New York Criminal Lawyer Blog
A complainant woman submits an application for an order of grant to leave to amend her complaint by bringing a sixth cause of action against a man and adding causes of action against him in negligence, negligent criminal representation and fraudulent concealment. She also submits an application for the modification of her cause of action against the principal of the school, adding another person as an additional opponent.
The opponents however oppose the applications and cross move it. They seek for an order to dismiss the complainant’s sex complaint in its entirety with prejudice, for the complainant’s failure to prove negligent misrepresentation, wrongful conduct or any other breach of duty on the part of the opponents. They also request the granting of an award of sanctions and/or attorneys fees for the complainant’s playful and merit less motion practice, as well as for the complainant’s unfounded, disciplinary, inappropriate and egregious statements made both by the complainant’s attorney and the complainants in their application. They also seek to deny the complainant’s motion to modify her complaint, as such application is without merit, improper and barred by the law.
The aforementioned action arises from the complainant’s alleged wrongful termination from her employment as a teacher in the school run by the man and other opponents. Sources revealed that the complainant worked at the said school as a remedial reading and social studies teacher for almost thirteen years.
The complainant contends that she was wrongfully terminated for the reason that she discussed a former male student’s publicized rape conviction, for giving warning to her female students against the said student and to tell their sisters and friends that they should stay away from the said male student because he was dangerous.
The principal of the school had previously held a staff meeting about the student’s arrest, at which time she claims to have told the teachers in attendance not to discuss the student’s personal record with other students, because he was still enrolled at their school and the matter was under investigation. The student subsequently withdrew from the school and was no longer their student when the complainant discussed the matter with her female students.
The complainant asserted that she was unaware of the said policy applied to the former students.
The complainant also insists that she was genuinely concerned for the safety of her students and only warned them to protect them from a sexual predator, as she believes she is statutorily required to do it.
The opponents however assert that the complainant violated the school principal’s directive regarding the confidentiality of the students’ records and prohibition against a teacher discussing another student’s private record with other students.
The opponents claimed that the reason listed for the complainant’s termination was non-compliance with a directive concerning a student’s privacy. The complainant states the grounds listed for her termination are making inappropriate statements to students, which would lead a future employer to question her judgment. She argues the printed basis for her termination is misleading and prevents her from obtaining alternative employment as a teacher in either public or private schools. The complainant challenged her termination and the school’s superintendent upheld the termination, while recognizing the complainants actions as well-intended, but violative of the school’s published directive.
With respect to the branches of the complainant’s application, the opponent correctly refers the court to a prior decision and order of the judge which dismissed the complainant’s case against the man and the school principal. The opponent’s correctly argue the application to the said final judgment of the court, bars future actions between the same parties on the same cause of action.
In response to the complainant’s argument to the effect they seek to add new causes of action arising out of the same event, the opponents argue that it is well-established once a claim is brought to final decision, 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.
It is noted that the complainant withdrew the portion of the request which sought to leave to add a cause of action against the man for fraudulent concealment. Therefore, the court denies that first branch of the opponent’s application with respect to the complainant’s request to add the negligence and negligent misrepresentation causes of action against the man, finding the complainant is precluded from bringing any additional claims based upon the same transaction or series of transactions, even if based upon different legal theories.
The third branch of the complainant’s application, which seeks leave to amend the complaint to add another person as an additional opponent, is denied by the court, there being no allegations to the effect her actions or failure to act went beyond her role as an agent or supervisor of the school.
The fourth branch of the complainant’s application, which seeks leave to amend the complaint to add a cause of action for tort, is also denied on the basis of claim preclusion and issue preclusion for all the reasons set forth. The complainant is referred to pages nine and ten of the judge’s order, wherein he specifically dismissed the cause of action grounded on the case tort. The complainant is also bound by such decision, having failed to either timely appeal the said order or move to renew or re-argue the same.
The opponent’s cross-motion for immediate decision without proceeding and the dismissal of the complainant’s complaint with prejudice is also denied. Based on records, the law provides in pertinent part that the motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court to direct judgment in favor of any party. Moreover, the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. Further, the complainant is entitled to every favorable inference relative to the factual allegations asserted under her negligent misrepresentation cause of action and the court is not prepared at the said juncture to determine the issues rose. Sources revealed that there are outstanding conflicting issues of fact which cannot be determined on papers.
With respect to the second branch of the opponent’s cross-motion, the trial courts stated that the court, in its discretion, may award to any party or attorney, in any civil action or proceeding, costs in the form of reimbursement for actual expenses reasonably acquired and reasonable attorney’s fees.
Consequently, together with the complainant’s disregard of the terms of the judge’s prior decision and order in the action, the court exercises its’ discretion in granting the opponent’s an award of attorney’s fees for their costs associated in having to respond to the complainant’s motion sequence 2 and in the preparation of the second and third branches of the opponent’s cross-motion, upon the submission of proper papers, on notice to the complainant, including a detailed affirmation of services, in accordance with the said order.
The complainant is further directed, in any future submissions in the said action, to refrain from including the names of any opponents which have already been dismissed from this action, pursuant to a prior order of the court.
It is never easy to provide sufficient protection or security for our family especially to our young ones. But, whenever you or one of your family members experience abuse, you can seek legal assistance from the Nassau County Criminal Lawyer. You can also hire our Nassau County Rape Attorney for rape related legal action. Simply visit or call Stephen Bilkis and Associates office near you.