SUPREME COURT - STATE OF NEW YORK - COUNTY OF NASSAU PRESENT: HONORABLE JOHN M. GALASSO, J,

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1 """""""""""""""""""""""""""...,""""""""'" ''''''-'-.,-,,..., '''''''''',,,,,,,,,,,,,, "''''''''''''''''... ''''.-," '''-' ''' ~~~.,v SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK - COUNTY OF NASSAU PRESENT: HONORABLE JOHN M. GALASSO, J,,...,..."".0""",,,,""'.'.""""""""'" DEBORAH A. TORAN and LARRY TORAN Individually and as legal guardians of GREGORY TORAN Plaintiffs Index No /09 Sequence #s Part 37 - against - ED ARRENDONDO, GLORIA WILKINS, MS. DI FILIPPIS, EILEEN WEISSMAN, PAM HARTflf and KEITH HARTIN, Defendants 06/14/10.-'''''''...-.-'''''' Notice of Motions '"'' Afflnnation In Support Supplemental "i\ffirmation Affidavit In Reply and Opposition... """""""""'"''''''... Exhibits In Opposition..., eply Affilmadons......, Memorandum...,...,...,....,......,. Corresponden(te S. Robert Kroll, Esq. June 7, 'J,"- "",-,"''-'''.-''.-ro-- U_,".- '.I..,,.."".."","'''-'.-'''-'-''.-''r- For the purposl;:s of this decision, the Court assumes f \1niliarity with its decision and order dated March The above caption is the caption from the amended complaint. The defendants remaining upon the prior decision are Eileen Weissman, Pam Hartin, Keith Hartin, Ed Arrendondo, Gloria Wilkins and Frances Di Filppis sib/a Ms. Di Filippis Upon the foregoing papers, including copies ofplaintiti's documents which have been deemed Exhibits in Opposition " defendants three motions to dismiss the amended complaint are determined as follows: The gravamen of plaintifi Deborah Toran s * complaint is that her disabled daughter was sexually assatdted by a fellow female student on January 18, 1999 while she accompanied by plaintiff were visiting at the student's home for a play date. * For the purposes of these applications, Deborah Toran is referred to as plaintiff; her son Gregory shall be identified as such and her daughter wil not be specihcally identifed since she is no longer a named defendant.

2 ' '---' ' ""----""-' ----' , _._ 'J'. TORAN v. ARRNDONDO, Index No According to plaintiff, defendant Eileen Weissman, the girls ' Team Leader at the school they attented, had recommended the home visit between the girls, notwithstanding her knowledge of the student's disciplinary and mental history. Plaintiff maintains her daughter did not infoml plaintiff about the assault after it occurred. One year later, the same student visited plaintiff' s residence unannounced and sexually assaulted plaintiff's son, Gregory. When Gregory informed plaintiff of what happened, plaintiff states she notified the police as well as defendant Weissman at her daughter s school. In turn, defendiint Weissman contacted Child Protective Services (CPS) and informed defendant Arrendondo of the assault, allegedly advising CPS that plaintiff was responsible for the assault on Gregory, having permitted the student access and exposure to Gregory lmowing of her proclivities an( aberrant behavior from the incident a year ago. Plaintiff asserts that neither defendants Weissman nor Arrendondo contacted the police which they should ha', but when they were questioned pursuant to plaintiff's complaint, they advised the police that plaintiff was responsible for the assault. In addition, notwithstanding their prior lmowledge cfthe student's behavior, defendants Weissman and Arrendondo did not properly investigate the first incident or inform plaintiff or Gregory of its results or prevent the student from attending the school. Instead, knowing that plaintiff was uaaware of the first incident with her daughter, in reckless disregard for the truth, misrepresentee! the facts of what occurred, thereby damaging plaintiff's reputation and forcing her to move her family to a different community. As to defendajl!ts Pam and Keith Hartin, plaintiff an ges they possessed a police and emergency radio monitortng device, learned of plaintiff' s emergency calls and discussed the radio broadcasts and assorted ajlegations against plaintiff with defendant Weissman, an acquaintance. Then, with disregard for the truth, the Hartins disseminated the f 11se allegations to plaintiff's neighbors. Turning to the Hartins' motion to dismiss, the amended complaint' s fourth and sixth causes of action, for the purposes of this application the Court must assume in plaintiff's ftwor that the Hartins and defendant Eileen Weissmml knew each other a decade ago, talked about plaintiff's situation, and verbalized false information regarding plaintiff's responsibility for the events to plaintiff's neighbors, The causes of action in the amended complaint against Pam Hartin and Keith Hartin are all dismissed as t me barred (Seq. #005). * In the Court's prior decision plaintiff was directed to serve a more definite amended complaint against defendants Weissman and th;: Hartins. The so-called re-amended complaint (second amended complaint) which has been attached to these papers is invalid (see CPLR 3025).

3 ----'--- --'- ~~~~~~ TORAN v. ARJRENDONDO, Index No /09--- _N_--_N_---- '_N_ --3 First, the causes of action sound in defamation (slander) pertain to plaintiff and her husband only, since there is no assertion that anyone connected to this case tried to hold Gregory responsible or blamed him in any way. Consequently, the defamation claim by the parents must be dismissed as time barred under the one year statute of limitation (CPLR 3211 (a) 5. and Sec. 215). To the extent plaintiff is asserting negligent tortuous conduct against herself and her husband, the three-year stat 1te of limitation applies (CPLR Sec. 214). Moreover, as f.or the "outrageous conduct" that must be asserted against these defendants for inflction of en;wtional distress, there are no allegatiuns contained in the complaint that Gregory suffered seven emotional distress as a result of the Hartins, for lack of a better verb, gossiping, or that the requ.ired intent to cause emotional distress was directed Kalina specifically at him (see v. General Hospital, 31 Misc. 2d 18 aii'd 18 AD2d 757 aii'd 13 NY2d 1023). The parents ' c mse of action for intentional inflction of emotional distress may not be maintained wrtere the conduct complained of falls within the ambit of other traditional tort liabilty (Fischr.r v. Maloney, 43 NY2d 553). In any event, the statute of limitation for this cause of action is one year (CPLR 215 (3)). Finally, a caus' of action based on prima fllcie tort, otherwise referred to as intentional inf1iction of economic c.mages without excuse or justitlcatio!l, may not be asserted to avoid a statute of limitation by denominating a claim as such (Driery v. Tuder 210 AD2d 891). The acts relied upon must be i1l0tivated by a malevolent intention to harm (Curiano v. Szwzzi 63 NY2d 113; Ruza v. Ruza 286 AD 767; see Burns Jackson v. Lindner 59 NY2d 314). Again, there are no allegations the Hartins intended to harm Gregory. Furthermore, a prima facie tort based on injury to one s reputation is governed by the one year statute of limitation (CPLR 215 (3); Morrison v. Ncuional Broadcasting Co., 19 NY2d). An alleged injury to one s economic interest is three years (Jemison v. Crichlow 139 AD2d 332 airel on other grounds 74 NY2d 726). Accordingly, the Hal,tins' motion to dismiss is granted (Seq. #005). Turning to defendants Arrendondo, Wilkins and Di Filippis' motion to dismiss the complaint and the amended Gomplaint pursuant to CPLR 3211 (n) 7. and General Municipal Law Sec. 50- (assuming arguendo that these defendants were properly served), that application is likewise granted (Seq. #006). The notice ofelaim fied on April 14, 2004 fled on behalf of the plaintiffs herein was not brought specit1cally against Child Protective Services (CPS). Nevertheless, defendants Arrendondo, Wilkins and Di Filippis, as CPS and County employees, were entitled to notice under General Municipal Law Sec

4 .. ~~~~~ ' --""" ~~~~~ TORAN v. ARRENDONDO Index N o. 0266i81/09- As with the Hartins, the plaintiff parents are also time barred under the prevailing statutes of limitations fron commencing the lawsuit against these defendants under any legal theory (CPLR 3211 (a) 5. Smith v. Long Beach 276 AD2d 785). In any event, ahhough named in the caption of the original complaint, there are no allegations addressed against them, the allegations contained therein being limited to school personnel (see paragraph 2.). Even the amended complaint is devoid of any factual assertions against defendants Wilkins and Di Filippis; consequently the complaint against these two individuals must be dismissed on that ground, also (CPLR 3211 (a) 7). As for the amended complaint against defendant Arrendondo by the infant plaintiff Gregory brought by his parents in his behalf: the requirement of filng a notice of claim against the County employee first before commencing litigation stil applies in the case of an infant (Manceri v. City of New York, 23 Misc. 2d 94; cf Cohen v. Pearl River Union Free School District 51 NY2d 256; Wiliams v. Nassau County Medical Center 13 AD3d 363, qff'd 6 NY3D 531). There is no allegation in the complaint that one was served (see Jones v. City of New York 300 AD2d 359). Moreover, aside from the fact that defendant Arrendondo had no authority or duty to advise plaintiffs and/or Gregory regarding other CPS investigations, if any, against other familes concerning the t1rst incident with plaintiff's daughter, (see Family Education Rights & Privacy Act, 20 U, C. Sec (g)), there is no allegation that defendant Arrendondo was aware that plaintiff's daughter even had a younger sibling who " at the time of the incident, was attending a different school than his sister (see CuffY v. City ofneyj1 York 69 NY2d 255). Any alleged failures on his part under Education Law Chapter that plaintifi appears to allege are not, ctionable under that statute since its effective date was after the assault on G-regory. Accordingly, the complaint against defendant Arrendondo, as well as defendants Wilkins and Di Filippis, is disamissed in its entirety. Finally, in addressing the motion by defendant Eileen Weissman, the only defendant against whom a notice of claim was filed albeit in April, 2004 over three years after the complained-of events, Ms. Weissman s motion is granted (Seq. #004). While Ms. W(;issman denies she had any involveme:nt in calls that may have been made to CPS concerning the incident with plaintiff's daughter or Gregory (a school social worker admits to reporting the Hrst incident to the central register as provided in the Social Services Law in February 1999 but states she has no knowledge of,my claim involving Gregory), the Court is bound to credit plaintiff's allegations for the purposes of this application.

5 TORAN v. HARTIN Index No '-- --N' '--NNN NNNNNNN-'_NNN ""NN Nevertheless, the parents' assertions against Ms. Weissman, as with defendant Arrendondo, are time barred under any legal theory (CPLR 3211 (a) (5); General Municipal Law Sections SO.e and-i; Education Law Sec. 3023). Plaintiffs' notice of claim was late (General Municipal Law Sec, 50-e (1) (a):; Education Law Sec. 3813), as was the commencement of this action (Education Law Sec (2-b); General MlU1icipal Law Sections 50. d and- (see, also, Pierson v. City of New York 56 NY2d 950). Moreover, any causes of action against Ms. Weissman not asserted in the notice of claim canot be added to the,complaint (Mazzili v. CityafNew Yurk 154 AD2d 355). Any remaining causes of action are those germaine to Gregory only. As noted above, the notice Cohn v. of claim was fi1.ed late without prior permission of the Court by an extension order (see Pearl River UPSD, supra). Accordingly, p aintiff' s failure of statutory compliance requires dismissal of the amended complaint in its entirety. Consequently, the Court does not reach any determination on the other objections madl on behalf of defendant Weissman, although the undersigned notes that the civil action reporting of sllspected child abuse to CPS generally entitles one to immunity fi-om Goldberg v. Edson 41 AD3d 428). (Social Service Law Sec. 419, June 28, cc: plaintiffs ENTERED JUL NASSAU COUNTY COUNTY CLERK' S OFFICE

Sklar v New York Hosp. Queens 2010 NY Slip Op 32312(U) August 16, 2010 Supreme Court, Nassau County Docket Number: 4146/10 Judge: Denise L.

Sklar v New York Hosp. Queens 2010 NY Slip Op 32312(U) August 16, 2010 Supreme Court, Nassau County Docket Number: 4146/10 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts