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News 2019


Dismissal of Title VII and ADA Claims

[Rajcoomar v. Newburgh Enlarged City School District]


Our motion for summary judgment was granted by the United States District Court, Southern District of New York dismissing the claims against our client, the Newburgh Enlarged City School District (District) and the Board of Education, on the Plaintiff’s Title VII and Americans with Disabilities Act (ADA) claims

Plaintiff was a school monitor for the District. During a snowstorm and a related school opening delay Plaintiff arrived at the school at the normal time, as he was not told of the deal. Plaintiff realized he had forgotten items he needed at his house, so he drove home to retrieve them. On his way back to the school, Plaintiff’s car was rear-ended by a tractor-trailer, and he sustained injuries in the accident. Plaintiff had wanted to file a workers’ compensation claim, but, was allegedly told by the District his accident was not work related. Instead, Plaintiff filed for motor vehicle no-fault benefits, and in doing so affirmed the accident was outside the scope of his work.


After Plaintiff was absent from work for one year, Plaintiff was notified that he was going to be terminated. Plaintiff requested an application for disability retirement benefits from the New York State and Local Retirement System (NYSLRS). The NYSLRS denied Plaintiff’s application for disability retirement benefits. Plaintiff subsequently commenced an Article 78 proceeding. The NYSLRS put in requests for information from the District.


Plaintiff then initiated this Title VII and ADA retaliation action claiming the District retaliated against him for threatening to sue the District on his phone call with the District’s assistant superintendent for human resources. The District successfully argued Plaintiff’s Title VII and ADA retaliation claims failed as a matter of law because Plaintiff failed to present evidence that the District’s legitimate, non-discriminatory reasons for its responses to the NYSLRS were dubious. The Court agreed and granted our client summary judgment.






Dismissal of Title IX Action and Right to Due Process Claims

[Martinetti v. Mangan]


The United States District Court, Southern District of New York granted our motion to dismiss filed on behalf of our clients, the Harrison Central School District Board (District) and the Principal of Harrison High School, on the Plaintiff’s Title IX of the Education Amendments of 1972 (Title IX) and Fifth and Fourteenth Amendments of the United States Constitution claims


Plaintiff brought this action alleging that the District and the Principal violated her rights when they failed to “investigate and take corrective and protective action” after learning that Plaintiff was sexually assaulted by another student off campus. Plaintiff sought compensatory damages. Defendants moved to dismiss on grounds that Plaintiff failed to state a claim under Title IX because of the lack of actual notice and because the District was not deliberately indifferent to claims of sexual harassment. Plaintiff’s constitutional claims against Defendants failed because she did not sufficiently allege a municipal policy or custom that caused the constitutional deprivation.






Dismissal of Negligent Supervision of Student and Negligent Hiring, Training of Employees Claims

[Banegas-Gioielli v. Eastern Suffolk BOCES Board of Cooperative Educational Services]


The New York Supreme Court, Suffolk County granted our motion for summary judgment on the Plaintiff’s claims that our clients did not adequately supervise Plaintiff’s son and was negligent in hiring, training and supervising its employees.


Plaintiff brought this action on behalf of her son to recover for injuries he allegedly sustained in the care of our clients. On the day of the incident Plaintiff’s son became frustrated in class. In an effort to de-escalate him, his special education teacher and his aide employed non-violent crisis intervention (NVCPI) team transport techniques to move him to a behavior intervention room (BIR). Once there the Plaintiff’s son continued to escalate, became physical, and sustained injuries.


We successfully established that the defendants provided adequate supervision to the Plaintiff’s son, and that any lack of supervision was not the proximate cause of the injuries. As a matter of law, once we established that defendants were not negligent in their care of the Plaintiff’s son, the claim for negligent in hiring, training and supervising had to be dismissed.






Dismissal of Malicious Prosecution and Denial of Due Process Claims

[Sharp v. County of Putnam]


The United States District Court, Southern District of New York granted the motion to dismiss filed on behalf of our clients, the County of Putnam and the Putnam County District Attorney’s Office, on Plaintiff’s claims of malicious prosecution and denial of due process.


Plaintiff is an attorney in Westchester. His claims stem from an investigation into witness tampering and other felonies regarding his representation of his client in a prior case. Plaintiff alleged that, throughout the investigation, Defendants engaged in misconduct, making false and fraudulent assertions in applications to the court. Our motions to dismiss were granted because Plaintiff’s claims were time-barred.






Dismissal of First Amendment Right to Intimate Association Claim

[Maselli v. Tuckahoe Union Free School District]


The United States District Court, Southern District of New York granted our motion to dismiss o behalf of our client, the Tuckahoe Union Free School District, on the Plaintiff’s claims of violation of the First Amendment right of intimate association with her brother-in-law.


Plaintiff was a probationary teacher who alleged that the defendants improperly reneged on its decision to hire her because of her relationship with her brother-in-law, who complained to the superintendent of the school district. Plaintiff claimed that the superintendent’s decision not to hire her was vindictive and intended to adversely affect her close relationship with her brother-in-law. Plaintiff claimed this violated her First Amendment right of intimate association.


We successfully argued that Plaintiff failed to establish the existence of a constitutionally protected relationship. The Court agreed that Plaintiff’s allegations lacked critical factual


details necessary to conclude that Plaintiff and her brother-in-law maintained a relationship meriting constitutional protection, and granted our client’s motion to dismiss.





Dismissal of Equal Protection Clause and Due Process Actions

[Conley v. Copiague Union Free School District]


The United States District Court, Eastern District of New York granted our motion to dismiss on behalf of our client, the Copiague Union Free School District (District), on the Plaintiff’s equal protection and due process claims.


The Plaintiff is an African-American student in the District, who, along with his father, brought this action seeking monetary damages for unlawful racial discrimination. Plaintiffs claimed that four separate employees of the District treated the Plaintiff in a discriminatory manner.


Plaintiffs did not assert any factual allegations demonstrating discriminatory intent and so their equal protection claims failed. Also, Plaintiffs failed to state a claim for relief under the Fifth Amendment. Additionally, Plaintiffs failed to establish that the District violated any protected constitutional rights. Since there are no underlying constitutional violations, the District could not be held liable under Monell. Finally, we successfully argued for our client to dismiss Plaintiffs’ Title VII claim on the basis of Plaintiffs’ failure to allege that the harassment was so severe that it deprived Plaintiff of educational opportunities provided by the school. The District’s motion to dismiss was granted.






Showcasing Lack of FLSA Claim in Complaint

[John Benjamin Silverstein v. Massapequa Union Free School District, Nassau County Board of Cooperative Education Services, And Contemporary Computer Service, Inc.]


Silverman & Associates successfully argued before the United States District Court, Eastern District of New York on behalf of our clients, the Nassau County Board of Cooperative Education Services (BOCES) on the Plaintiff’s unspecified employment discrimination clam and a Fair Labor Standards Act (FLSA) claim.


Plaintiff was employed by a school district as a network-systems engineer. He claimed he was promised a pension and healthcare benefits, as well as sick leave and vacation time and that he never received overtime compensation from the District. After five years Plaintiff incorporated as an independent contractor at the request of his supervisor. A new supervisor started giving the Plaintiff low level projects. Plaintiff contracted cancer and two years later his employment was terminated by the District.


He brought this suit alleging several causes of action, among them alleged violations of the FLSA for failure of Defendants to pay overtime to Plaintiff. We successfully argued that the FLSA, federal employment discrimination claims, and state-law claims were time-barred. Furthermore, we indicated that computer professionals are not covered by the FLSA’s overtime provisions, and that because Plaintiff incorporated, he did not meet the FLSA’s definition of an employee. The Plaintiff’s Complaint failed to state a claim against the District. The Court granted the Plaintiff leave to amend this claim to address the concerns we raised and re-plead his federal claims.





12-18- 2019

Notice of Claim Issue

Matter Of Barrer-Cohen V. Greenburgh Central School District


Silverman & Associates was successful in overturning a Supreme Court decision for our client, the Greenburgh Central School District (District). The Court had granted permission to file a late Notice of Claim. The Appellate Division, Second Department’s reversal and denial of this proceeding resulted in our ability to dismiss a breach of contract claim in our ongoing representation of our client in this matter.


The petitioner had initiated this proceeding for leave to serve a late notice of claim to assert claims to recover damages for Human Rights Law violations and breach of contract against her former employer, our client. The Supreme Court had granted the petition. We appealed on behalf of our client.


The petitioner stated that the District had timely, actual knowledge of the essential facts constituting her claims because she filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) prior to serving the late notice of claim. The only evidence submitted, however, showed that the District did not receive notice of the charge of discrimination filed with the EEOC until well after expiration of the 90-day period. Therefore, the petition was denied and the proceeding was dismissed.





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