Preview
FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------------------------------X
LOGAN RYAN, infant by KRISTEN RYAN, parent
and natural Guardian, and LOGAN RYAN,
Individually, Index #: 63290/2014
Plaintiffs,
defendants'
Response to
-against- statement of material facts &
Affirmation in Opposition &
THREE VILLAGE CENTRAL SCHOOL DISTRICT Affirmation in Support of
and DON CAPPABIANCA, Cross-Motion
Defendants.
------------------------------------------X
I,Jay J. Massaro, an attorney duly admltted to practice law before the Courts of the State
of New York, affirms the following under the penalties of perjury:
1. I am a partner at the firm DELL & DEAN, PLLC, the attorneys for the Plaintiff
LOGAN RYAN, infant by KRISTEN RYAN, parent and natural Guardian, and LOGAN RYAN,
Individually, in the above-entitled action, and I am fully familiar with the facts and
circumstances of this matter because of my personal involvement in the matter, a review of the
file maintained in my office, and my conversations with plaintiff. I am respectfully submitting
this affirmation in support of plaintiff's opposition to the motion for summary judgment brought
by defendants THREE VILLAGE CENTRAL SCHOOL DISTRICT and DON
CAPPABIANCA, (collectively 'defendants'). I am also submitting this affirmation in response
defendants'
to statement of material facts.
2. I also submitting this affirmation in support of plaintiff's cross-motion for leave to
serve an amended bill of particular adding allegations of violations of regulations/statute that
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arise from the same set of facts.
3. As background, on May 22, 2013, Logan Ryan was a 15-year-old special education
student at Ward Melville High School who got into a physical altercation with another student in
the cafeteria that involved the boys pushing each other and grappling on the ground. A short time
after the altercation commenced, defendant security guard DON CAPPABIANCA and other
guards stationed in the cafeteria came over. Upon reach the grappling boys, Mr. Cappabianca
jumped on the ground between the boys, while the other security ground did not jump on the
ground. on the Mr. Cappabianca slammed into Logan- who weighed a 140
By jumping ground,
pounds- him back and his head to hit the ground. Mr. Cappabianca and
knocking causing Then,
another security guard grabbed Logan by the wrists and throw him onto a cafeteria table.
Ultimately, Logan was pinned on the cafeteria table with his head hanging off the table. While
Loga was pinned on his back the cafeteria table, Mr. Cappabiacna was standing between his legs
with his body weight resting on Logan, and Mr. Cappabianca had Logan's right arm in an
outward position and was pulling itback while another security officer was holding Logan's left
shoulder. During this interaction, the school principal (Principal Baum) was present and
supervising. While Logan was pinned on the table, he was complaining that his right shoulder
'faking'
was in pain. Mr. Cappabianca thought Logan was and his complaints were insincere.
The day after the incident Logan went to a physician who diagnosed a probable dislocation of the
right shoulder, a strain of the left shoulder, facial cuts above the left eye, and a strain injury to his
'combatants.'
neck. Mr. Cappabianca labels students involved in altercations as His definition of
'restraining'
includes use of a gun to restrain. He freely admits that on the date of incident he
utilized no approved restraining methodology or technique to restrain Logan. With these facts,
defendants'
and for the reasons stated in plaintiff's memorandum of law, motion should be
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denied.
4. Further, itwas 10 years prior to the date of incident when Mr. Cappabianca last restrained
a person similar to how he was Logan Ryan on the date of incident. (Id. at 139:25-
restraining
140:5.) The date of incident was the firsttime that Mr. Cappabianca broke up a fight in the
school. (Id. at 50:7-10.) Logan Ryan was the first person under the age of 18 that Mr.
Cappabianca ever restrained. (Id. at 37:12-16.) Prior to May 22, 201, the last time Mr.
Cappabianca restrained a person was when he was working as a special agent. (Id. at 35:4-8.)
As importantly, the school district never provided Mr. Cappabianca with any training pertaining
to how to restrain a student. (Cappabianca at 34:24-35:3.) The school never instructed Mr.
'how'
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.) Notably, 8 NYCRR 200.22(d)(3), titled Staff training,
states "Staff who may be called upon to implement emergency interventions shall be provided
procedures,"
with appropriate training in safe and effective restraint and here itis unrefuted that
the officers were not trained in proper restraint procedures. As plaintiff's cross-
security such,
motion for leave to serve an Amended Bill of Particular to allege statutory violations that reflect
the facts as the case should be granted.
5. The following exhibits are attached hereto:
Exhibit A- Affidavit of Michael Salitore Ed.D.
Exhibit B- Second & Third Supplemental Bill of Particulars
Exhibit C- Defendant's expert disclosure and report of orthopedist B. M.D.
Craig Ordway,
Exhibit D- Plaintiff's 2015 photographs of the
January 8, Discovery Response, containing
incident, including a photograph of defendant Cappabianca standing over plaintiff and grinning
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at him.
Exhibit E- 2013 that Logan Ryan's actions on the date of incident were
May 29, indicating
related to his disability.
Exhibit F- Excerpts of plaintiff's education records.
Exhibit G- Deposition of Dawn Alexander
Exhibit H- Deposition of Heather Salas-Selg
Exhibit I- Proposed Amended Bill of Particulars.
DEFENDANTS'
RESPONSE TO STATEMENT OF UNDIPSUTED MATERIAL
FACTS
UNDISPUTED FACTS:
Paragraph Numbers:
2,3,9,12,14,15,16,21,22,33,34,35,36,44,47
DISPUTED FACTS:
Paragraphs Numbers:
Paragraph 1-
Disputed. After being told what Daniel said, on May 2211d, Logan then went up to Daniel
in the cafeteria and asked Daniel if he stated that he would beat up Logan in school, and Daniel
responded yes. (50h at 26.) Upon that, a fight/physical exchange between Logan and Daniel
'fight'
broke out. (50h at 27-28.) The was pushing and shoving, and then Logan ended up on the
ground. (50h at 28.) Logan does not recall if either he or Daniel threw a punch. (50h at 28-29.)
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The physical exchange lasted a few seconds, and "as soon as it stopped being a verbal fight, it
seconds."
was over within (50h at 29.)
hearing'
Further, a 'manifestation is held when there is a superintendent's hearing to
determine whether or not a student's disability is a cause of whatever the student allegedly did.
(Baum at 12:24-13:3.) Logan's actions on the date of incident were concluded to be caused by
his disability. (Id. at 13:12-14:16.)
Paragraph 4-
Disputed. See Response to #1. Further, on May 22, 2013, Daniel advised another boy
that Daniel would beat up Logan in school, and minutes later a fight between Daniel and Logan
occurred. (50h at 14.)
Paragraph 5-
'unilateral'
Disputed to the extent the fact states in that the boy who told plaintiff about
Daniel's threats also did not advise defendants. Plaintiff admits that once plaintiff was told about
Daniel's threats that plaintiff did not immediately advise defendants.
Paragraph 6 & 7& 8-
Disputed. See Response to #1.
Paragraph 10-
Disputed. Logan does not recall if either he or Daniel threw a punch. (50h at 28-29.) The
physical exchange lasted a few seconds, and "as soon as it stopped being a verbal fight, itwas
seconds."
over within (50h at 29.)
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Paragraph 11-
'fighting.'
Disputed to the extent that itis unclear what is meant by Plaintiff admits that
'fight'
Logan and Daniel landed on the floor. The was pushing and shoving, and then Logan
ended up on the ground. (50h at 28.)
Paragraph 13-
Disputed. Plaintiff explicitly testified that he did not dislocate his shoulder during the
altercation with Daniel. Plaintiff testified
Q: When he tackled you onto the ground, do you know what
part of your body hit the ground first?
A: My head.
Q: At that point after he tacked you, did you fell any pain in
your right shoulder?
A: No.
Q: Do you know whether you had dislocated your right
shoulder at that point?
A: No.
Q: Did you dislocate your right shoulder at that point?
A: No. (6/7/16 Ryan Ebt at 69:18-70:6 )
Paragraph 17-20-
Disputed. Evidence cited does not support the fact alleged. Moreover, the physical
exchange lasted a few seconds, and "as soon as it stopped being a verbal fight, itwas over within
seconds."
(50h at 29.)
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Paragraph 23-
away,"
Disputed. "As the other combatant moved Mr. Cappabianca grabbed one of
Logan's wrists, and Security Guard Joe Fortunato grabbed the other, and that is how they got
Logan up off the floor. (Cabbabianca at 70:9-23.) Logan was not able to break free of grips of
Mr. Cappabianca and Security Guard Fortunato. (Id. at 78.)
Paragraph 24-
Disputed. The cited evidence does not match the fact. The cited evidence indicates that
the guards instead of walking out plaintiff placed him on a table.
Paragraph 25-
Disputed. Mr. Cappabianca testified he was never scared. (Id. at 119:24-25.) Mr.
Cappabianca testified that once Logan was brought over to the table, he was unsuccessful in
making any sort of offensive contact with Mr. Cappabianca (Id. at 117:25-118:8), and this was
the period of time that Mr. Cappabianca was standing between Logan's legs as he was pulling
Logan's shoulder back. He also testified that when bringing/moving Logan over to the table that
Logan was unable to break free of his and Security Officer Fortunato's grip of his wrists, and at
officers'
no point in time was Logan ever able to break free of the grips of his wrists. (Id. at
70:9-23; 78; 108:21-109:10.)
Plaintiff does admit that as Mr. Cappabianca was assaulting and hurting plaintiff that
plaintiff cursed at him and threatened him.
Paragraph 26-
Disputed. The evidence does not support the fact alleged.
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Paragraph 27-
Disputed. It isunclear what period of time the fact is referring to, including whether the
fact is referring to prior to or after Mr. Cappabianca dislocated Logan's right shoulder.
Paragraph 28-
'unmanageable' 'danger'
Disputed. It isunclear what and means. It isunclear what
period of time the fact is referring to, including whether the fact is referring to prior to or after
Mr. Cappabianca dislocated Logan's right shoulder.
Paragraph 29-
Disputed. Mr. Cappabianca testified he was never scared. (Id.at 119:24-25.) Mr.
Cappabianca testified that once Logan was brought over to the table, he was unsuccessful in
making any sort of offensive contact with Mr. Cappabianca (Id. at 117:25-118:8), and this was
the period of time that Mr. Cappabianca was standing between Logan's legs as he was pulling
Logan's shoulder back. He also testified that when bringing/moving Logan over to the table that
Logan was unable to break free of his and Security Officer Fortunato's grip of his wrists, and at
officers'
no point in time was Logan ever able to break free of the grips of his wrists. (Id. at
70:9-23; 78; 108:21-109:10.)
Paragraph 30-
'unmanageable' 'danger'
Disputed. It isunclear what and means. It isunclear what
period of time the fact is referring to, including whether the fact is referring to prior to or after
Mr. Cappabianca dislocated Logan's right shoulder. See also, Response to #29.
Paragraph 31-
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Disputed. Cappabianca testified that once Logan was brought over to the table, he was
unsuccessful in sort of offensive contact with Mr. Cappabianca (Id. at 117:25-
making any
118:8), and this was the period of time that Mr. Cappabianca was standing between Logan's legs
as he was pulling Logan's shoulder back. He also testified that when bringing/moving Logan
over to the table that Logan was unable to break free of his and Security Officer Fortunato's grip
officers'
of his wrists, and at no point in time was Logan ever able to break free of the grips of
his wrists. (Id. at 70:9-23; 78; 108:21-109:10.)
Consequently, Logan was able to be removed at any time but was not.
Paragraph 37-
Disputed. It was 10 years prior to the date of incident when Mr. Cappabianca last
restrained a person similar to how he was restraining Logan Ryan on the date of incident.
(Cappabianca at 139:25-140:5.) The date of incident was the first time that Mr. Cappabianca
broke up a fight in the school. (Id. at 50:7-10.) Logan Ryan was the first person under the age of
18 that Mr. Cappabianca ever restrained. (Id. at 37:12-16.) Prior to May 22, 201, the last time
Mr. Cappabianca restrained a person was when he was as a special agent. (Id. at 35:4-
working
8.)
As critically, the school district never provided Mr. Cappabianca with any training
pertaining to how to restrain a student. (Cappabianca at 34:24-35:3.) The school never instructed
'how'
Mr. Cappabianca on to restrain a student, or under what circumstances he would restrain a
student. (Id. at 42:5-10.)
Paragraph 38-
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Disputed. Mr. Cappabiana injured Logan Ryan. Plaintiff does admit that prior to May 22, 201,
the last time Mr. Cappabianca restrained a person was when he was working as a special agent.
(Cappabianca at 35:4-8.)
Paragraph 39-
Disputed. The fact is a legalproposition related to causation and/or hypothetical question not
fitting for a statement of facts.
Paragraph 40-
Disputed. See Response to #30.
Paragraph 41-
Disputed. During the incident, Mr. Cappabianca was never scared. (Cappabianca at 119:24-25.)
Paragraph 42-
Disputed only to the extent that Mr. Cappabianca was trained nothing in regard to student and/or
moving students. However, plaintiff does admit that Mr. Cappabianca was well aware of methods that
inflict pain.
Paragraph 43-
Disputed. This is a legalconclusion not fitting for a statement of fact. Further, Mr. Cappabianca
used excessive force. (See Plaintiff'sMemorandum of Law.)
Paragraph 45-
Disputed. It isunclear what period of time the fact is referring to, including whether the
fact is referring to prior to or after Mr. Cappabianca dislocated Logan's right shoulder.
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Paragraph 46-
Disputed. After Mr. Cappabianca dislocated Logan's right shoulder and used excessive
force on Logan, Logan was in fact released and no one was at risk.
Paragraph 48-
Disputed. The fact really states a legal conclusion. Moreover, the security guards used
done.'
excessive force, and plaintiff disputes that excessive force Ieeded to be
Paragraph 49-
Disputed. The notice of claim alleges that defendants failed "to properly investigate
and/or evaluate the results of any investigation of those persons. . . employees hired to operate,
."
manage, control, supervise teach at and/or run said School. .
Paragraph 49-
Disputed. Plaintiff alleged that Logan sustained severe permanent personal injuries, the
full extent of which was not presently known, including for pain and suffering, loss of quality
and/or enjoyment of life, and all other damages in which Logan was entitled to assert by case law
or statute.
PLAINTIFF'S STATEMENT OF ADDITIONAL FACTS
of deposition of Logan Ryan taken on June 2020 and Logan Ryan's 50-
Summary 5,
h taken on March 20, 2014.
1. At the time of his March 20, 2014 50-h hearing, Logan Ryan was taking medications for
depression and bipolar disorder. (See, Logan Ryan's 50h (hereinafter '50h at. . .')at 6 attached
as defendant's Exhibit F.)
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2. On May 22, 2013, Logan was 5 feet, 7 inches tall, and weighed 140 pounds. (50h at 6.)
3. On May 22, 2013, Logan was fifteen years old. (6/5/2020 Logan Ryan Ebt (hereinafter
.' defendants'
'6/5/20 Ryan at.. at 5 attached as Exhibit G; 50h at 49.)
10th
4. On May 22, 2013, Logan was in grade at the Ward Melville High School. (6/5/20
Ryan at 12.)
5. From ages 9 to 13, Logan was physically abused by his father. (6/5/20 Ryan at 23-27.)
6. Logan's father tried to sexually assault Logan. (6/5/20 Ryan at 33.)
7. From ages of 5 and 6, Logan was sexually assaulted by his uncle/ father's brother.
(6/5/20 Ryan at 34:8-37:22.)
8. Along with the occasions of sexual assault, Logan's uncle raped him. (6/5/20 Ryan at
38:2-17.)
9. After the episodes of child abuse, Logan lashed out in the sense that if he got angry then
he got angry toward himself. (6/5/20 Ryan at 67:22-68:12.)
10. As of May 22, 2013, Logan was receiving psychiatric counseling. (6/5/20 Ryan at 17.)
11. Since 2002 or 2003, Logan received psychiatric counseling. (6/5/20 Ryan at 17-21.)
12. Prior to May 22, 2013, Logan treated with a school psychologist/social worker. (6/5/20
Ryan at 68:16-69:15.)
13. Prior to May 22, 2013, Logan's school psychologist/social worker provided
guidance/treatment regarding how to deal with his prior history of sexual assault/rape. (50h at
57:12-24.)
14. Regarding the school, Logan was aware that 2-3 security guards were stationed at the
cafeteria doors. (50h at 19.)
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15. Logan was aware that some of the security guards were retired police officers. (50h at
21.)
16. Prior to May 22, 2013, and for approximately two months, Daniel Catalina was advising
other children that he could beat up Logan. (50h at 12-13.)
17. Prior to May 22, 2013, Logan and Daniel Catalina never had gotten into a physical
altercation. (50h at 12.)
18. On May 22 2013, Daniel advised another boy that Daniel would beat up Logan in school,
and minutes later a fight between Daniel and Logan occurred. (50h at 14.)
19. After being told what Daniel said, on May 22nd, Logan then went up to Daniel in the
cafeteria and asked Daniel if he stated that he would beat up Logan in school, and Daniel
responded yes. (50h at 26.)
20. Upon a fight/physical exchange between Logan and Daniel broke out. (50h at 27-
that,
28.)
'fight'
21. The was pushing and shoving, and then Logan ended up on the ground. (50h at
28.)
22. Logan does not recall if either he or Daniel threw a punch. (50h at 28-29.)
23. The physical exchange lasted a few seconds, and "as soon as it stopped being a verbal
seconds."
fight, itwas over within (50h at 29.)
24. In terms of how the physical fight ended, Logan testified "all I know is that I was put
onto the floor and then I look up and there was a security guard on top of me. I was hit back
ground."
onto the floor, my head hitting the (50h at 29:24-30:4.)
25. Logan was on the floor prior to the security guard arriving, but Logan had not struck his
head against the ground until after the security guard arrived. (50h at 30:9-13.)
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26. Upon the security guard arriving, the guard "put his body weight on top of me and my
whole body- I was myself with hands and whole just went right back on
pushing up my my body
ground."
the floor and my head hit the (50h at 30:15-22.)
27. After hitting his head, Logan was still on the ground, and the security guard was still
laying on top of him grabbing Logan by the legs, and then multiple other security guards grabbed
Logan by his arm and body. (50h at 32:5-12.)
28. Daniel was rushed out of the cafeteria by another security guard. (50h at 32.)
table"
29. Logan picked himself up off the ground, and then he "was brought down onto the
that was right next to him. (50h at 32-33.)
down" 33-
30. Logan was "slammed back on the table, with his back hitting the table. (50h at
34.)
31. Once Logan was slammed down on the table, one security guard was behind him holding
down his shoulders; another security guard was positioned between his legs over him holding his
chest down; and another security guard was holding him by the arm. (50h at 34.)
32. The security guard positioned between Logan's legs was laying on top of him. (50h at
34.)
forever,"
33. Although "itfelt like Logan estimated that he was pinned on the table for 8 to
10 minutes. (50h at 35.)
34. Logan was asked if he tried to kick out his legs while pinned on the table, and he testified
spread," kick."
that his legs "were full and he "couldn't (50h at 36.)
35. While pinned on the table, Principal Alan Baum arrived at the scene. (50h at 37.)
36. Principal Baum was trying to calm Logan down by rubbing his hand on his stomach. (50h
at 37-38.)
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'begged'
37. While pinned on the table, Logan them to bring him to a different room because
he did not want to be seen by his classmates, and at that point the security officers picked him up
off the table for approximately two seconds but then for some reason unknown to him slammed
him down on his stomach again. (50h at 38.)
38. During the 8 to 10 minutes of being pinned on the table, Logan used profanity and
kill' face.' 39-
'threatened to security officer Don Cappabianca, 'who was smiling in my (50h at
40.)¹
39. Prior to the incident, Logan did not know who Mr. Capabianca was. (50h at 40.)
40. Logan never struck any of the security guards. (50h at 40.)
41. Logan never threatened to headbutt a security guard. (50h at 41.)
42. Logan did not drink any alcohol on the date of incident. (50h at 49.)
43. While being pinned on the table, Logan complained to the guards that they were
dislocating his left shoulder. (50h at 48.)
44. While being pinned on the table, Logan tried to keep picking his body up off the table.
(50h at 49.)
45. Eventually, Logan was brought into a teacher's conference room that was approximately
30-40 feet away from the cafeteria. (50h at 51-52.)
46. While in the teacher's conference room, Logan was supervised by one of the security
side,'
guards that was 'on the nicer and said guard helped Logan put his left shoulder back in the
socket. (50h at 52:12-14.)
1
Attached as part of Exhibit D are photographs of the incident, including a photograph of Mr.
Cappabianca standing over plaintiff and grinning at him.
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47. Eventually, an EMT evaluated Logan to make sure that Logan did not need stitches
above his left eye. (50h at 54.)
48. After the date of incident, Logan went to see Dr. Pena regarding complaints related to the
shoulder. (50h at 59-60.)
49. Approximately two days after the incident, Logan started a conversation with Daniel
Catalina, and the two boys closed out any tension between the two of them. (50h at 66.)
50. During the altercation with the guards, Logan did not lose consciousness, but he did black
out. (50h at 54.)
51. Regarding the incident, Logan eventually advised his mother
Q: What did you tellher?
A: Just that there was fight and that the security guards held
me down and that itjust was affecting me mentally.
Q: In what why was it affecting you mentally?
A: I was sexually assaulted between ages of five and six
and- uncle and the of men on of me did not
by my group top
help that situation.
Q: You okay?
A: Yeah, I'm fine. (50h at 56:22-57:7.)
52. A series of photographs depicting Logan being held by the security guards were placed
on Facebook. (50h at 42-43.)
53. After the May 22, 2013 incident, Logan became very depressed and suicidal because "it
was almost reliving of the childhood, if you look at those pictures and what not. So the
year." 93:15-
depression really was very hard that summer leading into that next (6/5/20 Ryan at
21.)
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Summary of deposition of Security Guard Don Cappabianca.
54. Since September 2008, Mr. Don Cappabianca has been a security guard employed by
Defendants'
Three Village Center School District. (Cappabianca at 7-8 attached as Exhibit K.)
55. Mr. Cappabianca works at Ward Melville High School. (Id. at 10.)
56. The date of incident was the first time that Mr. Cappabianca ever worked the 10 am to 6
pm shift.(Id. at 16:24-17:4.)
57. Prior to working in the school, Mr. Cappabianca was a contract investor for the United
States Custom Service. (Id. at 20.)
58. Prior to being a contractor investigator for United States Custom Service, Mr.
Cappabianca was a criminal investigator/special agent for twenty-seven years for the United
States Custom Service investigating drug smugglers. (Id. at 21-22.)
59. While working for the US Custom Service investigating drug smugglers, Mr.
Cappabianca made many arrests and restrained suspects in the sense "a guy's running, you grab
."
him, you put him in
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FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------X LOGAN RYAN, infant by KRISTEN RYAN, parent and natural Guardian, and LOGAN RYAN, Individually, Index #: 63290/2014 Plaintiffs, defendants' Response to -against- statement of material facts & Affirmation in Opposition & THREE VILLAGE CENTRAL SCHOOL DISTRICT Affirmation in Support of and DON CAPPABIANCA, Cross-Motion Defendants. ------------------------------------------X I,Jay J. Massaro, an attorney duly admltted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am a partner at the firm DELL & DEAN, PLLC, the attorneys for the Plaintiff LOGAN RYAN, infant by KRISTEN RYAN, parent and natural Guardian, and LOGAN RYAN, Individually, in the above-entitled action, and I am fully familiar with the facts and circumstances of this matter because of my personal involvement in the matter, a review of the file maintained in my office, and my conversations with plaintiff. I am respectfully submitting this affirmation in support of plaintiff's opposition to the motion for summary judgment brought by defendants THREE VILLAGE CENTRAL SCHOOL DISTRICT and DON CAPPABIANCA, (collectively 'defendants'). I am also submitting this affirmation in response defendants' to statement of material facts. 2. I also submitting this affirmation in support of plaintiff's cross-motion for leave to serve an amended bill of particular adding allegations of violations of regulations/statute that 1 1 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 arise from the same set of facts. 3. As background, on May 22, 2013, Logan Ryan was a 15-year-old special education student at Ward Melville High School who got into a physical altercation with another student in the cafeteria that involved the boys pushing each other and grappling on the ground. A short time after the altercation commenced, defendant security guard DON CAPPABIANCA and other guards stationed in the cafeteria came over. Upon reach the grappling boys, Mr. Cappabianca jumped on the ground between the boys, while the other security ground did not jump on the ground. on the Mr. Cappabianca slammed into Logan- who weighed a 140 By jumping ground, pounds- him back and his head to hit the ground. Mr. Cappabianca and knocking causing Then, another security guard grabbed Logan by the wrists and throw him onto a cafeteria table. Ultimately, Logan was pinned on the cafeteria table with his head hanging off the table. While Loga was pinned on his back the cafeteria table, Mr. Cappabiacna was standing between his legs with his body weight resting on Logan, and Mr. Cappabianca had Logan's right arm in an outward position and was pulling itback while another security officer was holding Logan's left shoulder. During this interaction, the school principal (Principal Baum) was present and supervising. While Logan was pinned on the table, he was complaining that his right shoulder 'faking' was in pain. Mr. Cappabianca thought Logan was and his complaints were insincere. The day after the incident Logan went to a physician who diagnosed a probable dislocation of the right shoulder, a strain of the left shoulder, facial cuts above the left eye, and a strain injury to his 'combatants.' neck. Mr. Cappabianca labels students involved in altercations as His definition of 'restraining' includes use of a gun to restrain. He freely admits that on the date of incident he utilized no approved restraining methodology or technique to restrain Logan. With these facts, defendants' and for the reasons stated in plaintiff's memorandum of law, motion should be 2 2 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 denied. 4. Further, itwas 10 years prior to the date of incident when Mr. Cappabianca last restrained a person similar to how he was Logan Ryan on the date of incident. (Id. at 139:25- restraining 140:5.) The date of incident was the firsttime that Mr. Cappabianca broke up a fight in the school. (Id. at 50:7-10.) Logan Ryan was the first person under the age of 18 that Mr. Cappabianca ever restrained. (Id. at 37:12-16.) Prior to May 22, 201, the last time Mr. Cappabianca restrained a person was when he was working as a special agent. (Id. at 35:4-8.) As importantly, the school district never provided Mr. Cappabianca with any training pertaining to how to restrain a student. (Cappabianca at 34:24-35:3.) The school never instructed Mr. 'how' 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.) Notably, 8 NYCRR 200.22(d)(3), titled Staff training, states "Staff who may be called upon to implement emergency interventions shall be provided procedures," with appropriate training in safe and effective restraint and here itis unrefuted that the officers were not trained in proper restraint procedures. As plaintiff's cross- security such, motion for leave to serve an Amended Bill of Particular to allege statutory violations that reflect the facts as the case should be granted. 5. The following exhibits are attached hereto: Exhibit A- Affidavit of Michael Salitore Ed.D. Exhibit B- Second & Third Supplemental Bill of Particulars Exhibit C- Defendant's expert disclosure and report of orthopedist B. M.D. Craig Ordway, Exhibit D- Plaintiff's 2015 photographs of the January 8, Discovery Response, containing incident, including a photograph of defendant Cappabianca standing over plaintiff and grinning 3 3 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 at him. Exhibit E- 2013 that Logan Ryan's actions on the date of incident were May 29, indicating related to his disability. Exhibit F- Excerpts of plaintiff's education records. Exhibit G- Deposition of Dawn Alexander Exhibit H- Deposition of Heather Salas-Selg Exhibit I- Proposed Amended Bill of Particulars. DEFENDANTS' RESPONSE TO STATEMENT OF UNDIPSUTED MATERIAL FACTS UNDISPUTED FACTS: Paragraph Numbers: 2,3,9,12,14,15,16,21,22,33,34,35,36,44,47 DISPUTED FACTS: Paragraphs Numbers: Paragraph 1- Disputed. After being told what Daniel said, on May 2211d, Logan then went up to Daniel in the cafeteria and asked Daniel if he stated that he would beat up Logan in school, and Daniel responded yes. (50h at 26.) Upon that, a fight/physical exchange between Logan and Daniel 'fight' broke out. (50h at 27-28.) The was pushing and shoving, and then Logan ended up on the ground. (50h at 28.) Logan does not recall if either he or Daniel threw a punch. (50h at 28-29.) 4 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 The physical exchange lasted a few seconds, and "as soon as it stopped being a verbal fight, it seconds." was over within (50h at 29.) hearing' Further, a 'manifestation is held when there is a superintendent's hearing to determine whether or not a student's disability is a cause of whatever the student allegedly did. (Baum at 12:24-13:3.) Logan's actions on the date of incident were concluded to be caused by his disability. (Id. at 13:12-14:16.) Paragraph 4- Disputed. See Response to #1. Further, on May 22, 2013, Daniel advised another boy that Daniel would beat up Logan in school, and minutes later a fight between Daniel and Logan occurred. (50h at 14.) Paragraph 5- 'unilateral' Disputed to the extent the fact states in that the boy who told plaintiff about Daniel's threats also did not advise defendants. Plaintiff admits that once plaintiff was told about Daniel's threats that plaintiff did not immediately advise defendants. Paragraph 6 & 7& 8- Disputed. See Response to #1. Paragraph 10- Disputed. Logan does not recall if either he or Daniel threw a punch. (50h at 28-29.) The physical exchange lasted a few seconds, and "as soon as it stopped being a verbal fight, itwas seconds." over within (50h at 29.) 5 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 Paragraph 11- 'fighting.' Disputed to the extent that itis unclear what is meant by Plaintiff admits that 'fight' Logan and Daniel landed on the floor. The was pushing and shoving, and then Logan ended up on the ground. (50h at 28.) Paragraph 13- Disputed. Plaintiff explicitly testified that he did not dislocate his shoulder during the altercation with Daniel. Plaintiff testified Q: When he tackled you onto the ground, do you know what part of your body hit the ground first? A: My head. Q: At that point after he tacked you, did you fell any pain in your right shoulder? A: No. Q: Do you know whether you had dislocated your right shoulder at that point? A: No. Q: Did you dislocate your right shoulder at that point? A: No. (6/7/16 Ryan Ebt at 69:18-70:6 ) Paragraph 17-20- Disputed. Evidence cited does not support the fact alleged. Moreover, the physical exchange lasted a few seconds, and "as soon as it stopped being a verbal fight, itwas over within seconds." (50h at 29.) 6 6 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 Paragraph 23- away," Disputed. "As the other combatant moved Mr. Cappabianca grabbed one of Logan's wrists, and Security Guard Joe Fortunato grabbed the other, and that is how they got Logan up off the floor. (Cabbabianca at 70:9-23.) Logan was not able to break free of grips of Mr. Cappabianca and Security Guard Fortunato. (Id. at 78.) Paragraph 24- Disputed. The cited evidence does not match the fact. The cited evidence indicates that the guards instead of walking out plaintiff placed him on a table. Paragraph 25- Disputed. Mr. Cappabianca testified he was never scared. (Id. at 119:24-25.) Mr. Cappabianca testified that once Logan was brought over to the table, he was unsuccessful in making any sort of offensive contact with Mr. Cappabianca (Id. at 117:25-118:8), and this was the period of time that Mr. Cappabianca was standing between Logan's legs as he was pulling Logan's shoulder back. He also testified that when bringing/moving Logan over to the table that Logan was unable to break free of his and Security Officer Fortunato's grip of his wrists, and at officers' no point in time was Logan ever able to break free of the grips of his wrists. (Id. at 70:9-23; 78; 108:21-109:10.) Plaintiff does admit that as Mr. Cappabianca was assaulting and hurting plaintiff that plaintiff cursed at him and threatened him. Paragraph 26- Disputed. The evidence does not support the fact alleged. 7 7 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 Paragraph 27- Disputed. It isunclear what period of time the fact is referring to, including whether the fact is referring to prior to or after Mr. Cappabianca dislocated Logan's right shoulder. Paragraph 28- 'unmanageable' 'danger' Disputed. It isunclear what and means. It isunclear what period of time the fact is referring to, including whether the fact is referring to prior to or after Mr. Cappabianca dislocated Logan's right shoulder. Paragraph 29- Disputed. Mr. Cappabianca testified he was never scared. (Id.at 119:24-25.) Mr. Cappabianca testified that once Logan was brought over to the table, he was unsuccessful in making any sort of offensive contact with Mr. Cappabianca (Id. at 117:25-118:8), and this was the period of time that Mr. Cappabianca was standing between Logan's legs as he was pulling Logan's shoulder back. He also testified that when bringing/moving Logan over to the table that Logan was unable to break free of his and Security Officer Fortunato's grip of his wrists, and at officers' no point in time was Logan ever able to break free of the grips of his wrists. (Id. at 70:9-23; 78; 108:21-109:10.) Paragraph 30- 'unmanageable' 'danger' Disputed. It isunclear what and means. It isunclear what period of time the fact is referring to, including whether the fact is referring to prior to or after Mr. Cappabianca dislocated Logan's right shoulder. See also, Response to #29. Paragraph 31- 8 8 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 Disputed. Cappabianca testified that once Logan was brought over to the table, he was unsuccessful in sort of offensive contact with Mr. Cappabianca (Id. at 117:25- making any 118:8), and this was the period of time that Mr. Cappabianca was standing between Logan's legs as he was pulling Logan's shoulder back. He also testified that when bringing/moving Logan over to the table that Logan was unable to break free of his and Security Officer Fortunato's grip officers' of his wrists, and at no point in time was Logan ever able to break free of the grips of his wrists. (Id. at 70:9-23; 78; 108:21-109:10.) Consequently, Logan was able to be removed at any time but was not. Paragraph 37- Disputed. It was 10 years prior to the date of incident when Mr. Cappabianca last restrained a person similar to how he was restraining Logan Ryan on the date of incident. (Cappabianca at 139:25-140:5.) The date of incident was the first time that Mr. Cappabianca broke up a fight in the school. (Id. at 50:7-10.) Logan Ryan was the first person under the age of 18 that Mr. Cappabianca ever restrained. (Id. at 37:12-16.) Prior to May 22, 201, the last time Mr. Cappabianca restrained a person was when he was as a special agent. (Id. at 35:4- working 8.) As critically, the school district never provided Mr. Cappabianca with any training pertaining to how to restrain a student. (Cappabianca at 34:24-35:3.) The school never instructed 'how' Mr. Cappabianca on to restrain a student, or under what circumstances he would restrain a student. (Id. at 42:5-10.) Paragraph 38- 9 9 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 Disputed. Mr. Cappabiana injured Logan Ryan. Plaintiff does admit that prior to May 22, 201, the last time Mr. Cappabianca restrained a person was when he was working as a special agent. (Cappabianca at 35:4-8.) Paragraph 39- Disputed. The fact is a legalproposition related to causation and/or hypothetical question not fitting for a statement of facts. Paragraph 40- Disputed. See Response to #30. Paragraph 41- Disputed. During the incident, Mr. Cappabianca was never scared. (Cappabianca at 119:24-25.) Paragraph 42- Disputed only to the extent that Mr. Cappabianca was trained nothing in regard to student and/or moving students. However, plaintiff does admit that Mr. Cappabianca was well aware of methods that inflict pain. Paragraph 43- Disputed. This is a legalconclusion not fitting for a statement of fact. Further, Mr. Cappabianca used excessive force. (See Plaintiff'sMemorandum of Law.) Paragraph 45- Disputed. It isunclear what period of time the fact is referring to, including whether the fact is referring to prior to or after Mr. Cappabianca dislocated Logan's right shoulder. 10 10 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 Paragraph 46- Disputed. After Mr. Cappabianca dislocated Logan's right shoulder and used excessive force on Logan, Logan was in fact released and no one was at risk. Paragraph 48- Disputed. The fact really states a legal conclusion. Moreover, the security guards used done.' excessive force, and plaintiff disputes that excessive force Ieeded to be Paragraph 49- Disputed. The notice of claim alleges that defendants failed "to properly investigate and/or evaluate the results of any investigation of those persons. . . employees hired to operate, ." manage, control, supervise teach at and/or run said School. . Paragraph 49- Disputed. Plaintiff alleged that Logan sustained severe permanent personal injuries, the full extent of which was not presently known, including for pain and suffering, loss of quality and/or enjoyment of life, and all other damages in which Logan was entitled to assert by case law or statute. PLAINTIFF'S STATEMENT OF ADDITIONAL FACTS of deposition of Logan Ryan taken on June 2020 and Logan Ryan's 50- Summary 5, h taken on March 20, 2014. 1. At the time of his March 20, 2014 50-h hearing, Logan Ryan was taking medications for depression and bipolar disorder. (See, Logan Ryan's 50h (hereinafter '50h at. . .')at 6 attached as defendant's Exhibit F.) 11 11 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 2. On May 22, 2013, Logan was 5 feet, 7 inches tall, and weighed 140 pounds. (50h at 6.) 3. On May 22, 2013, Logan was fifteen years old. (6/5/2020 Logan Ryan Ebt (hereinafter .' defendants' '6/5/20 Ryan at.. at 5 attached as Exhibit G; 50h at 49.) 10th 4. On May 22, 2013, Logan was in grade at the Ward Melville High School. (6/5/20 Ryan at 12.) 5. From ages 9 to 13, Logan was physically abused by his father. (6/5/20 Ryan at 23-27.) 6. Logan's father tried to sexually assault Logan. (6/5/20 Ryan at 33.) 7. From ages of 5 and 6, Logan was sexually assaulted by his uncle/ father's brother. (6/5/20 Ryan at 34:8-37:22.) 8. Along with the occasions of sexual assault, Logan's uncle raped him. (6/5/20 Ryan at 38:2-17.) 9. After the episodes of child abuse, Logan lashed out in the sense that if he got angry then he got angry toward himself. (6/5/20 Ryan at 67:22-68:12.) 10. As of May 22, 2013, Logan was receiving psychiatric counseling. (6/5/20 Ryan at 17.) 11. Since 2002 or 2003, Logan received psychiatric counseling. (6/5/20 Ryan at 17-21.) 12. Prior to May 22, 2013, Logan treated with a school psychologist/social worker. (6/5/20 Ryan at 68:16-69:15.) 13. Prior to May 22, 2013, Logan's school psychologist/social worker provided guidance/treatment regarding how to deal with his prior history of sexual assault/rape. (50h at 57:12-24.) 14. Regarding the school, Logan was aware that 2-3 security guards were stationed at the cafeteria doors. (50h at 19.) 12 12 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 15. Logan was aware that some of the security guards were retired police officers. (50h at 21.) 16. Prior to May 22, 2013, and for approximately two months, Daniel Catalina was advising other children that he could beat up Logan. (50h at 12-13.) 17. Prior to May 22, 2013, Logan and Daniel Catalina never had gotten into a physical altercation. (50h at 12.) 18. On May 22 2013, Daniel advised another boy that Daniel would beat up Logan in school, and minutes later a fight between Daniel and Logan occurred. (50h at 14.) 19. After being told what Daniel said, on May 22nd, Logan then went up to Daniel in the cafeteria and asked Daniel if he stated that he would beat up Logan in school, and Daniel responded yes. (50h at 26.) 20. Upon a fight/physical exchange between Logan and Daniel broke out. (50h at 27- that, 28.) 'fight' 21. The was pushing and shoving, and then Logan ended up on the ground. (50h at 28.) 22. Logan does not recall if either he or Daniel threw a punch. (50h at 28-29.) 23. The physical exchange lasted a few seconds, and "as soon as it stopped being a verbal seconds." fight, itwas over within (50h at 29.) 24. In terms of how the physical fight ended, Logan testified "all I know is that I was put onto the floor and then I look up and there was a security guard on top of me. I was hit back ground." onto the floor, my head hitting the (50h at 29:24-30:4.) 25. Logan was on the floor prior to the security guard arriving, but Logan had not struck his head against the ground until after the security guard arrived. (50h at 30:9-13.) 13 13 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 26. Upon the security guard arriving, the guard "put his body weight on top of me and my whole body- I was myself with hands and whole just went right back on pushing up my my body ground." the floor and my head hit the (50h at 30:15-22.) 27. After hitting his head, Logan was still on the ground, and the security guard was still laying on top of him grabbing Logan by the legs, and then multiple other security guards grabbed Logan by his arm and body. (50h at 32:5-12.) 28. Daniel was rushed out of the cafeteria by another security guard. (50h at 32.) table" 29. Logan picked himself up off the ground, and then he "was brought down onto the that was right next to him. (50h at 32-33.) down" 33- 30. Logan was "slammed back on the table, with his back hitting the table. (50h at 34.) 31. Once Logan was slammed down on the table, one security guard was behind him holding down his shoulders; another security guard was positioned between his legs over him holding his chest down; and another security guard was holding him by the arm. (50h at 34.) 32. The security guard positioned between Logan's legs was laying on top of him. (50h at 34.) forever," 33. Although "itfelt like Logan estimated that he was pinned on the table for 8 to 10 minutes. (50h at 35.) 34. Logan was asked if he tried to kick out his legs while pinned on the table, and he testified spread," kick." that his legs "were full and he "couldn't (50h at 36.) 35. While pinned on the table, Principal Alan Baum arrived at the scene. (50h at 37.) 36. Principal Baum was trying to calm Logan down by rubbing his hand on his stomach. (50h at 37-38.) 14 14 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 'begged' 37. While pinned on the table, Logan them to bring him to a different room because he did not want to be seen by his classmates, and at that point the security officers picked him up off the table for approximately two seconds but then for some reason unknown to him slammed him down on his stomach again. (50h at 38.) 38. During the 8 to 10 minutes of being pinned on the table, Logan used profanity and kill' face.' 39- 'threatened to security officer Don Cappabianca, 'who was smiling in my (50h at 40.)¹ 39. Prior to the incident, Logan did not know who Mr. Capabianca was. (50h at 40.) 40. Logan never struck any of the security guards. (50h at 40.) 41. Logan never threatened to headbutt a security guard. (50h at 41.) 42. Logan did not drink any alcohol on the date of incident. (50h at 49.) 43. While being pinned on the table, Logan complained to the guards that they were dislocating his left shoulder. (50h at 48.) 44. While being pinned on the table, Logan tried to keep picking his body up off the table. (50h at 49.) 45. Eventually, Logan was brought into a teacher's conference room that was approximately 30-40 feet away from the cafeteria. (50h at 51-52.) 46. While in the teacher's conference room, Logan was supervised by one of the security side,' guards that was 'on the nicer and said guard helped Logan put his left shoulder back in the socket. (50h at 52:12-14.) 1 Attached as part of Exhibit D are photographs of the incident, including a photograph of Mr. Cappabianca standing over plaintiff and grinning at him. 15 15 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 47. Eventually, an EMT evaluated Logan to make sure that Logan did not need stitches above his left eye. (50h at 54.) 48. After the date of incident, Logan went to see Dr. Pena regarding complaints related to the shoulder. (50h at 59-60.) 49. Approximately two days after the incident, Logan started a conversation with Daniel Catalina, and the two boys closed out any tension between the two of them. (50h at 66.) 50. During the altercation with the guards, Logan did not lose consciousness, but he did black out. (50h at 54.) 51. Regarding the incident, Logan eventually advised his mother Q: What did you tellher? A: Just that there was fight and that the security guards held me down and that itjust was affecting me mentally. Q: In what why was it affecting you mentally? A: I was sexually assaulted between ages of five and six and- uncle and the of men on of me did not by my group top help that situation. Q: You okay? A: Yeah, I'm fine. (50h at 56:22-57:7.) 52. A series of photographs depicting Logan being held by the security guards were placed on Facebook. (50h at 42-43.) 53. After the May 22, 2013 incident, Logan became very depressed and suicidal because "it was almost reliving of the childhood, if you look at those pictures and what not. So the year." 93:15- depression really was very hard that summer leading into that next (6/5/20 Ryan at 21.) 16 16 of 39 FILED: SUFFOLK COUNTY CLERK 11/01/2022 03:27 PM INDEX NO. 063290/2014 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 11/01/2022 Summary of deposition of Security Guard Don Cappabianca. 54. Since September 2008, Mr. Don Cappabianca has been a security guard employed by Defendants' Three Village Center School District. (Cappabianca at 7-8 attached as Exhibit K.) 55. Mr. Cappabianca works at Ward Melville High School. (Id. at 10.) 56. The date of incident was the first time that Mr. Cappabianca ever worked the 10 am to 6 pm shift.(Id. at 16:24-17:4.) 57. Prior to working in the school, Mr. Cappabianca was a contract investor for the United States Custom Service. (Id. at 20.) 58. Prior to being a contractor investigator for United States Custom Service, Mr. Cappabianca was a criminal investigator/special agent for twenty-seven years for the United States Custom Service investigating drug smugglers. (Id. at 21-22.) 59. While working for the US Custom Service investigating drug smugglers, Mr. Cappabianca made many arrests and restrained suspects in the sense "a guy's running, you grab ." him, you put him in