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Eskenazi-Mcgibney v. Connetquot Central School District

United States District Court, E.D. New York

February 6, 2015


For the Plaintiffs: Scott M. Mishkin, Esq., Kyle T. Pulis, Esq., Of Counsel, Scott Michael Mishkin, P.C., Islandia, NY.

For the Defendants: Joshua S. Shteierman, Esq., Of Counsel, Devitt Spellman Barrett, LLP, Smithtown, NY.

For the Defendants: Adam I. Kleinberg, Esq., of Counsel, Sokoloff Stern LLP, Carle Place, NY.


ARTHUR D. SPATT, United States District Judge.

On March 10, 2014, the Plaintiffs Robin Eskenazi-McGibney (" RM" ), John McGibney (" JM" ), and RM and JM for their then minor child Joshua Eskenazi-McGibney (" JEM" )(collectively the " Plaintiffs" ) commenced this action against the Defendants Connetquot Central School District (the " District" ), Eastern Suffolk BOCES (" BOCES" ), the District Superintendent Alan B. Groverman (" Groverman" ), the Assistant Principal of the BOCES facility attended by JEM, Roberta Kempf (" Kempf" ), the District Transportation Supervisor William Miller (" Miller" ), the Principal of the Connetquot High School Gregory J. Murtha (" Murtha" ), the Principal of the BOSES facility attended by JEM, Nancy Smalling (" Smalling" ), BOCES teacher Josett Celaberti, teacher Karen Flannigan (" Flannigan" ), and the District Administrator for Special Education Donald Gamorano (" Gamorano" ).

As against the District and BOCES, the Plaintiffs asserted claims for discrimination and retaliation in violation of Title II of the Americans With Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act (the " Rehabilitation Act" ), 29 U.S.C. § 701 et seq., 42 U.S.C. § 1983; the Dignity for All Students Act, L. 2010, ch. 482, § 2, New York Education Law § 10 et seq.; prima facie tort; negligence; special damages for gross negligence; negligent hiring, retention, and supervision of the District's employees and agents.

As against the Individual Defendants in their official and individual capacities, the Plaintiffs asserted claims under 42 U.S.C. § 1983; New York Education Law § 290 et seq. , prima facie tort; negligence; and special damages for gross negligence.

On April 3, 2014, BOCES, Kempf, Smalling, and Celaberti moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6) to dismiss the complaint as against them for failure to state a claim upon which relief can be granted.

On May 30, 2014, the District, Groveman, Miller, Murtha, Flannigan, and Gamorano also moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint as against them for failure to state a claim upon which relief can be granted.

On August 8, 2014, the Plaintiffs cross-moved pursuant to Fed.R.Civ.P. 15(a) for leave to file an amended complaint, even though they maintain in the first instance that such leave is not necessary because the Defendants have yet to answer the original complaint. Rule 15 of the Federal Rules of Civil Procedure sets forth the rules governing amended and supplemental pleadings, and provides that, if more than 21 days has elapsed after a defendant has served a motion to dismiss under Rule 12(b), a party may amend its pleading only with leave of court or with the opposing party's written consent. Fed.R.Civ.P. 15.

In the instant matter, in order to amend the complaint, the Plaintiffs must first obtain leave of the Court because the Defendants have not given such consent, and more than 21 days have elapsed since the motions to dismiss were filed. Cf. Azkour v. Haouzi, No. 11 CIV. 5780 (RJS)(KNF), 2012 WL 3667439, at *2 (S.D.N.Y. Aug. 27, 2012)(recounting the prior procedural history of the case, including the determination that the Plaintiff's motion to amend his second-amended complaint was " was unnecessary, because, at the time he filed his amended pleading '1) 21 days had not elapsed after service of any of his pleadings-he had not served any of his pleadings on any defendant; and 2) 21 days had not elapsed after a responsive pleading or Rule 12(b), (e), or (f) motion had been served . . . .'" ).

Nonetheless, the Court exercises its discretion to grant the Plaintiffs' motion for leave to file the amended complaint. Rule 15(b) provides that leave to amend pleadings should be freely given when justice so requires. " When determining whether to grant leave to amend, district courts consider: (i) whether the party seeking the amendment has unduly delayed; (ii) whether that party is acting in good faith; (iii) whether the opposing party will be prejudiced; and (iv) whether the amendment will be futile." Gorman v. Covidien Sales, LLC, No. 13 CIV. 6486 (KPF), 2014 WL 7404071, at *2 (S.D.N.Y. Dec. 31, 2014).

Here, the Court finds that the proposed amended amendment is not the product of inordinate delay or bad faith on the part of the Plaintiffs. Indeed, the Court notes that they primarily seek to remove certain causes of actions and certain defendants. Further, the Defendants will not be prejudiced if leave to amend were granted, as the parties have not conducted discovery nor has there been an initial conference.

Not surprisingly, the Defendants limit their opposition to the Plaintiffs' cross-motion for leave to file an amended complaint to the argument that any amendments would be futile. " An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)." Annunziato v. Collecto, Inc., 293 F.R.D. 329, 333 (E.D.N.Y. 2013)(citing Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002)). " Therefore a proposed amendment is not futile if it states a claim upon which relief can be granted." Waltz v. Board of Educ. of Hoosick Falls Cent. School Dist., No. 1:12-CV-0507 (GTS)(CFH), 2013 WL 4811958, *4 (N.D.N.Y. Sept. 10, 2013)(citations omitted).

Here, as the Defendants had sufficient opportunity to respond to the proposed amended complaint, the merits of the Defendants' motions to dismiss will be considered in light of the amended complaint. See Schwartzco Enterprises LLC v. TMH Mgmt., LLC, No. 14-CV-1082 (ADS)(GRB), 60 F.Supp.3d 331, 2014 WL 6390299, at *1 (E.D.N.Y. Nov. 17, 2014)(" Where, as here, the Plaintiff seek to amend his complaint while a motion to dismiss is pending, a court 'has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion [to dismiss] as moot to considering the merits of the motion in light of the amended complaint.'" )(citations omitted); see Clark v. Dematic Corp., No. 5:14-CV-750 (DNH), 2014 WL 6387166, at *2 (N.D.N.Y. Nov. 14, 2014).


Unless otherwise stated, the following facts are drawn from the amended complaint, and construed in a light most favorable to the non-moving parties on the motions to dismiss, namely the Plaintiffs.

A. The Factual Allegations

At all times relevant to this action, JEM was a student at Connetquot High School and BOCES. RM is JEM's mother and JM is his father.

JEM, eighteen years old at the time of the filing of the amended complaint, was diagnosed with a number of learning disabilities at a young age. For example, JEM has been clinically diagnosed with attention deficit hyperactivity disorder (" ADHD" ).

As a result of his learning disabilities, JEM was required to attend special education courses at both Connetquot High School and BOCES. During the 2012/2013 school year, JEM, then seventeen years old, was enrolled in second and third grade courses for mathematics, science, and social studies.

In or about September 2012, while attending BOCES, a classmate, Chris, approached JEM and, without provocation, struck him. Upset, JEM reported this incident to RM and JM. As RM and JM believe this to be a one-time incident, they did not report it to any school officials, but rather telephoned Chris's mother and advised her as to what had transpired.

In or about November 2012, while on a school trip to a movie theater with students from the District and BOCES, Chris again approached JEM and, without provocation, struck him. Upset, JEM reported this incident to his parents that night.

RM immediately contacted one of JEM's friends, who had witnessed the incident, and he confirmed that Chris approached JEM and hit him for no reason. RM subsequently told JEM to report the incident to Celaberti, JEM's BOCES teacher, the following day.

JEM reported the incident to Celaberti. RM contacted Celaberti to confirm that JEM had reported the incident to her. Celaberti allegedly stated that she would take care of the situation, but that, in the interim, RM should notify the District, as well as the bus drivers.

According to the Plaintiffs, Celaberti failed to take any action in response to JEM's complaint, and failed to notify any other school officials about what had taken place.

RM later contacted Gamarano and Flannigan to advise them both of the September and November 2012 incidents involving Chris and JEM. Gamarano and Flannigan assured RM that they would take care of the situation. Gamarano and Flannigan advised Murtha, but apparently no further action was taken in response to the Plaintiffs' complaints. In fact, Chris remained in JEM's classes as both the High School and BOCES, and was not suspended, disciplined, or separated from JEM.

Chris also allegedly verbally harassed JEM and threatened him on multiple occasions. For example, during that school year, Chris approached JEM on a number of occasions and threatened him and RM's life, stating " I'm gonna fucking kill you and your mother," and " I hate you and your mother." JEM became emotional from this verbal harassment and the threats and was fearful of Chris causing harm to him and/or RM.

Despite the Plaintiffs' complaints to both BOCES and District administrators, the verbal and physical abuse by Chris continued. In or about March 2013, while JEM was sitting in a BOCES class engaged in conversation with a friend, Chris approached JEM and hit him again. Later that day, JEM returned home from school and was so emotional about what had transpired that he cried uncontrollably, banged on the walls, and became irate.

JEM and his friend then told RM and JM about this latest incident, and advised them that JEM had reported the incident to the assistant teacher in charge of the classroom that day.

The next day, RM contacted Kempf and advised her of the September and November 2012 incidents, the continued verbal abuse, and also the incident that took place the day before.

RM questioned Kempf as to why nothing had been done over the course of the previous seven months to provide JEM with a harassment-free environment. Kempf simply responded that she would look into it and to call her back the following Monday. However, Kempf allegedly failed to take any action. When RM did not receive a phone call on Monday from Kempf, she called Kempf again and was told that he was in a meeting.

Soon thereafter, RM contacted Lou Malerba, the head of the Special Education Department at the high school, and asked him what was being done in response to the various incidents. He responded that he would look into it.

Despite the Plaintiffs' continued complaints to the District and BOCES, the harassment and ...

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