wall, and holding him there without provocation or justification. Taking the facts alleged by plaintiff as true, this conduct would "shock the conscience," Rodriguez v. Phillips, 66 F.3d 470, 477 (2d Cir. 1995), and as such, constitute the requisite deprivation of plaintiff's right to be free from use of such force. Taylor's liability must be decided by the jury, as it is inappropriate to make such a determination at this stage. Taylor, in addition to having arguably legitimate qualms with the facts as alleged by plaintiff, may also have a colorable defense of qualified immunity. Taking the facts as alleged by plaintiff as true, however, it cannot be said that forcefully grabbing and shoving a student against a brick wall without reason or provocation is objectively reasonable. See Johnson, 239 F.3d at 249-54 (denying teacher qualified immunity defense where teacher grabbed student by throat, dragged him across the floor, slammed his head into bleachers, and punched him). Thus, the availability of any defenses Taylor has is a matter for the jury.
C. State Law Claims
1. Negligence claims
It is well settled that "defendants cannot be held liable for their alleged negligent hiring, training, supervision, or retention of [an employee accused of wrongful conduct] unless they had "notice [of said employee's] propensity for the type of behavior causing plaintiff's harm." Paul J.H. v. Lum, 736 N.Y.S.2d 561, 562 (4th Dept. 2002) (citations omitted); Oliva v. City of New York, 748 N.Y.S.2d 164, 166 (2d Dept. 2002) (negligent hiring); Hahne v. State, 736 N.Y.S.2d 761, 763 (3d Dept. 2002) (negligent supervision); see also Daniels v. Loizo, 174 F.R.D. 295, 299 (S.D.N.Y. 1997) (negligent retention and supervision); Yanez v. City of New York, 29 F. Supp.2d 100, 112 (E.D.N.Y. 1998). Plaintiff has admitted that no prior disciplinary action had been taken against Taylor, and has indicated nothing to suggest that Taylor had a propensity to commit the kind of conduct plaintiff alleges he committed.*fn5 Thus, to the extent plaintiff's third cause of action is based on a theory of negligent hiring, retention, supervision, or training of Taylor, it must be dismissed.*fn6 Similarly, to the extent that this cause of action is based on the breach of a general duty of care owed to students, as plaintiff also seems to allege, it must also be dismissed. The degree of care owed by a school to its student is that degree of supervision that a reasonable parent would undertake in the same or similar circumstances. See Gonzalez v. City of New York, 730 N.Y.S.2d 154, 155 (2d Dept. 2001). Here, Metallo and Palmer both dealt with the situation as it was presented to them, via report by Mr. Pettit, in a prompt and reasonable manner. Palmer made an attorney for the school district aware of the situation, and instructed Metallo to cooperate fully with any further investigation into plaintiff's allegations. Plaintiff has not sufficiently alleged or proven that Mr. Pettit engaged in an inadequate investigation. The pertinent actors in, and witnesses to, the incident were interviewed, and a fair degree of consistency was present in most accounts. Plaintiff cannot hold Metallo and Palmer liable for entrusting the handling of the incident to a person who, by all indications, performed his job in the only way foreseeable. Therefore, the third cause of action, to the extent ordinary or gross negligence is alleged at all against any defendant named therein, will be dismissed.
2. Prima facie tort claim
Defendants have moved for summary judgment on plaintiff's prima facie tort claim. In order to recover under a claim of prima facie tort, a plaintiff must prove four elements: "1) intentional infliction of harm, 2) causing special damages, 3) without excuse or justification, 4) by an act or series of acts that would otherwise be lawful." T.S. Hauler's, Inc. v. Town of Riverhead, 190 F. Supp.2d 455, 465 (E.D.N.Y. 2002); Curiano v. Suozzi, 480 N.Y.S.2d 466, 469 (Ct.App. 1984). "Prima facie tort is a disfavored claim under New York law," Hall v. City of White Plains, 185 F. Supp.2d 293, 304 (S.D.N.Y. 2002), and "may not be invoked as a basis to sustain a pleading which otherwise fails to state a cause of action in conventional tort." Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143 (Ct.App. 1985).
With respect to the first element, that the defendant act with the intent to harm, "plaintiff cannot recover unless the defendant's conduct was not only harmful, but done with the sole intent to harm." See Twin Lab, Inc. v. Weider Health & Fitness, 900 F.2d 566, 571 (2d Cir. 1990) As is implied by the term "sole," if a defendant has any other motive in taking the actions it did, or abstaining from taking action, a plaintiff cannot recover as against that defendant for prima facie tort. Matello and Palmer's actions, and therefore the municipal defendants' actions, i.e., reviewing the investigation report from Petitt and insisting on full cooperation, cannot be said to be done with the sole intent to harm plaintiff. If anything, their actions were meant to help plaintiff, and ensure full complicity with any law that needed to be followed.
The same is true with respect to Taylor. Even if one of Taylor's intents was to harm plaintiff, as plaintiff alleges, it is also plainly evident that another of his intents was to determine if plaintiff was properly in the gymnasium. Taylor stopped plaintiff, at least in part, in furtherance of the goal of not having students without passes roaming the school. The existence of this other intent is enough to defeat plaintiff's prima facie tort claim against Taylor. Summary judgment will be granted to all named defendants in plaintiff's third cause of action.
3. Assault and battery
Plaintiff's fourth cause of action asserts a claim for assault and battery against Taylor. "An `assault' is an intentional placing of another person in fear of imminent harmful or offensive contact," and "[a] `battery' is an intentional wrongful physical contact with another person without consent." United National Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993). Taking plaintiff's factual averments as true, meaning, assuming Taylor "[s]uddenly, without provocation, justification, or warning, . . ., slammed his hands onto plaintiff's shoulders and grabbed hold of plaintiff," and "then forcefully pushed, shoved, and otherwise propelled plaintiff into a solid brick wall," it is clear that Taylor cannot be granted summary judgment on this claim. See Complaint, ¶¶ 26, 28.
Plaintiff has not alleged sufficient evidence to overcome summary judgment on his § 1983 "Monell" claim, nor can the record warrant a denial of summary judgment on his negligence, gross negligence, and prima facie tort claims. The claims against only Taylor, however, i.e., the § 1983 claim and the state law assault and battery claim, do raise material issues of genuine fact, and are thus not subject to dismissal.
Accordingly, it is
1. Defendants, Albany City School District, Albany City High School, Lonnie Palmer, and John Metallo's, motion for summary judgment is GRANTED, and the first and third causes of action are DISMISSED;
2. Defendant Stuart Taylor's motion for summary judgment is GRANTED in part; and the third cause of action is DISMISSED; and
3. Defendant Stuart Taylor's motion for summary judgment on plaintiff's second and fourth cause of action is DENIED.
IT IS SO ORDERED.