In the Matter of Josephine Thomas, Appellant,v.New York City Department of Education, et al., Respondents.BriefN.Y.March 20, 2013To be Argued by: STUART LICHTEN New York County Clerk’s Index No. 100711/11 Court of Appeals of the State of New York In the Matter of the Application of JOSEPHINE THOMAS, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – NEW YORK CITY DEPARTMENT OF EDUCATION, CATHLEEN BLACK, as Chancellor of the New York City Department of Education and CITY OF NEW YORK, Respondents-Respondents. BRIEF FOR PETITIONER-APPELLANT LICHTEN & BRIGHT, P.C. Attorneys for Petitioner-Appellant 475 Park Avenue South, 17th Floor New York, New York 10016 Tel.: (646) 588-4872 Fax: (646) 588-4877 Date Completed: August 9, 2012 TABLE OF CONTENTS JURISDICTION . . . 2 QUESTION PRESENTED . 2 FACTS . . . . 2 LEGISLATIVE HISTORY 5 ARGUMENT . . . . . . 9 THOMAS IS ACCUSED OF ACTS ARISING OUT OF DISCIPLINE AND IS THEREFORE ENTITLED TO AN ATTORNEY PROVIDED BY THE CITY . . 9 A. Pr r Case aw B. "While in Within the of his Duties s Employment" . C. '''Aris out of Discipline" CONCLUSION 10 15 20 22 TABLE OF AUTHORITIES Blood v Board of Ed. of the City of New York, 121 A.D.2d 128, 509 N.Y.S.2d 530 (1st Dep't 1986). ........ ... 6 Board of Mgrs. Of Park Plo Condo. v. Town of Ramapo, 247 A.D.2d 537, 669 N.Y.S.2d 313 (2d Dep't 1998) .. Cromer v. City Seh. Dist. of Albany Bd. of Ed., 2002 WESTLAW . 13 1174683 (Sup. Ct., Albany Cty. Apr. 5, 2002) ......... 12 Cutler v. Poughkeepsie City Seh. Dist., 73 A.D.2d 967, 424 N.Y.S.2d 257 (2nd Dep't 1980) . . .. . ......... 11 DeWald v. Seidenberg, 297 N.Y. 335, 79 N.E.2d 430 (1948) ... 17 Hiekey v. New York City Dep't of Ed., 17 N.Y.3d 729, 929 N.Y.S.2d 1, 952 N.E.2d 993 (2011) . . . . . . . . . . . . 19 Holt v. Board of Ed. of the Webutuek Cent. Seh. Dist., 52 N.Y.2d 625, 439 N.Y.S.2d 839, 422 N.E.2d 499 (1981). Inglis v. Dundee Cent. Seh. Dist. Bd. of Ed., 180 Mise. 19 2d 156, 687 N.Y.S.2d 866 (Sup. Ct., Yates Cty. Mar. 1, 1999) . 4 Jones v. Weigand, 134 A.D. 644, 119 N.Y.S. 441 (2d Dep't 1909) 17 Joseph v. City of Buffalo, 83 N.Y.2d 141, 608 N.Y.S.2d 396, 629 N.E.2d 1354 (1994) .................... 15 Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 693 N.Y.S.2d 68, 715 N.E.2d 95 (1999) . . . . . . . . . . 18 Kosiba v. City of Syraeuse, 287 N.Y. 283, 39 N.E.2d 240 (1942) ..... . 16 Lundberg v. State of New York, 25 N.Y.2d 467, 306 N.Y.S.2d 947, 255 N.E.2d 177 (1969) . . . . . . .. . ..... 16 Martin v. Board of Ed. of the Seh. Dist. of the City of New York, 2011 WESTLAW 1527190 (Sup. Ct., N.Y. Cty. Apr. 12, 2011) . . . . . . . . . . . . . . . . . . . . . . . . .. . 4 i 2010 WESTLAW 3207006 {Sup. Ct., N.¥. Cty. Aug. 3, 2010} . . . • • • • • 4 Perez v. City of New York, 79 A.D.3d 835, 912 N.Y.S. 691 (2d Dep't 2010) ............... . 16 Prudential-Bache Securities, Inc. v. Citibank, N.A.,73 N.¥. 263, 539 N.Y.S. 699, 536 N.E.2d 1118 (1989) ......... 18 47 N.Y.2d 297, 418 N.¥.S.2d 300, 391 N.E.2d . . . . . . . . . . . . . . . . . 12 Index No. 350220/10 . Ct., Bx. Cty.) ... 3 Sagal-Cotler v. Board of Educ., 2010 WESTLAW 23905 ( . Ct., N.¥. Cty. . 22, 2010), rev'd, - A.D.3d , 946 N.Y.S. 121 (1st Dep't 2012) ............ . . . . . . . . . . . 3 Sims v. Bergamo, 3 N.¥.2d 351, 169 N.Y.S.2d 449, 147 N.E.2d 1 (1957) . . . . . . . . . . .. . ............. 17 Thomas v. New York City Dep't of Ed., - A.D.3d , 946 N.Y.S.2d 114 (1st 't 2012) 4 •••• 4 Timmerman v. Board of Ed. of the City Sch. Dist. of the 50 A.D.2d 592, 856 N.Y.S.2d 103 (1st 't 2008) .. 10 64 N.Y.2d 800, 486 N.¥.S.2d 918, 16 New York, 2010 WESTLAW 5576190 (Sup. Ct., N.Y. Cty. Dec. 10, 2010) ...................... . • 4 ii STATUS OF RELATED LITIGATION Robinson Rodriguez v. City of New York, New York City Department of Education, and Josephine Thomas, Index No. 350220/10 (Sup. Ct., Bx. Cty.), is presently in discovery, a compliance conference scheduled for September 25, 2012. iil COURT OF APPEALS STATE OF NEW YORK ----------------------------------------X In the Matter of ication of JOSEPHINE THOMAS, Petitione 1 Pursuant to Article 78 New York For a of the Law Rules, Index No. 100711/2011 t- NEW YORK CITY EDUCATION, Chancellor Department NEW YORK, OF as OF s-Respondents. ----------------------------------------x BRIEF FOR PETITIONER-APPELLANT Petitione llant Josephine Thomas ("Thomas" or .... petitioner" ) ts this brief in support of dismissal ion seeking to annul s- respondents' tion denying Thomas 1 and re attorney fees and Thomas, a ro sional for t- of the tion New York City of ion (" DOE") 23 rs, was sued for allegedly hitt a student during class. For over 50 DOE has prov 1 with lawyers in cases aris out discipline. statute mandating such t s continue in force, DOE directed to defend s. JURISDICTION Court s j et over s appeal from sion and Order of Appel Practice Law and § 5601(a) sion pursuant to Civil there was a dissent by two Justices on a tion of law. Whether Appel Division fessional was not "acting a DOE discharge of her duties" DOE Y hit a Thomas has assigned a mathematics son ? employed by DOE for 23 to work as a parapro in Bronx. R. 21. On or about 14, 2009, Robinson Rodri a student at P.S. 94, allegedly informed a on 11 f \.vrong hit R. 50. s never hit Pr of P.S. 94 conducted an as an a1 on of " a c sroom, she Since 2001, sional at P.S. 94 z ("Rodriguez"), counse class R. what punishment. 11 t R. 45. On May 21, 2009, the Principal placed a letter in 's pe file stat t the all tion that s 2 hit not iguez was " iated." R. 51. No ry charges were against rged, suspended, fined, or formal On or about May 15, 2010, Thomas recei 1, a of a Summons Complaint a rmal , and Thomas was imanded. , by United States I case capti of Education, and Josephine Thomas, Index No. 350220/10 (Sup. et., Bx. Cty.). R. 22. Complaint Thomas of tt z in class on or about May 11, 2009. R. 27-34. On or May 20, 2010, submitted to DOE a written Request r tion. R. 35. In a letter dated 14, 2010, was informed her request for legal representation was denied. No reason for al was of this Practice Law and Supreme Court, t 29, 2011, R. 36. On 19, 2011, pursuant to Article 78 of es. R. 19. viI a sion, Judgment, dated petit R. 6-18. Ac 1 t "law in this area is unsett " t Court t three cases' holding " only ground tion can by which legal s is if 1eged was not scope of t fS emp " Sagal-Cotler v. Board of Educ., 2010 WESTLAW 3823905 . Ct., N.Y. Cty. Sept. 22, 2010), rev'd, - A.D. -, 946 N.Y.S.2d 121 3 (1st Dep't 2012); Morel v. City of New York, 2010 WESTLAW 3207006 (Sup. Ct., N.Y. Cty. Aug. 3, 2010); Inglis v. Dundee Cent. Sch. Dist. Bd. of Ed., 180 Misc. 2d 156, 687 N.Y.S.2d 866 (Sup. Ct., Yates Cty. Mar. I, 1999), contrasted with two cases holding that respondents may deny legal representation "if the Corporation Counsel makes a rationally based determination that petitioner's conduct violated DOE's rules and regulations. " Martin v. Board of Ed. of the Sch. Dist. of the City of New York, 2011 WESTLAW 1527190 (Sup. Ct., N.Y. Cty. Apr. 12, 2011); Zampieron v. Board of Ed. of the Sch. Dist. of the City of New York, 2010 WESTLAW 5576190 (Sup. Ct., N.Y. Cty. Dec. 10, 2010). R. 13-14. Court then adopted the Martin/Zampieron analysis, and dismissed the petition. R. 14. On appeal, Appellate sion, First Department, affirmed on the ground that Thomas was not acting" the discharge of her duties." Thomas v. New York City Dep't of Ed., - A.D.3d - , 946 N.Y.S.2d 114, 116 (1st Dep't 2012). Two dissenting Justices found that "a board of education must defend and indemnify an employee in an action that arose from disciplinary action that the employee took against a student in the scope of the employee's employment," and that the majority's finding that Thomas was not acting in the discharge of her duties "defies common sense." Id., at 120 (Freedman, J., dissenting). This appeal followed. 4 LEGISLATIVE HISTORY hist of statut opments in s area is a reflection of the s ficant both the idence concomitant costs of litigat in American education. To s ci I servants being stated legal , the is over t expanded protect DOE employees expense of being named as ts. In 1947, the slature enacted Education Law Section 2560 ("Section 2560"), which ided t the of Education liabili to the extent that shall save .. the teaching or ing sta , or any act of the or without the such appointed . .... damages arising out of .. of cer school bui member of the or emp , ei thin , provided that .. .. .. teaching or supervis staff, of r, [or] .. .. .. at t were sustained duties and wi in the scharge of his of his employment Laws of New Yo , 1979 .. 673, at 1304-05. rteen rs later, Legis ture broadened this protection it enacted tion Law Section 3028, which its present states: Notwi inconsistent provision of general, spec ,or local law, .. .. .. each of education .. .... the state shall p de an attorney or at for, and pay s attorney's fees expenses necessarily incurred the de of a r .. .. .. or empl .. in any civi or action or proceeding sing out of inary action taken against pupil while di of ies within of his loyment .. 5 New York Education Law § 3028 ("Section 3028"). The statute was intended to "enable teachers, officials, and employees to be adequately represented in actions against them without being burdened by the cost of counsel and legal proceedings." Governor's Bill Jacket, 1960 Ch. 800, at 23, Report to the Governor from Compt. A. Levitt, dated Apr. 14, 1960. At the time of passage of Section 3028, the Legislature recognized, "In our schools, the classroom teacher is the first line of defense against juvenile delinquency." Governor's Bill Jacket, 1960 Ch. 800, at 19, Letter from Assemb. C. Henderson to Counsel, dated Apr. 13, 1960. The objective of Sections 2560 and 3028, taken together, is "saving imperfect and, therefore, fallible public employees from the potentially ruinous legal consequences following from unintentional lapses in the daily discharge of their duties." Blood v Board of Ed. of the City of New York, 121 A.D.2d 128, 132, 509 N.Y.S.2d 530, 533 (1st Dep't 1986). Section 3028 was enacted specifically to protect employees in Thomas's circumstances. "There are instances, of course, where a parent may bring a proceeding against a teacher where force was used," and there "are also instances where civil actions are brought against the teacher on the theory of assault," submitted the counsel for the New York State Education Department. Governor's Bill Jacket, 1960 Ch. 800, at 17. A teachers organization noted, 6 In some cases involving discipline, attorneys . . . bring charges of assault and battery against the teacher, and urance companies escape responsibility of defending the teacher on the basis of certain exclusions (in fine print) contained in their contracts. This bill is an attempt to close this loophole in the protection of teachers. Id., at 24. The Legislature intended that DOE employees accused of corporal punishment be defended under this statute. The passage of Section 3028 was the culmination of a hard- fought policy debate, led in large part by prominent figures from New York City. For example, the United Federation of Teachers, the New York City local of the public schoolteachers union, wrote, "We strongly favor adoption of [the bill]. The bill would provide some measure of protection for teachers who might be sued as a result of action taken by them in the line of duty." Governor's Bill Jacket, 1960 Ch. 800, at 11. The United Parents Associations of New York City, Inc., on the other hand, suggested that the bill was an example of "'open season' being declared on school pupils " Id., at 18. Representatives of New York City, as might be expected, played a key role in the passage of this legislation. In 1979, the Legislature amended Section 2560. The principal purpose of the 1979 amendments was to widen the applicability of representation and indemnification requirements. The sponsor of the bill explained, The purpose of the 11 is to indemnify all New York City employees against civil liabilities incurred 7 as a result proper performance of present t , City pol job. At teachers are no justification pro s so indemnif and to limit such on , firemen, seems to be to these It is r to subject City employees to ci 1 1 lity for dut performed within the legal scope ir employment and to them to perform their duties aggressively and zealously under circumstances. Governor's Bill , 1979 Ch. 673, at 6, Letter of Nicolosi to R. Brown, dated June 29, 1979. memorandum accompanying bill added that the would remove "the • V. of poss liabil ing over . . . all New York City publ employees . ... " Governor's Bill Jacket, 1979 3, at 7. 1979 bill amended Section 2560 so t these emp would now covered New York Gene Municipal Law Section 50-k ("Section 50-k"). Laws of New York, 1979 Ch. 673, at 1304 05. Section 50-k requires that the Ci "provide the defense an employee" any act where the employee was within scope of s public " not tion of any rule or tion 11 Gen. Mun. Lavl § 50-k (2) • A variety other statutes were or repea 1979, New York Educat Law § 6211; General Law §§ 50-a, 50-d, 50-j, 50-m; the New York y Health and tals Corporat Act; New York Charter § 5 ; and 8 the New York City Administrative Code § 642. Section 3028, which had existed side-by-side with Section 2560 for 19 years, was not amended. Preserving this statute was a conscious decision on the part of the Legislature. The New York State Law Revision Commission, in a Report to the Governor, had proposed amending Section 3028 Uto delete reference to defense, indemnification, and save harmless provisions" in civil cases, leaving only an entitlement to representation in criminal cases arising from discipline. Governor's Bill Jacket, 1979 Ch. 673, at 47, 53, Report of the Law Revision Commission to the Governor. If the Commission's suggestion had been adopted, of course, petitioner here could not rely upon Section 3028. But the Legislature rejected the recommendation, and Section 3028's protections remain. The trend over time, therefore, in the areas of defense and indemnification has been greater, not lesser, protection for public employees. The Legislature did not intend to jump backwards in 1979, and strip away defense and indemnification rights of DOE staff accused of acts arising out of discipline. ARGUMENT THOMAS IS ACCUSED OF ACTS ARISING OUT OF DISCIPLINE, AND IS THEREFORE ENTITLED TO AN ATTORNEY PROVIDED BY THE CITY For several decades, as a practical matter, defense of DOE employees was not a matter of dispute. In 1960, the Corporation 9 wrote, "At present the legal representation without incurring any additional procedure has proved satisfactory over complaint from either the persons tion." Governor's Bill Jacket, 1960 from Mayor R. Wagner to Gov. N. Rockefel at 2. That same year, it was "noted s enactment of Section 2560 of r had to pay one cent 's Office [DOE employees] City. This rs and without or the Board of . 800, at 6, Letter Apr. 18, 1960, s connect t ion Law no 11 Governor's 11 , 1960 Ch. 800, at 7, Letter from Pres. C. Silver, Board of the of New York, to Governor, r. 13, 1960. It is not clear what precipitated pol recent change in A. Prior Caselaw Before this case, and the Sagal-Cotler case same y, the First Department last ruled on t Timmerman v. Board of Ed. of the City Scb. Dist. of tbe City of 50 A. D. 2d 592, 856 N.Y.S. 103 ( 1st ' t 2008) .. In t case, a teacher sought reimbursement red in defense of criminal charges 1 t by two of his students. fl Id. , at 593, 856 N.Y.S. at 1031. The , llate court held, pursuant to Section 3028, s 10 "proceeding against petitioner clearly arose out of disciplinary actions that he took against pupils, respondents should reimburse petitioner for the attorneys' fees and expenses he incurred in defending himself." Id., at 593, 856 N.Y.S.2d, at 104 (citing Cutler v. Poughkeepsie City Sch. Dist., 73 A.D.2d 967, 424 N.Y.S.2d 257 (2nd Dep't 1980)). Following Timmerman, trial courts handling cases arising in the City of New York split on whether teachers and paraprofessionals in these circumstances must be defended by their employer against 1 lawsuits. Two cases held that DOE employees are entitled to legal representation. In one, the petitioner was a teacher who also served as boys basketball coach and athletic director. Morel, 2010 WESTLAW 3207006, at *1. A 14-year-old female student accused the petitioner of punching her while ushering the student out of the gym after a basketball game. Id., at *1-2. Supreme Court found that under Section 3028, the "only ground upon which representation can be refused is scope of employment." Id., at *4. After finding that removing students from the gym was "wi thin the scope of his duties as the School's basketball coach and athletic director," Supreme Court noted that the allegation appeared to suggest that the petitioner lost s temper "with a recalcitrant or disobeying student," an action the court held "foreseeable." Id., at *6. The petitioner was held ent led to legal representation. 11 Similarly, in Sagal-Cotler, a paraprofessional admittedly struck a student in the face to stop him from singing in an elevator. Supreme Court found the petitioner's conduct to have arisen from disciplinary action "within the scope of her employment or duties during the incident. H Id., at *3. Supreme Court, in both Sagal-Cotler and Morel, relied on Blood, a case in which the First Department held that a third-grade teacher who struck a student in the eye with a bookbag was acting within the scope of her employment. In that case, the First Department held: Surely, it is not so unusual an occurrence that a teacher loses her temper with her class. Indeed, displays of anger in the classroom cannot be regarded as other than natural and sometimes necessary incidents of a teacher's work. Nor can it be reasonably expected that a teacher's anger will always be well-gauged to the occasion and unaccompanied by impulsive behavior. Such behavior, although undesirable, is a generally foreseeable eventuality of teaching and, as such, must be deemed within the scope of a teacher's employment. 121 A.D.2d, at 131, 509 N.Y.S.2d, at 532 (citing Riviello v. Waldron, 47 N.Y.2d 297, 304, 418 N.Y.S.2d 300, 303, 391 N.E.2d 1278, 1282 (1979)); see also, Cromer v. City Sch. Dist. of Albany Bd. of Ed., 2002 WESTLAW 1174683 (Sup. Ct., Alb. Cty. Apr. 5, 2002) (physical education teacher entitled to representation and reimbursement in criminal case alleging that he assaulted student during class); Inglis, 180 Mise. 2d, at 157, 687 N.Y.S.2d, at 867 (music teacher who allegedly slapped student while playing piano entitled to reimbursement). 12 cases found that where an employee acted while the di where of duties within of her employment, 3028 cases, action against res representat Zampieron, arose out of discipline, and reimbursement. Decis a different two that Sect must meet "not in 50-k overruled Sect requirement in Sect ation of any rule or 3028, and that titioner 50-k that her act tion of [his or were agency /I Section 3028, question, or Section 3028 controls. course, does not , becomes whether Sect this 2560 s analysis turns on which statute is cons to be analysis, as more well as is more fic. Under analysis of fic because ssent below, " tively it appl tion Law § 3028 y to cIa s from disciplinary act taken against , whereas ion Law § 2560 and therein, York Ci of Educat wi J. , scope of their ssenting) (citing t Law § 3028 is fically Municipal Law § 50-k, as ly to all against New loyees that ar from acts t./I Thomas, at 120 (Freedman, 2010 WESTLAW 3823905, at *3 more specific statute, because it situations invol plinary action an education context/l) ( ing Board of Mgrs. of Park 13 PI. Condo. v. Town of Ramapo, 247 A.D.2d 537, 669 N.Y.S. 313 (2d 't 1998)); Morel, 2010 WESTLAW 3207006, at *4 (Section 3028 "is a GML 50 k(2) c statute, claims carves out an a teacher's di ion to act "). Section 3028, if appl to s's situation, fore governs. In tant case, Court found, "Upon tion Law § 3028 1 examination, it appears that tion Law § 2560 ... are inconsistent. However, upon c specif harmoni ion, " is apparent t tion Law § 2560 is more Section 3028 and two sections of law can be The motion court went on to say that "even if two statutes cannot be " Section 25 ta s precedence as "more the ta " confl issue (1st as 1 to ' t fic," cont to Morel and Sagal-Cotler, because ly appl s to New York schools." Court adopt fic statute later, more over sting and irreconcilably provision." R. 14. rst Department a appellate court which statute is fI 2012) . I rule t irmed here and reversed 5agal- Id that "we not address the more specific one and, hence, A.D.3d -, 946 N.Y.S.2d 121, 124 court held t s, by 1 ~~~~U~Ht, was not acting 14 discharge or furtherance of her duties as a school 11 946 N.Y.S. at 116. s conclusion ts a major detour from 1 B. Section 3028 res that a DOE employee ta disciplinary action "while in discharge fense and s duties within fication to scope of required. of s loyment" formulation, course, trac familiar " " test establi ious 1 ility on an r for the torts of an This Court described t test as the act was done while servant was his master's work." 47 N.Y. , at 302, 418 N.Y.S.2d, at 302, 418 N.Y.S. at 1281. Most appl tions of this standard assume t the phrase in the s of s ies wi scope of s " is to read r as a s requirement, t the shorthand concepts scharge of " and " loyment" are essenti synonymous. City of Buffalo, 83 N.Y.2d 141, 608 N.Y.S. 396, 629 N. E. 2d 1354 s duties and wi (19 ) (references to "in the the scope of s loyment, " the his r ts") ; 15 rmance of invol 11 and "in s employment," furtherance of N.Y. 800, 486 N.Y.S.2d 918, 476 N.E.2d 317 (1985) ( thin the of s employment the discharge of his duties"); 287 N.Y. 283, 39 N.E.2d 240 (1942) (" the discharge of s duties and S oyment"); tion Law § 3813 (2) tort by employee "act of S ies within of his rect of the board of education") . held, "An employee acts the scope of he is something furtherance of and where control, directly or is, or rectly, over the scope of notice of in the di"-" ................ , ..... and/or under , this Court s employment ies he owes to s be, exercis some 's activit 25 N.Y. 947, 950, 255 N.E.2d 177, 179 (1969) ( 467, 470, 306 N.Y.S.2d tations omit ); see s " also, Perez v. City of New York, 79 A.D.3d 835, 836, 912 N.Y.S.2d 691, 693 (2d Dep't 2010) (act within" of empl 11 where the "to carry out ring the empl 's business") (citations omit ) . First conventional test, there, broken it s , without citation of s that Thomas was incident two newly cting within in a 16 r, disas 1 o two separate without terms. of her sroom," but not" f the Court oyment discharge or rance of her as a school loyee" 01 a r's tion a sta rule. Thomas, 946 N.Y.S.2d, at 116. No ious appellate court appears to have this distinction between "scope of oyment" "di duties." Under the traditional ana is of scharge of duties," the employer liable even employees " it lings and perform y or otherwise in an authori manner." 47 N.Y.2d, at 302, 418 N.Y.S. ,at 302, 391 N.E.2d, at 1281. If the act was "while doing s master's work," it not matter what sregard instructions or from line of his (quoting 134 A.D. 644, 645, 119 N.Y.S. 441, 443 ( Dep' t 1 9) ) . Tortious acts, as long as "VVUU'I'..J..tted furtherance of 's bus S," result in carious liabili N.X. v. Cabrini Med. Ctr., N.Y. 247, 251, 739 N.Y.S.2d 348, 351, 765 N.E. 844, 847 (2002) (citation omitted). Intentional assaults can 1 thin of employment. 3 N.Y.2d 531, 534-35, 169 N.Y.S.2d 449, 450-51, 147 N.E.2d 1/ 2-3 (1957) ( strict 1 of responsible even where s duty or authori ) ; "goes 297 N.Y. 335, 337-38, 79 N.E.2d 430, 431-32 (1948). The crucial point is whether these acts occurred while doing the employer's business. 17 An employees r can only avoid 1 li "for the conduct of . . . totally employer's rests act entirely for their own or others' purposes." 73 N.Y.2d 263, 276, 539 N.Y.S. 699, 706, 536 N.E.2d 1118, 1125 (1989) (citations omitted) . employee must "departed from s ties for solely motives unre to the furtherance [employer's] business." 93 N.Y.2d 932, 933, 693 N.Y.S. , 68, 715 N.E.2d 95, 96 (1999) (tation tted). It motive for act, there , not whether the act any employer e, t determines r the act was discharge of the , s dut within the of employment). refore, as the dissent states, the majo ty's conclusion ,\ t ioner's act not occur while was acting of her duties lies common sense." Thomas, 946 N.Y.S. , at 116 (Freedman, J., dissenting). was teaching Rodr z tics to get consistent with the tea Id., at 121 (Freedman, Thomas t this child function. ies. J. , event occurred. R. 50. Her act of an task she was ass ssenting). Nobody s and to perform." that solely personal motives, unrelated to act was commi discharge of 18 The rst that in that case, t here distinguished on the ground as a result plinary because of the charges were " "no scipl act was on the ground there, id., at 117, no di "there is no mention as to whether the r was disciplined." Id., at 117-18. Section 3028 says nothing, r, about discipl statute's action against the employee as an exception to the rective the employer a defense. As shown , such scipline would not remove act from having been " scharge of Furthermore, although the Court discipl " no charges were appellate court added, "Signi chal disciplinary findings Thomas did file a written objection. not other sort of " , s ties." re, itioner was Id., at 117. The itioner failed to t her," even though at 118; R. 52. It is the First t had Hickey v. New York City Dep't of Ed., 17 N.Y.3d 729, 9 N.Y.S.2d I, 9 N.E. 993 2011); Holt v. Board N.Y.S. 839, 422 N.E.2d 499 (1 guilt or ~~H~~' which after a civil court, does not bear on under Section 3028. 19 52 N.Y.2d 625, 439 ). In event, s's I, to be adjudi issue of providing a C. "Arising out of Discipline" Respondents-re may contend t the awsuit inst does not arise out of discipl , because, as Court describes the accusation, "petit struck Id he got the legation is t him answer on a lesson." R. 15. Actually, R. 50. Some Id forehead with indicates was a "wrong thing" when he R. 50. The Appel e vision noted, 's inatten veness, aside from statement from a witness " not listening Ms. k her hand " . . . . t boy sa t he petitioner t only re to the ioner's br f, is a 946 N.Y.S.2d, at 117. It is not clear to the appellate court believes factfinders, tes, should k for the s other than to witnesses. ion notes t Thomas's statement contains "no cation student was not paying attention or that his or was a cause for di s Thomas denied Even the highly ,If but t should not be is tting Rodriguez at 1. R. ible ctual scenario by Court constitute "discipl as that term s been t in at *1 (paraprofess s (tea in elevator); r punched 14 cases. 2010 WESTLAW 3823905, struck student to from 2010 WESTLAW 3207006, at *1 d female s t while her 20 out at 157, after a baske assaulted student 7 N.Y.S.2d, at 8 1 ); Cromer, 2002 WESTLAW 1174683 ing class); 180 Mise. 2d, (teacher slapped student while ). If cases arise out of ine, then puni di discipl hiring a student in ass islature not be required to r own counsel to s r not lis t DOE emp the cons against dis tion is certainly out le expense of lined students' is led, all school employees who signi cant economic harm, se or monitor students will risk the Legis ture intended to t. plainly is one of the employees meant to be covered by Sect 3028. The City is ready a code in z's action Corporat Counsel as 1 would not t of respondents' Legislature's intent of sa " financial ional for 23 , and having Assistant on behalf of City significant cost. Only tion here carry out public empl s from "potentially Thomas, a tly compensated not to be ruined. 21 CONCLUSION For 1 of the above reasons, petiti lant ly requests the matter direct respondents- legal ion and attorney and expenses. Dated: New York, New York July 31, 2012 Judgment of Appellate Division be to grant tition, and to s to provide ioner-appellant petit her LICHTEN & BRIGHT, P.C. Stuart Lichten Attorneys for Petit r-Appellant 475 Seventh Avenue - 17th Floor New York, New York 10016 (646) 588-4872 22 STATE OF NEW YORK COUNTY OF NEW YORK ) ) ) ss.: AFFIDAVIT OF PERSONAL SERVICE I, , being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age and resides at the address shown above or at On deponent served the within: Brief for Petitioner-Appellant upon: MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE CITY OF NEW YORK Attorneys for Respondents-Respondents 100 Church Street New York, New York 10007 Tel.: (212) 788-1171 Fax: (212) 788-0367 the attorney(s) in this action by delivering 3 true copy(ies) thereof to said individual personally. Deponent knew the person so served to be the person mentioned and described in said papers as the Attorney(s) herein. Sworn to before me on MARIA MAISONET Notary Public State of New York No. 01MA6204360 Qualified in Bronx County Commission Expires Apr. 20, 2013 Job # 242679