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T.Z. v. City of New York

July 17, 2007


The opinion of the court was delivered by: Sifton, Senior Judge


Plaintiff C.G., an infant under the age of fourteen years at the time of the events giving rise to this lawsuit, through her guardian T.Z.,*fn1 commenced this action on November 1, 2005 against defendants City of New York ("City"), the New York City Department of Education ("Education Department"), Frank DiFranco ("DiFranco"), and Robert Raskin ("Raskin"), in connection with an alleged sexual assault of C.G. by two fellow students in a classroom while defendant Raskin was present. Plaintiff alleges violations under 42 U.S.C. §§ 1981, 1983, and 1985; 20 U.S.C. § 1681; as well as state law claims of negligence and infliction of emotional distress.*fn2 Plaintiff seeks compensatory and punitive damages, in addition to attorneys' fees. Now before this Court is plaintiff's appeal of the Magistrate Judge's orders dated February 21, 2007 and March 1, 2007 (1) denying plaintiff's discovery requests concerning an investigation of a sexual assault incident that occurred in June 2000 and (2) denying plaintiff's request to inspect and photograph the classroom in which the assault on plaintiff allegedly occurred. For the reasons set forth below, the Magistrate Judge's order regarding the Special Commissioner's report is affirmed without prejudice and the Magistrate Judge's order with respect to plaintiff's request to photograph the classroom is reversed.


The following facts are taken from plaintiff's Complaint, the record of the proceedings before the Magistrate Judge, and the submissions of the parties in connection with this appeal. Disputes are noted.

Factual History

Infant plaintiff C.G. is a minor, born on June 28, 1991. At all times relevant to this action, C.G. was enrolled at Junior High School 278 ("JHS 278") as a special needs student. JHS 278 is located in Kings County, New York.

Defendant City of New York is a municipal corporation existing under the laws of the State of New York. Defendant New York City Department of Education is an agency of defendant City, with control over the City's public schools. Defendant Education Department receives federal financial assistance. Defendant Raskin is a teacher employed at JHS 278 and is an employee of the City and the Education Department.

Plaintiff alleges that on November 9, 2004, two students enrolled at JHS 278 assaulted a female student identified as "Shanique" in Room 204 of JHS 278 during a computer class conducted by Defendant Raskin. Plaintiff states that after assaulting "Shanique," the two students sexually assaulted C.G. while defendant Raskin was present. A fellow student stopped the assault, at which point C.G. fell to her knees crying. Plaintiff alleges that defendant Raskin walked over to C.G. and stated that "she should get off her knees because she wasn't in church." Complaint ¶ 56.

On December 13, 2004, plaintiff alleges that C.G. was touched by a different student than the one involved in the earlier incident at JHS 278. Plaintiff states that C.G. became afraid and told the student not to touch her. Later that afternoon, the student who had touched C.G. earlier in the day approached her and "put his hands in her face." Complaint ¶ 59. C.G. struck the student, and the student then struck C.G. On December 14, 2004, C.G. was required to attend a meeting in the office of defendant DiFranco, vice principal of JHS 278. DiFranco allegedly referred to C.G. as "not a victim but a thug," Complaint ¶ 65, and suspended C.G. from school for five days. Plaintiff alleges that the other student involved in the December 13, 2004 altercation was not punished.

Procedural History

Special Commissioner for Investigation's Report

After plaintiff commenced this action, during the course of discovery, plaintiff obtained a report issued by the Special Commissioner for Investigation of the New York City School District. The report concerned a sexual assault incident involving six girls at JHS 278 on June 9, 2000, four years prior to the incident involving plaintiff C.G. According to the report, on June 9, 2000, around 35 teachers took the afternoon off, and the principal, with limited staff, declared an "extended recess." Plaintiff Exh. A, Special Commission Report ("Report"), p. 1. During the recess, "hundreds of students . . . crowded the schoolyard, with little supervision." Id. "[I]n the sprinkler area" of the schoolyard, several sixth and seventh grade girls were sexually assaulted by eighth grade boys. Id. The dean of the school witnessed at least one of these incidents. See id. p. 3. The dean instructed the victims of the incident to write a statement describing the event in the auditorium and they were then sent back into the schoolyard. Id. One of the report's findings was that the school officials, including defendant Frank DiFranco, who was a teacher at the time, failed to call the police immediately upon learning of the attack and, instead conducted their own investigation. They compounded that failure with their insensitive treatment of the parents of the victims, including their repeated avoidance of police involvement and their refusal to allow school phones to be used to alert law enforcement.

Report, p. 8. The Special Commissioner for Investigation recommended that disciplinary action be taken against the school officials, including DiFranco. Id.

On April 21, 2006, plaintiff served defendants with a written demand for disclosure, calling for production of the investigative file compiled in connection with the Special Commissioner for Investigation's Report. Defendants objected to the demand, and on February 21, 2007, the issue was raised at a discovery conference before Magistrate Judge Azrack. Plaintiff states that at this conference, "plaintiff urged [Magistrate Judge] Azrack to preclude defendants from challenging the report's factual accuracy or, in the alternative, compel defendants to comply with plaintiff's demand for all documents pertaining to the investigation." Madeline Lee Bryer Affirmation in Support of Plaintiff's Objections to Orders of Magistrate Judge ("Bryer Affirmation") ΒΆ 6. Later that day, Magistrate Judge Azrack issued a written order, ruling that "plaintiff's application for additional documentation relating to [June 9, 2000] schoolyard incident denied as it has report already." Magistrate Judge Order dated Feb. 21, 2007. By letter dated February 23, 2001, plaintiff ...

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