

New York State Court of Claims

FITZSIMMONS v. THE STATE OF NEW YORK, #2002-019-570, Claim No. 102100, Motion No. M-65707


State's motion for summary judgment is granted due to Claimant's failure to raise triable issue of fact relative to causes of action of assault and battery; fraud; intentional and negligent infliction of emotional distress; contract; and educational malpractice.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
September 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR 3212 contending this claim has no merit. Claimants oppose the motion. The Court heard oral argument of counsel on this motion on September 16, 2002. This matter is scheduled for trial in the Binghamton District on November 6, 2002.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed March 9, 2000.
  2. Notice of Motion No. M-65707, dated August 20, 2002, and filed August 22, 2002.
  3. Affirmation of Joseph F. Romani, AAG, in support of motion, dated August 20, 2002, with attached exhibits.
  4. Memorandum of Law, in support of motion, dated August 20, 2002.
  5. Affidavit of Douglas Walter Drazen, Esq., in opposition to motion, sworn to September 11, 2002, and unfiled, with attached exhibits.
  6. Memorandum of Law in opposition to motion, dated September 11, 2002.
  7. Supplemental Affirmation of Joseph F. Romani, AAG, in support of motion, dated September 17, 2002, and filed September 19, 2002, with attached exhibits.
  8. Letter from Douglas Walter Drazen, Esq., to Court, dated and received September 20, 2002, with attachments.
Daniel K. Fitzsimmons and Eva L. Fitzsimmons are the parents of Timothy J. Fitzsimmons, born on December 14, 1990 (hereinafter "Claimant" or "Timothy").[1] Timothy was previously diagnosed with autism and is non-verbal. In July 1994, Claimant's parents enrolled him in the Binghamton University's Department of Psychology's Institute for Child Development a/k/a Children's Unit for Treatment and Evaluation (hereinafter "ICD" and/or the "Program"). On June 17, 1998, upon Claimant's return home, his parents discovered bruises on both his forearms which they allege were caused by ICD staff's use of mechanical restraints on their son. This Claim alleges that Claimant was subjected to unreasonable restraint, physical abuse and emotional harm including "extreme fear and anger toward chairs with arms." (Claim, ¶ ¶ 10 & 11).

The State's papers include, inter alia, affidavits and deposition transcripts from Claimant's parents and both former and current ICD staff which warrant a detailed review.

Lisa M. Cooper, has been with ICD since 1992 and is currently an Educational Specialist. The bulk of Ms. Cooper's affidavit justifies a verbatim recitation here since she claims to be the individual who witnessed and responded to a so-called tantrum by Timothy on the date in question. Generally, Ms. Cooper describes Timothy as a pleasure to teach, but acknowledges that he also exhibited behavior common with autism such as "[h]itting, kicking, and hair pulling of staff and other children; and self-injurious behavior by hitting himself against other objects. Tim also displayed non-compliance and disruptive behaviors during classroom activities." (State's Exhibit J, ¶ 2). Ms. Cooper describes meeting Timothy at 8:45 a.m. on the morning of June 17, 1998 and going through the normal morning routine. Ms. Cooper describes the rest of the day as follows:
Upon entering the art class room Timothy became very aggravated and upset. He became disruptive with the classroom materials throwing and pushing folders off the table and pushing over chairs. Timothy made one attempt to throw his chair and I blocked the chair from hitting another child.
I physically prompted Timothy to sit down in his chair. This was done by placing my hands under his arms and guiding him to his chair and sitting him down. The policy at ICD for this situation is to place your hands on the child, guide, not pull, and release any physical hold after three (3) seconds. I have always complied with this policy and did so in this situation. The chairs in the class room have no arms. We do not use any mechanical restraints of any kind. I have never seen or heard of the use of a mechanical restraint on a student at ICD.
After placing Timothy into his chair I sat down in a chair facing him. Timothy continually tensed his whole body and stood up several times. I continued to physically prompt him to sit back down. I had a lot of difficulty getting him to remain seated. During this time Tim also flailed his arms and screamed. Timothy also lashed out to hit another child and did hit me three (3) times with his hands. The intensity of the hits on me on a scale of one (1) to ten (10) were seven (7). The intensity of this tantrum was a ten (10). One meaning minimal and ten meaning maximum. The tantrum lasted approximately thirty (30) minutes.

(State's Exhibit J, ¶ ¶ 6, 7 & 8).

Furthermore, Ms. Cooper also describes the ICD policy of reporting injuries as follows:

[i]t is a policy of ICD to report any signs of injury to a child. This is done by making inquiries with other staff members as to the physical condition of the child. This is done throughout the entire day until the children leaves for the day. If injury is noted it is documented by the nurse a note sent is [sic] home with the student and/or a telephone call is made to the parent. The supervising teacher is also notified. No one came to me asking about any type of injury to Timothy, nor did I notice any injury.

(State's Exhibit J, ¶ 13). Finally, on the day after the alleged incident, Ms. Cooper had an opportunity to view Timothy's bruises and describes them as follows: "I noticed two (2) lightly colored bruises on his right forearm. I had not noticed these marks the day before." (State's Exhibit J, ¶ 15).

The State also submits an affidavit from Michelle D. Konecky, a former ICD employee, who began her tenure with ICD as a teacher's aide and is currently a special education teacher in the public schools of Indianapolis, Indiana. Ms. Konecky corroborates Ms. Cooper's recollection stating as follows:
I recall Timothy being very upset and agitated the morning of June 17, 1998. Timothy had what I would call a tantrum, which involved moving chairs about in the classroom which lasted for a period of time. I remember Lisa Cooper, another teacher, took several minutes to get him calmed down. She used proper technique - physically prompting him to sit in his chair, which did not have arms on it. She placed her hands on Timothy for only three seconds at a time, then released her touch, as we were trained to do. Lisa did not strike or punch Timothy, nor did she grab, hold or restrain him with any great force. She did not strap or belt him to a chair, nor did she or anyone else at the Children's Unit hold him down or tie him to a chair by any means, whether physical or mechanical. After Timothy calmed down, he went about his day as usual, with no other aggressive events that I can remember.
It was never the practice or policy at the Children's Unit to mechanically restrain a child in any fashion, and certainly not by strapping, belting or tying a student to a chair. This absolutely did not happen to Timothy Fitzsimmons on June 17, 1998, nor at any time while I was at the Children's Unit of the Institute for Child Development (ICD).

(State's Exhibit K, ¶ ¶ 5 & 6).

The State's papers also include an affidavit and deposition transcript from Linda Matey, ICD's Educational Services Coordinator. (State's Exhibits G & M). Ms. Matey is actually the focus of Timothy's parents allegations as the person who actually injured their son. (State's Exhibit D, p 129). In her supporting affidavit, Ms. Matey avers as follows:
I do not recall having any direct contact with Timothy. I certainly can state without hesitation, or qualification, that I did not strap or tie Timothy to a chair, nor did I use restraints on Timothy of any kind whatsoever, whether mechanical or otherwise, on June 17, 1998, or at any other time.
It is not the policy, practice, or procedure to use straps, belts, tie-downs or mechanical means on any student for any reason....

(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) [2002]), 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) [2002]).

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 evidence.[2] 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, 1998.[3]
(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).

Remaining theories

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, 64 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 York, Ct Cl, December 6, 2000, Collins, J., Claim No. 100213, Motion No. M-62366, p 5 [UID No. 2000-015-105]).[4]

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.

September 25, 2002
Binghamton, New York

Judge of the Court of Claims

At oral argument, the State argued that the parents' derivative claim was untimely. In view of the disposition on the merits contained herein the Court will not engage in a detailed review of the prior procedural machinations which included, among other things, a withdrawn 10 (6) motion containing only the infant in the caption; two separate Notices of Intention, apparently with different captions; and subsequent letters exchanged between counsel.
The circumstantial evidence outlined by Claimant to support such a conclusion includes inconsistencies in Linda Matey's testimony; the inability of ICD staff to account for every minute of Timothy's whereabouts on the date in question; ICD's failure to fill out an injury/contact form; and the mysterious notation of "taken PM". (Affidavit of Douglas W. Drazen, Esq., ¶ ¶ 3-7).
The parents' depositions are an example of the speculative nature of these assault and battery allegations. Mrs. Fitzsimmons testified as follows when asked why she believed Ms. Matey was the person who assaulted her son:
She was very hostile at our CSE meeting when we decided to take him out of the unit, so much so her face was almost purple she was so angry with us, and it was right after that that he came home with the purple bruises, that he came with the strap marks or whatever they were. And the fact that she volunteered to try to teach him how to use the computer.

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