FILED: ERIE COUNTY CLERK 04/07/ :14 PM INDEX NO /2017 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 04/07/2017

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1 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE MICHAEL RECH, v. Plaintiff(s), Index No.: /2017 ALDEN CENTRAL SCHOOL DISTTRICT and SCOTT PAYNE; AKRON CENTRAL SCHOOL DISTRICT and TODD ESPOSITO, MARISSA VUICH; and ERIE 1 BOCES and MELISSA METZ, Defendants. DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PRELIMINARY STATEMENT This Memorandum is submitted in support of Defendants Motion to Dismiss. For the reasons set forth herein, all claims and causes of action must be dismissed in their entirety. POINT I PLAINTIFF S CLAIM PURSUANT TO FEDERAL LAW IS BARRED BY RES JUDICATA AND/OR COLLATERAL ESTOPPEL Plaintiff s sole cause of action in the instant matter is purportedly brought pursuant to 42 U.S.C (Affirmation of Michael P. McClaren, Ex. A at p. 6 7). Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere. Sykes v. James, 13 F.3d 515, 519 (2 nd Cir. 1993). To prevail on a claim under 42 U.S.C. 1983, a Plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the 1 of 5

2 Constitution and laws; (2) by a person acting under color of State Law. Bryant v. Steele, 25 F.Supp.3d 233 (E.D.N.Y. 2014). As he did previously, the Plaintiff here brings a single cause of action pursuant to 42 U.S.C That claim was previously dismissed by Judge Siragusa, in its entirety, on the merits. (See McClaren Affirmation at Exhibit C). For example, with respect to Plaintiff s claim that the Defendants were somehow violating his son s right to a free appropriate public education, Judge Siragusa held: Plaintiff has not alleged how Defendants are violating his, or his son s, Federal Constitutional rights, or his or his son s rights under a Federal Law. Accordingly, his Complaint is subject to dismissal on that basis. (See McClaren Affirmation at Exhibit C, p. 9). Judge Siragusa also held that the Plaintiff lacks standing to pursue a Constitutional claim. (Id. at pp. 9 11). Likewise, Judge Siragusa dismissed any possible claim pursuant to Monell v. Dep t of Soc. Svcs. of City of New York, 436 U.S. 658 (1978). (Id. at p. 11). Put most simply, Judge Siragusa dismissed all of the Federal Claims, on the merits, and not because of any procedural or other ministerial reason. Accordingly, Judge Siragusa s decision, which has not been appealed, is binding on the parties hereto, and is entitled to res judicata effect. As the New York Court of Appeals held in Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347 (1999): A valid final judgment bars future actions between the same parties on the same cause of action. Once a claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy. O Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981). Thus, res judicata 2 2 of 5

3 applied to issues which were or could have been raised in the prior action. Bielby v. Middaugh, 120 A.D.3d 896, 898 (4 th Dept. 2014). Again, in the instant matter the sole claim brought by the Plaintiff is under Federal Law and it was dismissed, on the merits, by Judge Siragusa. Accordingly, that claim must be dismissed in the instant matter, as well. POINT II DEFENDANTS ARE ENTITLED TO IMMUNITY FROM ANY STATE LAW CLAIMS, AS THE CONDUCT ALLEGED RELATES TO DISCRETIONARY DETERMINATIONS To the extent that the Court liberally construes the Plaintiff s Complaint as raising a State Law claim, any such claim must be dismissed. Municipalities long ago surrendered common-law tort immunity for the negligence of their employees. A distinction is drawn, however, between "discretionary" and "ministerial" governmental acts. A public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not result in the municipality's liability even when the conduct is negligent. By contrast, ministerial acts--meaning conduct requiring adherence to a governing rule, with a compulsory result--may subject the municipal employer to liability for negligence (see, Tango v Tulevech, 61 NY2d 34, 40-41). Thus, it is well established that a municipality may not be held liable for the discretionary governmental acts - i.e., conduct involving the exercise of reasoned judgment - of its public employees, even when such conduct is negligent. Lauer v. City of New York, 95 N.Y.2d 95, 711 N.Y.S.2d 112 (2000). This point was clarified by the New York Court of Appeals in McLean v. City of New York, 12 N.Y.3d 194 (2009), where the Court held that [g]overnment action, if discretionary, may not be a basis for 3 3 of 5

4 liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general. McLean at 203. The Individual Defendants were all employees of a School District Defendant. Thus, to the extent that this Court were to find that any of the Defendants were negligent, and that this negligent action or actions caused injury to the Plaintiff, the claims must be dismissed on immunity grounds. POINT III MICHAEL RECH LACKS STANDING TO PURSUE ANY CLAIM ON BEHALF OF HIS SON Pursuant to CPLR 1201 an infant child, such as the Plaintiff s son in the instant matter, shall appear in an action by a legal guardian or by a parent having legal custody over the infant child. In the instant matter, there is no dispute that the Plaintiff herein does not have legal custody over his son, nor has he been appointed legal guardian. Accordingly, Michael Rech has no standing to pursue any claim under State Law on behalf of his son. With respect to any claim on his own behalf, Plaintiff Michael Rech has failed to state any such viable cause of action. He has asserted no personal injury related to any conduct brought by the Defendants nor has he outlined any viable statutory cause of action or claim against any of the named Defendants, in his own individual capacity. 4 4 of 5

5 CONCLUSION Based on the foregoing, all causes of action, including any state law negligence claims inferred from the Complaint, must be dismissed. DATED: April 7, 2017 WEBSTER SZANYI LLP Attorneys for Defendants By: s/ Michael P. McClaren Michael P. McClaren 1400 Liberty Building Buffalo, New York (716) TO: Michael Rech, Pro Se 5 Hilltop Drive North Chili, New York of 5