445 Hamilton Avenue, Suite 1102

White Plains, NY 10601

News 2020

12/18/2019; 1/3/2020

Dismissal of ADA, Rehabilitation Act, and Equal Protection Claims

Calandrino Ex Rel. J.C. v. Farmingdale Union Free School


Silverman & Associates obtained a favorable magistrate’s Report and Recommendation, and then a decision by a District Court judge to dismiss Plaintiff’s claims against our client, Farmingdale Union Free School District (District) and certain of its employees.


Plaintiff, on behalf of her minor child, sought compensatory damages from our client, due to alleged violations, including Federal claims under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), the Equal Protection Clause of the Fourteenth Amendment (Section 1983).


Plaintiff is the mother of an eighth-grade student who has Type I Diabetes. He utilizes a glucose monitor to monitor his blood glucose levels via a mobile application on his cell phone. He had a 504 Plan with the District providing him with accommodations for his Type I Diabetes. Plaintiff requested the 504 Plan be updated to permit the student to use his cell phone at any and all times throughout the school day in order for him to text his


parents to help manage his Type 1 Diabetes. The request was initially not granted. Plaintiff commenced this lawsuit. A few months later the District modified the 504 Plan.


The District moved to dismiss each of Plaintiff's three federal claims. We successfully argued on behalf of our client that Plaintiff's failure to exhaust administrative remedies deprived the Court of subject matter jurisdiction. We asserted that Plaintiff's federal claims were subject to the Individuals with Disabilities Education Act's (IDEA) exhaustion requirements and did not fall within the scope of the futility exception. We further asserted that Plaintiff failed to allege any facts to support plausible discrimination or equal rights claims and thus, the claims must fail under Federal Rule 12(b)(6). The magistrate judge recommended that Plaintiff's ADA, Section 504 and Section 1983 claims be dismissed. The District Court, in turn, agreed, accepting the report and recommendation in its entirety.






Dismissal of Article 78 Proceeding

Caputo v. Copiague Union Free School District, et al


Silverman & Associates was granted dismissal of petitioner’s Article 78 proceeding by the Supreme Court of the State of New York, Suffolk County, for our client the Board of Education of the Copiague Union Free School District (District).


Petitioner is a tenured secondary assistant principal who was the assistant principal with the District. The District filed disciplinary charges against petitioner to terminate her employment many years into her tenure. A Hearing Officer issued a four-month unpaid suspension. After the term was complete, the District reassigned the petitioner with pay to work from home. Petitioner moved to declare the current suspension/work from home arrangement null and void, and requested reinstatement to her original position, and reimbursement of costs incurred. Petitioner contended that there was no legal basis for the suspension and that our client had not adhered to the Hearing Officer’s decision. Petitioner failed to show the District’s decision to reassign her to work from home was without reason or rational basis. The District and its superintendent have the authority to reassign a principal. Our motion to dismiss Petitioner’s Article 78 proceeding was granted.






Dismissal of ADA Claims

Purse v. Mount Vernon City School District


Silverman & Associates was granted summary judgment by the United States District, Southern District of New York, for our client, the Mount Vernon City School District (District), dismissing Plaintiff’s claims pursuant to the Americans with Disabilities Act (ADA).


Plaintiff was a music teacher in the District. He was assigned to teach in the band room which sometimes flooded from rainstorms, and mold ensued. Despite reports indicating the mold level was not considered an “environmental concern,” Plaintiff was “getting sick from something” and was not comfortable teaching in the band room. He attempted to transfer to a different school in the District but the transfer was not approved. His respiratory condition was getting worse. Plaintiff met with our client to discuss the mold and his illness and what could be done. He was offered alternative classrooms in which to teach. Plaintiff taught in those rooms for one day and then did not return to work. His doctor advised him not to return to work.


Plaintiff filed a worker’s compensation claim, asserting that he was disabled and unable to work because he was “allergic to the environment” at the school. The Worker’s Compensation Board disallowed the Plaintiff’s claim. The Board found that while Plaintiff could not tolerate mold exposure due to numerous medical issues, his exposure was no greater at the school than it was outside of the building. Plaintiff resigned from the District and subsequently filed the Complaint. After mediation, pretrial, discovery, we moved for and were granted summary judgment on behalf of the District. The District’s denial of Plaintiff’s first transfer was plainly reasonable. Plaintiff was not a “qualified individual” at the time he provided the District with his doctor’s recommended accommodations, so the District could not be held liable for not engaging in an interactive process in that regard.







Dismissal of Due Process, Civil Rights and ADA Claims

Kathleen O’Hara v. Board Of Cooperative Educational Services, Southern Westchester, et Al


Silverman & Associates was granted a motion to dismiss by the United States District, Southern District of New York, for our client, the Board of Cooperative Educational Services, Southern Westchester (BOCES) and certain of its employees, dismissing Plaintiff’s claims alleging violations to Fourteenth Amendment, Title VII of the Civil Rights Act of 1964 (Title VII), and, the Americans with Disabilities Act (ADA).


Plaintiff was employed by BOCES for over 28 years in good standing as a full-time teacher of the Speech and Hearing Handicapped (TSHH). She also had a license to work as a speech and language pathologist. During her employment, Plaintiff was diagnosed with several medical conditions that were exacerbated by stress. Near the end of her tenure, Plaintiff began to feel mounting pressure at work for various reasons. She was asked to use her clinical license to approve services provided to students, which made her uncomfortable given that she was employed by BOCES as a teacher, not a therapist. It put her license in jeopardy. There were repeated acts of violence by students at her campus, which resulted in Plaintiff suffering concussions. Plaintiff requested a transfer,


but it was denied. Plaintiff felt intimidated by a new Assistant Director. Her workload was repeatedly increased when she complained. She was assigned additional students. This harassment and retaliation reached a level where Plaintiff felt she had no choice but to resign.


Plaintiff brought this action claiming that BOCES discriminated and retaliated against her based on her purported disability – her severe medical conditions. We successfully argued on behalf of BOCES that most of her claims were barred by the applicable statutes of limitations because they occurred over 300 days before Plaintiff filed a complaint with NYSDHR. Regarding Plaintiff’s Title VII claims, we argued and the court agreed that she was not part of a protected class, none of Plaintiff’s allegations suggested there was ill will towards the disabled, and none of her allegations had the requisite discriminatory intent. Under the Fourteenth Amendment, Plaintiff had not alleged any conduct severe enough to violate substantive due process. As Plaintiff did not plead that she ever suffered from a disability within the meaning of the ADA, nor suffer discriminatory treatment based on “race, color, religion, sex, or national origin,” her Title VII retaliation claim was without merit.







Dismissal of Free Speech, Due Process, ADA Claims

Hilary Bailey v. Mount Vernon City School District, et al


Silverman & Associates was granted summary judgment by the United States District Court, Southern District of New York, for our client, the Mount Vernon City School District (District) and certain of its employees, dismissing Plaintiff’s claims alleging violations to the First and Fourteenth Amendments, the Civil Rights Act, and, the Americans with Disabilities Act (ADA).


Plaintiff was a math teacher with the District. During his employment Plaintiff was involved in several disciplinary incidents. There were concerns regarding Plaintiff’s students’ understanding the concepts taught by Plaintiff as well as Plaintiff’s managing of his classroom. Plaintiff received a low score on performance evaluations, and he did not comply with certain requirements of mandatory plans to improve performance. Plaintiff taught smaller classes and was assigned to a smaller classroom. Plaintiff noticed respiratory symptoms and emailed the District expressing concern for staff and students occupying that classroom. The District had the air quality analyzed and a report indicated indoor airborne mold present in the room were of acceptable levels. Still not comfortable, Plaintiff had an independent, second air quality test, which also indicated low levels of mold. The District arranged for Plaintiff to teach in that classroom, but he refused and taught in alternative rooms.


These disciplinary incidents led to the Plaintiff to be reassigned to home with full pay and benefits pending a meeting with District and union representatives. Plaintiff filed an


EEOC complaint alleging violations of his rights under the ADA. The assigned Hearing Officer found the Plaintiff guilty of twenty-six of the forty charges brought against him. Hearing Officer concluded that the Plaintiff’s belief that his symptoms were caused by his classroom was unreasonable, and that the proceeding itself was not held in retaliation for having raised concerns about the mold.


Plaintiff appealed the Hearing Officer’s decision to the State Supreme Court, Westchester County, and argued that the charges were in retaliation for his “protected speech” in opposing the District. The Court upheld the findings and decision of the Hearing Officer in their entirety.


In the United States District Court, Southern District of New York, Plaintiff alleged that the District discriminated against him based on his disability, failed to accommodate that disability, and retaliated against him for his protected complaints about working in a classroom with mold. We successfully argued that Plaintiff’s claims were subject to collateral estoppel. The Hearing Officer had clearly decided against the Plaintiff the same issues the Plaintiff sought to place before the District Court. So, the Plaintiff’s failure to accommodate claim was barred by collateral estoppel and dismissed. Since the Hearing Officer’s decision and the Supreme Court determined that the District’s stated non-retaliatory reasons for firing Plaintiff were both true and adequate, the Plaintiff’s retaliation claims failed as a matter of law. The Court granted the District motion for summary judgment.







Dismissal For Failing to Appear at 50-h Examination

James Loporto v. Wappingers Central School District, et al


Silverman & Associates was granted a dismissal by the Supreme Court of the State of New York, County of Dutchess, for our client, the Wappingers Central School District, et al (District), dismissing Plaintiff’s claims.


We successfully argued that Plaintiff failed to appear for a 50-h Examination pursuant to the General Municipal Law, which is required prior to commencing suit against the District. Plaintiff had been scheduled to have an examination but failed to follow through and did not appear at the scheduled time for the examination. Given there were no exceptional circumstances that might excuse his inaction, Plaintiff’s action was dismissed.






09/28/2018; 07/08/2020

Dismissal of ADA Claims

Michael Williams v. Newburgh Enlarged City School District, et al


Silverman & Associates obtained summary judgment dismissal by the United States District Court, Southern District of New York for our clients, the Newburgh Enlarged City School District (District) and its Board of Education, on the Plaintiff’s Americans with Disabilities Act (ADA) action. Plaintiff/Appellant appealed that decision dismissing his ADA claims. In reviewing the summary judgment order, the United States Court of Appeals for the Second Circuit affirmed the judgment in favor of our client.


Plaintiff worked as a cleaner for the District from 1997 to 2014, when he was diagnosed with cancer, requiring him to undergo numerous medical treatments, including chemotherapy. Plaintiff was ready to return to work in 2014, but he was not hired. Plaintiff brought this action against the District, alleging that they did not hire him for a series of positions because of his disability, cancer, in violation of the Americans with Disabilities Act.


We successfully argued for our clients that they were entitled to summary judgment because Plaintiff did not establish a prima facie case of disability discrimination and he could not show that the District’s hiring policy was a pretext for disability discrimination.


The District provided a legitimate, non-discriminatory reason for not hiring Plaintiff for any of the jobs he applied for in 2014: its practice of showing preference to current employees in the District when selecting candidates for open positions, based on the belief that those candidates have already been observed and evaluated by supervisors.


The Plaintiff did not provide evidence sufficient to create a triable issue of fact as to whether his disability was a motivating cause of his failure to be hired, and the District Court granted our client’s summary judgment. The Second Circuit affirmed, stating that Plaintiff failed to show a causal connection between his application for workers’ compensation benefits and the District’s hiring decisions. Plaintiff also failed to produce sufficient evidence to demonstrate that the District’s policy was a pretext for discrimination.







Dismissal of Mandamus Action

In The Matter Of Anthony Futia, et al v. Town Of North Castle, et al


Silverman & Associates was granted a dismissal by the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, for our client, the Town of North Castle (Town) and certain of its employees, dismissing appellants’ petition to hold an election to limit the terms of certain town officials.


The petitioners had filed a petition calling upon the Town to hold an election to limit the terms of the Town Supervisor and members of the Town Board. The Town Board did not reject the petition. But, it did not act on it because Town law did not permit a referendum concerning term limits. The petitioners commenced this proceeding in the nature of mandamus to compel the Town to place the proposition on the ballot for a special election. The Supreme Court, Westchester County granted our client’s motion to dismiss the petition for failure to state a cause of action. Petitioners appealed the judgment. The


Appellate court agreed with the Supreme Court, dismissing the petition, affirming that since there was no statutory basis for a public referendum on term limits, the petition failed to adequately allege a clear legal right to the relief sought.







Dismissal of Claims of Negligence, Breach of Contract, Fraud, Breach of Fiduciary Duty, Permanent Injunction

Bill Chimos And Michelle Butler-Chimos v. Mercy College And Village Of Dobbs Ferry


Silverman & Associates obtained dismissal by the Supreme Court of the State of New York, Westchester County, for the Village of Dobbs Ferry (Village), of Plaintiff’s claims of negligence, breach of contract, fraud, and breach of fiduciary duty.


Plaintiffs own a home in Dobbs Ferry. Their property line is adjacent to Founder’s Hall, a building the Village granted permission to Mercy to use the for administrative offices and student housing. The plaintiffs alleged that Mercy had been converting portions of the pre-existing office space in Founder's Hall into dorm rooms, claiming that these conversions had been performed without obtaining any special permit from the Village, which Mercy knew was a Village requirement. Plaintiff further alleged that Mercy allowed cars and trucks to park outside the parking lot lines in the lot, thus encroaching on neighboring property and setbacks, in violation of the Village Code. The plaintiffs also asserted that they have made numerous complaints about noise throughout the day and night, but the nuisance codes were unenforced by the Village.


We filed a motion to dismiss the Plaintiff’s complaint on behalf of the Village, successfully arguing that the causes of action were vague and untitled and must be dismissed as a matter of law, and the facts in the complaint were insufficient to state claims for relief against the Village.


The plaintiffs' cause of action against the Village for negligence failed because there was no special relationship between the plaintiffs, as owners of their residence, and the Village, with regard to ensuring all the obligations required to be undertaken by Mercy complied with the Village Code. The plaintiffs’ allegation that the Village was liable for the noise and private nuisance arising from the Mercy’s misconduct and violations of Village codes in connection to the conversion of Founder’s Hall failed because the plaintiffs did not show any intent on behalf of the Village. The plaintiffs’ cause of action alleging breach of contract failed as they did not provide any allegation in which the Village entered into an agreement with the plaintiffs.


The plaintiffs’ argued to institute promissory estoppel, but they failed to plead a clear and unambiguous promise by the Village upon which they relied. Assurances by the Village of Mercy's actions or discussions with the plaintiffs about relief of their alleged complaints did not constitute a clear and unambiguous promise. Since the plaintiffs did not allege that the Village intentionally made any false promises to the plaintiffs regarding Mercy their cause of action for fraud against the Village was dismissed. The plaintiffs’ breach of fiduciary duty claim failed because the allegations did not show that the Village promised the plaintiffs that it would ensure Mercy acted to alleviate the plaintiffs' complaints. The plaintiffs also sought a permanent injunction to direct the Village to enforce the building code regarding Mercy’s use of Founder's Hall. Such relief is more properly brought by an Article 78 and not through a permanent injunction cause of action, so the Village could not be compelled to enforce its code. All claims were dismissed.







Dismissal of Claims of Negligent Supervision and Failure to Supervise

Milton v. Valley Stream Central High School., et al


Silverman & Associates was granted summary judgment by the Supreme Court of the State of New York, Nassau County, for our client, the Valley Stream Central High School (School) and certain of its employees, dismissing Plaintiff’s claims alleging negligent supervision and failure to supervise.


Plaintiff was struck by a fellow student after an altercation in the hallway of the School. He brought this suit for injuries he sustained, asserting claims of negligent supervision and failure to supervise against our client.


We successfully argued for our client that they could not be liable for negligent supervision because they had no notice of the dangerous conduct that caused Plaintiff’s injuries. There was no history of prior violence in the location where the altercation took place. Further, the District did not fail to supervise by not calling an ambulance more quickly than it had because that was not a proximate cause of Plaintiff’s injuries. We were granted summary judgement for our client.






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