Preview
FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:05 PM INDEX NO. 063290/2014
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
______________________________________________________Ç
LOGAN RYAN, infant by KRISTEN RYAN, parent
and natural Guardian, and LOGAN RYAN, Index No.:63290/2014
Individually,
Plaintiff,
-against-
THREE VILLAGE CENTRAL SCHOOL DISTRICT,
And DON CAPPABIANCA,
Defendants.
____________________________________________________Ç
MEMORANDUM OF LAW IN SUPPORT OF CROSS-MOTION FOR LEAVE TO
AMEND THE BILL OF PARTICULARS
Respectfully submitted,
DELL & DEAN, PLLC
Attorne or Plaintiff
By:
Jay . Massaro
1225 Franldin Avenue - Suite 450
Garden City, NY 11530
P: 516-880-9700
F: 516-880-970
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TABLE Of
CONTENTS
PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND THE BILL OF
PARTICULARS TO ALLEGE STAUTORY & REGULATORY VIOLATIONS.............1
i
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PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND THE BILL OF
PARTICULARS TO ALLEGE STAUTORY & REGULATORY
VIOLATIONS.1
Pursuant to CPLR § 3025(b), "[A] party may amend his pleading...at any time by leave of
Court," just."
and leave to amend shall be freely given "upon such terms as may be See CPLR §
3025(b); see also, Romeo v. Arrigo, 254 AD2d 270 (2d Dept 1998). Leave to amend will
generally be granted as long as the opponent is not surprised or prejudiced by the proposed
amendment. Edenwald Contracting Co., v. City of New York, 60 NY2d 957 (1983); Paolano v.
Southside Hosp., 3 AD3d 524 (2d Dept 2004).
Correspondingly, "Motions for leave to amend or supplement bills of particulars
are governed by the same standards as those applying to motions to amend pleadings under
[b])."
CPLR §3025 (subd. NY CPLR §3042, Practice Commentary, Connors, Patrick, citing,
Cardy v. Frey, 86 AD2d 968 (4th Dept 1982). "It is well settled that courts will generally allow
amendments to pleadings and bills of particulars, even at or after trial,absent proof of actual
parties."
prejudice to the others Horowitz v. Nagamastsu, 103 AD2d 736 (2d Dept 1984). In
fact, "[t]here can be no prejudice or surprise where the amended complaint involves the same
transaction and set of facts as the original, such that the adverse party was fully apprised of the
transactions or events for which the movant claims liability. The fact that further discovery may
be necessary, or more time is expended to defend the new theory of recovery, does not warrant
complaint."
the denial of a motion to amend the 84 NY Jur 2d Pleading § 245.
1
To the extent relevant, Plaintiff incorporates all arguments from plaintiff's memorandym of law
defendants'
in opposition to motion in the within memorandum of law in support of plamtiff's
cross-motion.
1
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In Padin v. City of New York, 103 AD3d 614 (2d Dept 2013), the defendant moved for
summary judgment, and the plaintiff cross-moved to amend the complaint to add an allegation
that the defendant violated Gen. Mun Law §205-e. The Supreme Court granted the City's
motion for summary judgment, and denied plaintiff's cross-motion for leave to serve an amended
complaint. On appeal, the Second Department reversed. Padin held
"[The] Supreme Court improvidently exercised its discretion in
denying the plaintiff's cross motion for leave to serve the proposed
amended complaint. . . [A]nd there was no evidence that the
amendment, which merely added a new theory of recovery rather
than alleging new or different transactions or occurrences, would
defendants."
prejudice or surprise the
See, Sanders v. St. Vincent Hosp., 95 AD3d 1195, 1196 (2d Dept 2012)(granting cross-motion to
amend when cross-motion interposed after defendant's motion for summary judgment); Balsamo
v. City of New York, 287 AD2d 22, 27 (2d Dept 2001)("A plaintiff may serve a supplemental bill
of particulars, even without leave of court, to assert statutory violations which merely amplify his
or her theories of liability"); Orros v. Yick Ming Yip Realty, Inc., 258 AD2d 387, 388 (1st Dept
1999)("Plaintiff should have been permitted to file a supplemental bill of particulars with respect
defendants'
to alleged violations of statutes, ordinances, rules, and/or regulations, since these
amendments, which merely amplify and elaborate upon facts and theories already set forth in
liability.")1
the original bill of particulars, raise no new theory of
1In Accord, DElia v. City of New York, 81 AD3d 682, 684 (2d Dept 2011) (Overturning lower
court's denial of plaintiff's cross-motion to amend, and holding "Leave to amend the pleadings
to identify a specific, applicable Industrial Code provision may properly be granted, even after
the note of issue has been filed, where the plaintiff makes a showing of merit, and the
amendment involves no new factual allegations, raises no new theories of liability, and causes no
prejudice to the defendant"); Dowd v. City of New York, 40 AD3d 908, 912 (2d Dept 2007);
Foley v. City of New York, 43 AD3d 702, 704 (1st Dept 2007) (Granting plaintiff's cross-motion
2
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Here, 8 NYCRR 200.22(d)(3), titled Staff training, states "Staff who may be called upon
to implement emergency interventions shall be provided with appropriate training in safe and
effective restraint procedures in accordance with sections 100.2(1)(1)(i)(g) of this Title and
applicable."
200.15(h)(1) of this Part as As importantly, the school district never provided Mr.
Cappabianca with to how to restrain a student. (Cappabianca at 34:24-
any training pertaining
'how'
35:3.) The school never instructed Mr. Cappabianca on to restrain a student, or under what
circumstances he would restrain a student. (Id. at 42:5-10.) The school district offered no
training pertaining to restraining students. (Alexander at 14:25-16:17.) Clearly, the school
district violated the training requirements mandated by 8 NYCRR 200.22(d)(3).
Further, Educ. Law § 4806, titled Powers of superintendent and discipline of school,
states,
"the superintendent of the school shall. . . 2.Supervise and direct
the methods of instruction and the performance of duties by the
teachers, assistants and employees of such school. . . 4.
Prescribe rules for the government and discipline of the
pupils of the school and cause such rules to be enforced. . .6.
Give special attention to the proper instruction, detention,
restraint, discipline, comfort, physical and moral welfare of the
pupils of the school and perform such other duties as may be
required of him by the board of managers with a view of canying
article."
out the provisions of this
8 NYCRR § 19.5(b)(1) & (2), titled Prohibition of the use of aversive interventions,
states,
"No public school, BOCES. . . shallemploy the use of
aversive behavioral interventions to reduce or eliminate
maladaptive behaviors, except as provided pursuant to
section 200.22(e) and (f) of this Title. . . As used in this
section, aversive intervention means: an intervention that is
for leave to amend even though itwas interposed after a motion to dismiss); Noetzell v. Park
Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232 (1st Dept 2000).
3
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intended to induce pain or discomfort to a student for the
purpose of eliminating or reducing maladaptive
."
behaviors. .
8 NYCRR § 200.22(f)(vi) states that "the use of aversive interventions shall be limited to
those self-injurious or aggressive behaviors identified for such interventions on the student's
IEP."
8 NYCRR § 200.22(e)(10) states "Nothing in this section shall authorize the use of
parent."
aversive interventions without the informed written consent of the student's
8 NYCRR § 200.22(f)(4), titled Supervision and training requirements, states
"Aversive interventions shall be administered by appropriately
licensed professionals or certified special education teachers in
accordance with Part 80 of this Title and sections 200.6 and
200.7 of this Part or under the direct supervision and direct
observation of such staff.Training shall be provided on a
regular, but at least annual basis, which shall include, but not
be limited to, training on: (i)safe and therapeutic emergency
."
physical restraint interventions. .
Along with 8 NYCRR 200.22(d)(3), questions of fact exist regarding whether defendants
violated 8 NYCRR § 200.22(f)(4), 8 NYCRR § 200.22(e)(10), 8 NYCRR § 200.22(f)(vi), 8
NYCRR § 19.5(b)(1) & (2), Educ. Law § 4806,
In this matter, defendants will suffer no prejudice if plaintiff's cross-motion is
granted, and the bill of particulars is amended to allege violations of the above referenced
statutes/regulations. The amendment merely reflects code violations arising from the same
transaction that has been the subject of this litigation. Indeed, Mr. Capablanca's experience and
training has been a central component of this case throughout, and the improper use of
aversive/excessive force restraining techniques was always the focus of the within case.
4
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As such, Your Honor should grant plaintiff leave to serve an Amended Bill of
Particulars nunc pro tune. Attached as Plaintiff's Exhibit I is a copy of the proposed amended
Bill of Particulars.
Dated: Garden City, New York
October 27, 2022
Respectfully submitted,
DELL & DE C
Attorneys f lai
By:
Jay J. M. ssaro
1225 Franldin Avenue - Suite 450
Garden City, NY 11530
P: 516-880-9700
5
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Preview
FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:05 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ______________________________________________________Ç LOGAN RYAN, infant by KRISTEN RYAN, parent and natural Guardian, and LOGAN RYAN, Index No.:63290/2014 Individually, Plaintiff, -against- THREE VILLAGE CENTRAL SCHOOL DISTRICT, And DON CAPPABIANCA, Defendants. ____________________________________________________Ç MEMORANDUM OF LAW IN SUPPORT OF CROSS-MOTION FOR LEAVE TO AMEND THE BILL OF PARTICULARS Respectfully submitted, DELL & DEAN, PLLC Attorne or Plaintiff By: Jay . Massaro 1225 Franldin Avenue - Suite 450 Garden City, NY 11530 P: 516-880-9700 F: 516-880-970 1 of 7 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:05 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/01/2022 TABLE Of CONTENTS PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND THE BILL OF PARTICULARS TO ALLEGE STAUTORY & REGULATORY VIOLATIONS.............1 i 2 of 7 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:05 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/01/2022 PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND THE BILL OF PARTICULARS TO ALLEGE STAUTORY & REGULATORY VIOLATIONS.1 Pursuant to CPLR § 3025(b), "[A] party may amend his pleading...at any time by leave of Court," just." and leave to amend shall be freely given "upon such terms as may be See CPLR § 3025(b); see also, Romeo v. Arrigo, 254 AD2d 270 (2d Dept 1998). Leave to amend will generally be granted as long as the opponent is not surprised or prejudiced by the proposed amendment. Edenwald Contracting Co., v. City of New York, 60 NY2d 957 (1983); Paolano v. Southside Hosp., 3 AD3d 524 (2d Dept 2004). Correspondingly, "Motions for leave to amend or supplement bills of particulars are governed by the same standards as those applying to motions to amend pleadings under [b])." CPLR §3025 (subd. NY CPLR §3042, Practice Commentary, Connors, Patrick, citing, Cardy v. Frey, 86 AD2d 968 (4th Dept 1982). "It is well settled that courts will generally allow amendments to pleadings and bills of particulars, even at or after trial,absent proof of actual parties." prejudice to the others Horowitz v. Nagamastsu, 103 AD2d 736 (2d Dept 1984). In fact, "[t]here can be no prejudice or surprise where the amended complaint involves the same transaction and set of facts as the original, such that the adverse party was fully apprised of the transactions or events for which the movant claims liability. The fact that further discovery may be necessary, or more time is expended to defend the new theory of recovery, does not warrant complaint." the denial of a motion to amend the 84 NY Jur 2d Pleading § 245. 1 To the extent relevant, Plaintiff incorporates all arguments from plaintiff's memorandym of law defendants' in opposition to motion in the within memorandum of law in support of plamtiff's cross-motion. 1 3 of 7 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:05 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/01/2022 In Padin v. City of New York, 103 AD3d 614 (2d Dept 2013), the defendant moved for summary judgment, and the plaintiff cross-moved to amend the complaint to add an allegation that the defendant violated Gen. Mun Law §205-e. The Supreme Court granted the City's motion for summary judgment, and denied plaintiff's cross-motion for leave to serve an amended complaint. On appeal, the Second Department reversed. Padin held "[The] Supreme Court improvidently exercised its discretion in denying the plaintiff's cross motion for leave to serve the proposed amended complaint. . . [A]nd there was no evidence that the amendment, which merely added a new theory of recovery rather than alleging new or different transactions or occurrences, would defendants." prejudice or surprise the See, Sanders v. St. Vincent Hosp., 95 AD3d 1195, 1196 (2d Dept 2012)(granting cross-motion to amend when cross-motion interposed after defendant's motion for summary judgment); Balsamo v. City of New York, 287 AD2d 22, 27 (2d Dept 2001)("A plaintiff may serve a supplemental bill of particulars, even without leave of court, to assert statutory violations which merely amplify his or her theories of liability"); Orros v. Yick Ming Yip Realty, Inc., 258 AD2d 387, 388 (1st Dept 1999)("Plaintiff should have been permitted to file a supplemental bill of particulars with respect defendants' to alleged violations of statutes, ordinances, rules, and/or regulations, since these amendments, which merely amplify and elaborate upon facts and theories already set forth in liability.")1 the original bill of particulars, raise no new theory of 1In Accord, DElia v. City of New York, 81 AD3d 682, 684 (2d Dept 2011) (Overturning lower court's denial of plaintiff's cross-motion to amend, and holding "Leave to amend the pleadings to identify a specific, applicable Industrial Code provision may properly be granted, even after the note of issue has been filed, where the plaintiff makes a showing of merit, and the amendment involves no new factual allegations, raises no new theories of liability, and causes no prejudice to the defendant"); Dowd v. City of New York, 40 AD3d 908, 912 (2d Dept 2007); Foley v. City of New York, 43 AD3d 702, 704 (1st Dept 2007) (Granting plaintiff's cross-motion 2 4 of 7 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:05 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/01/2022 Here, 8 NYCRR 200.22(d)(3), titled Staff training, states "Staff who may be called upon to implement emergency interventions shall be provided with appropriate training in safe and effective restraint procedures in accordance with sections 100.2(1)(1)(i)(g) of this Title and applicable." 200.15(h)(1) of this Part as As importantly, the school district never provided Mr. Cappabianca with to how to restrain a student. (Cappabianca at 34:24- any training pertaining 'how' 35:3.) The school never instructed Mr. Cappabianca on to restrain a student, or under what circumstances he would restrain a student. (Id. at 42:5-10.) The school district offered no training pertaining to restraining students. (Alexander at 14:25-16:17.) Clearly, the school district violated the training requirements mandated by 8 NYCRR 200.22(d)(3). Further, Educ. Law § 4806, titled Powers of superintendent and discipline of school, states, "the superintendent of the school shall. . . 2.Supervise and direct the methods of instruction and the performance of duties by the teachers, assistants and employees of such school. . . 4. Prescribe rules for the government and discipline of the pupils of the school and cause such rules to be enforced. . .6. Give special attention to the proper instruction, detention, restraint, discipline, comfort, physical and moral welfare of the pupils of the school and perform such other duties as may be required of him by the board of managers with a view of canying article." out the provisions of this 8 NYCRR § 19.5(b)(1) & (2), titled Prohibition of the use of aversive interventions, states, "No public school, BOCES. . . shallemploy the use of aversive behavioral interventions to reduce or eliminate maladaptive behaviors, except as provided pursuant to section 200.22(e) and (f) of this Title. . . As used in this section, aversive intervention means: an intervention that is for leave to amend even though itwas interposed after a motion to dismiss); Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 232 (1st Dept 2000). 3 5 of 7 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:05 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/01/2022 intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive ." behaviors. . 8 NYCRR § 200.22(f)(vi) states that "the use of aversive interventions shall be limited to those self-injurious or aggressive behaviors identified for such interventions on the student's IEP." 8 NYCRR § 200.22(e)(10) states "Nothing in this section shall authorize the use of parent." aversive interventions without the informed written consent of the student's 8 NYCRR § 200.22(f)(4), titled Supervision and training requirements, states "Aversive interventions shall be administered by appropriately licensed professionals or certified special education teachers in accordance with Part 80 of this Title and sections 200.6 and 200.7 of this Part or under the direct supervision and direct observation of such staff.Training shall be provided on a regular, but at least annual basis, which shall include, but not be limited to, training on: (i)safe and therapeutic emergency ." physical restraint interventions. . Along with 8 NYCRR 200.22(d)(3), questions of fact exist regarding whether defendants violated 8 NYCRR § 200.22(f)(4), 8 NYCRR § 200.22(e)(10), 8 NYCRR § 200.22(f)(vi), 8 NYCRR § 19.5(b)(1) & (2), Educ. Law § 4806, In this matter, defendants will suffer no prejudice if plaintiff's cross-motion is granted, and the bill of particulars is amended to allege violations of the above referenced statutes/regulations. The amendment merely reflects code violations arising from the same transaction that has been the subject of this litigation. Indeed, Mr. Capablanca's experience and training has been a central component of this case throughout, and the improper use of aversive/excessive force restraining techniques was always the focus of the within case. 4 6 of 7 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:05 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 11/01/2022 As such, Your Honor should grant plaintiff leave to serve an Amended Bill of Particulars nunc pro tune. Attached as Plaintiff's Exhibit I is a copy of the proposed amended Bill of Particulars. Dated: Garden City, New York October 27, 2022 Respectfully submitted, DELL & DE C Attorneys f lai By: Jay J. M. ssaro 1225 Franldin Avenue - Suite 450 Garden City, NY 11530 P: 516-880-9700 5 7 of 7