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White Plains, NY 10601

News 2016


Dismissal of First Amendment Free Speech Claim

[Harisch v Goldberg, Town of North Castle]


The United States District Court for the Southern District of New York granted our pre-Answer motion to dismiss plaintiff's amended complaint which details a years-long conflict between plaintiff and the Town.


Plaintiff, the former Police Chief of the town of North Castle, brought this suit against Joan Cavorti Goldberg, North Castle’s Town Administrator, the Town of North Castle, and the North Castle Town Board alleging that the defendants retaliated against him in violation of his right to free speech under the First Amendment. Although the plaintiff's complaint detailed the clashes between himself and the defendants, he sought personal relief for personal grievances against the backdrop of the administration of town government and the health conditions of a police station. The Court held that none of the plaintiff’s claims can be the basis of a First Amendment retaliation claim. The Court noted that the First Amendment does not commit the Court to


“judicial oversight of communications between and among government employees and their superiors in the course of official business.” The Court granted defendants' motion to dismiss the complaint.






Dismissal of Breach of Contract and Defamation Claims

[Stanzione v East Islip Union Free School District]


Silverman & Associates obtained dismissal of a Complaint filed in the Supreme Court of the State of New York, Suffolk County, for our client, the East Islip Union Free School District on plaintiff's action seeking monetary damages and injunctive relief based on breach of contract and defamation.


Plaintiff was employed by the district as a full-year leave replacement special education teacher. She was notified by a subsequent superintendent that her appointment was rescinded and she was appointed to a long-term per diem regular education substitute teacher. We successfully argued that the plaintiff's breach of contract claim is time-barred, as is her defamation claim. The Court granted defendant's motion to dismiss.






Dismissal of Claims of Breach of Contract and Retaliatory Termination

[Smith v Nanuet Union Free School District]


The Supreme Court of the State of New York, Rockland County, granted our motion to dismiss a complaint against our client, Nanuet Union Free School District on plaintiff's claims of breach of contract, retaliatory termination, and breach of a duty of fair representation.


Plaintiff brought this action after her employment as a probationary teaching assistant for the district was terminated. We successfully argued that a teacher’s employment may be terminated during her probationary period for any reason or no reason at all. Since the plaintiff was an at-will employee, she could not bring a cause of action in tort for wrongful discharge, as New York does not recognize it. Her claims were also time-barred. The Court granted dismissal of the plaintiff's claims.






Dismissal of Claims of Violations of Procedural and Substantive Due Process for “Bullying”; Dismissal of DASA Claim

[CT et al v Valley Stream Union Free School District]


Silverman & Associates was granted partial summary judgment for our client by the United States District Court, Southern District of New York on plaintiff's claims of procedural and substantive due process, Equal Protection based on race, negligent hiring and training, and violations of the Dignity for All Students Act (DASA).


Plaintiffs brought four claims of First Amendment retaliation and violations under the Fourteenth Amendment, due process violations, and violation of rights to an equal education. Defendants successfully argued that the First Amendment retaliation and Fourteenth Amendment due process violations were time-barred. Furthermore, the Plaintiff failed to state a claim for their due process and disparate treatment claims, as well as their rights to an equal education claim. In a developing area of the law, the Court also found that DASA did not provide a private right of action and dismissed the DASA claim.






Dismissal of Age Discrimination Claim

[Voltaire v Westchester and Ossining High School]


We obtained dismissal of Complaint by the United States District Court, Southern District of New York, on plaintiff's claim that the school failed to place her children into foster care.


Plaintiff is the mother of children who were students at the school that she alleges failed to place them into foster care, as she had asked and as an employee of the school had promised. Defendant successfully argues that plaintiff lacked subject matter jurisdiction, failed to state a claim, and failed to comply with pleading requirements. It did not appear that the plaintiff had alleged any federal claims against the defendant, but even if the plaintiff had, the defendant successfully argued that such claims would be time-barred. The court granted our motion to dismiss.






Second Circuit Affirms Dismissal of Americans with Disabilities Act, Rehabilitation Act, and Individuals with Disabilities Education Act in Case of First Impression

[BC v Mount Vernon School District]


Silverman & Associates obtained a favorable decision from the United States Court of Appeals, Second Circuit affirming granting of summary judgment dismissing the plaintiff’s allegations of violations of the Americans with Disabilities Act (ADA), Rehabilitation Act, and Individuals with Disabilities Education Act (IDEA).


The parents of two students brought an action against our client, the Mount Vernon City School District. Both had been classified as a child with a disability under IDEA and enrolled in remedial classes that were non-credit bearing. Plaintiff alleged that the school district violated the ADA, relying on data on students with disabilities under the IDEA. Affirming summary judgment for the defendants the Court held that the plaintiffs failed to make their case, concluding that aside from their receipt of special education services, there was no evidence as to whether the students were qualified as disabled under the ADA or Section 504. In a decision of first impression, the Second Circuit held that, as a matter of law, an IDEA disability does not necessarily constitute a disability under the ADA or Section 504.






Second Department Affirms Dismissal of Defamation and Hostile Work Environment Claims

[Pall v Roosevelt Union Free School District]


The Appellate Division, Second Department upheld dismissal of claims by a plaintiff asserting defamation and hostile work environment claims under New York Human Rights Law.


Plaintiff was a sixth grade teacher in the district. The plaintiff claimed that the district had failed to redact an anonymous student's derogatory comment in a document generated and distributed by a third-party contractor that referred to teachers generally and plaintiff specifically. The Court determined that the plaintiff did not have a cause of action for defamation because the alleged statement would be construed as opinion, not fact. Plaintiff's allegation of a hostile work environment also fell short. The Court upheld the lower court's dismissal.






Summary Judgment Granted for Sexual Harassment and Hostile Work Environment Claims

[Ilinca v Nassau BOCES]


Silverman & Associates was granted summary judgment by the United States District Court, Eastern District of New York, on plaintiff's claims of sexual harassment, hostile work environment, and retaliation under the Civil Right Act, and retaliation under the Family and Medical Leave Act.


Plaintiff was a bus driver who worked for the Board of Cooperative Educational Services of Nassau (BOCES), who alleged that the person to whom he reported sexually harassed him. Plaintiff's supervisor asked him to help her exercise, called him "skinny boy" and looked at plaintiff's groin while reviewing his evaluation.


The Court found that the plaintiff failed to raise triable issues of fact regarding the existence of a hostile work environment. The Court noted that although the verbal remarks, looks and stares, following Plaintiff around, and the incident in which the supervisor stared at Plaintiff’s groin during his evaluation were inappropriate and grossly unprofessional, with respect to severity, they were relatively mild. The Court granted defendants' motion for summary judgment.




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