The opinion of the court was delivered by: Frank P. Milano, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Defendant moves for summary judgment dismissing the claim, which essentially alleges that claimant Antwone Nicholson (Antwone) was caused to suffer electric shock punishment while a student at a Massachusetts private residential school for children with mental or emotional disabilities due to defendant's negligence in failing to properly investigate and/or regulate the school while keeping the school on a list of approved out-of-state residential educational facilities.
Antwone was born on January 15, 1989 and was adopted as an infant by Evelyn Nicholson (Evelyn). Antwone suffered severe abuse as an infant at the hands of his natural parents and is described by his local school district, the Freeport Union Free School District, as emotionally disturbed. Antwone has been diagnosed as suffering from Attention Deficit Hyperactive Disorder as well as Obsessive-Compulsive Disorder.
In the fall of 2003, pursuant to the requirements of Article 89 of the New York State Education Law, the Freeport Union Free School District established a Committee on Special Education (CSE) for Antwone. The CSE, which included representatives of the Freeport Union Free School District, a community aide, a parent representative and Antwone's mother Evelyn, reviewed Antwone's physical, educational, social and psychological history and developed an Individualized Education Program (IEP) for Antwone. The IEP noted that Antwone had a history of aggressive and inappropriate behavioral difficulties, including significant psychiatric treatment and hospitalizations. The IEP found that the school district's general education facilities, related services, resource room programs, special education services, as well as its BOCES programs, were unable to meet the instructional, behavioral, physical, and/or therapeutic needs of Antwone.
New York Education Law 4402 (2) (b) (2) provides that if an appropriate public program is not available to implement a student's IEP, the board of education of the local school district may attempt placement of the student in an in-state or out-of-state private school. The New York State Education Department (SED) maintains a list of approved private in-state and out-of-state residential educational facilities pursuant to 8 NYCRR 200.7.
The IEP found that Antwone would benefit from a behavior modification program to help motivate and sustain learning behavior. Because the school district was unable to provide Antwone with the necessary educational services, due to his disability and because Antwone had already been rejected from several residential educational facilities in the State of New York, the IEP recommended that Antwone be placed at the Judge Rotenberg Center (JRC) in Canton, Massachusetts. Antwone's mother, Evelyn, signed the IEP, signifying her acceptance of the IEP recommendations.
The defendant, whether through the State Education Department or otherwise, was not a member of the Committee on Special Education and did not participate in the formulation of the Individualized Education Program for Antwone. The defendant had no role in placing Antwone at the JRC other than to place and maintain JRC on the list of approved out-of-state private educational facilities from which the Committee on Special Education, including Antwone's mother Evelyn, chose JRC.
At all relevant times, JRC was an approved Massachusetts private residential special education school program subjected to regular reviews conducted by the Massachusetts Department of Education in order to maintain "full approval" status. JRC was also subject to announced and unannounced monitoring visits throughout the approval term by the Massachusetts Department of Education and by any school district which had placed students in the program.
Subsequent IEPs for Antwone for the 2004 2005 and 2005 2006 school years noted the use of aversive behavioral intervention on Antwone through the use of a Graduated Electronic Decelerator (GED) which administers an electric shock to a wearer of the device in response to inappropriate behavior. These subsequent IEPs were also signed by Antwone's mother, Evelyn, demonstrating her knowledge and acceptance of the IEP provisions.
Prior to use of aversive interventions on Antwone, including use of the GED, Massachusetts law required JRC to obtain an order, judgment and decree, dated October 27, 2004, from a Justice of the Probate and Family Court of the Commonwealth of Massachusetts permitting use of the aversive interventions and appointing Evelyn Nicholson permanent guardian of Antwone to "monitor [along with an appointed court monitor] the administration of the Amended Behavior Modification Treatment Plan . . . of the Judge Rotenberg Educational Center, Inc." Antwone was represented by a court-appointed Massachusetts attorney during the Massachusetts court proceeding. After a hearing, the order, judgment and decree of the Probate and Family Court of the Commonwealth of Massachusetts found, by clear and convincing evidence, that:
"JRC's Amended Behavior Modification Treatment Plan and Anti-Psychotic Medication Treatment Plan are the most effective, least restrictive means available for treating the Ward at the current time. The prognosis for the Ward without treatment is poor. The prognosis with treatment is cautiously optimistic for improvement in his problematic behaviors."
In support of its application, defendant provides the affidavit of James P. DeLorenzo (DeLorenzo), Statewide Coordinator for Special Education Services in New York's Office of Vocational and Educational Services for Individuals with Disabilities.DeLorenzo avers that New York State had no "policies or regulations in effect that would prohibit the use of aversive interventions by either in-state or out-of-state schools," during the time periods relevant to the claim.
DeLorenzo states that the New York State Department of Education performed monitoring of JRC through periodic on-site inspections, and further "relied on the oversight by the Commonwealth of Massachusetts," through both its Department of Education and its Probate and Family Court.
DeLorenzo asserts that placement of a private school, eligible for New York State funding, whether in-state or out-of-state, on the SED list of approved schools "is a discretionary determination made by the SED based on the criteria set forth in Section 200.7 for the approval of private schools for students with disabilities funded pursuant to Article 89 of the Education Law."
Finally, DeLorenzo maintains that JRC "remained an approved school based upon discretionary determinations made by the SED in its periodic reviews of JRC."
The claim alleges that defendant violated Antwone's civil rights; intentionally and negligently disregarded New York State regulations concerning the use of corporal punishment; caused and consented to the assault and battery (including electric shock) of Antwone; negligently placed Antwone in JRC; negligently failed to investigate JRC; failed to enforce certain laws; and negligently caused Antwone to eat only vegan food while residing at JRC.
"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).
"In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion" (Archambault v Martinez, 120 AD2d 632, 632-633 [2d Dept 1986]). Further, "mere conclusions, expressions of hope or ...