SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

427 

CA 15-01083 

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. 

 

SARAH BOYLE AND EMILY BOYLE, BY THEIR PARENT 

ROBERT W. BOYLE, JR., AND ROBERT W. BOYLE, JR., 

INDIVIDUALLY, PLAINTIFFS-APPELLANTS,

V MEMORANDUM AND ORDER

CALEDONIA-MUMFORD CENTRAL SCHOOL, 

DEFENDANT-RESPONDENT. 

 

E. ROBERT FUSSELL, P.C., LEROY (E. ROBERT FUSSELL OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS. 

OSBORN, REED & BURKE, LLP, ROCHESTER (AIMEE LAFEVER KOCH OF COUNSEL),

FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Livingston County

(Robert B. Wiggins, A.J.), entered March 5, 2015. The order granted

defendant’s motion for summary judgment dismissing plaintiffs’

complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for

injuries allegedly resulting from the actions of defendant school

district in response to a series of incidents involving infant

plaintiffs, Sarah and Emily. The incidents occurred during the 2009-

2010 school year, when infant plaintiffs were middle school students. 

Throughout the 2009-2010 school year, infant plaintiffs were subject

to various disciplinary actions, culminating in a proposed one-year

suspension for the ensuing school year. In addition, another student

at the middle school and her mother reported to the police that Sarah,

inter alia, slammed the student’s head into a locker and punched her

in the face. Following that police report, the Livingston County

Attorney filed a petition in Family Court alleging that Sarah had

committed an act that, if done by an adult, would constitute the crime

of assault in the third degree.

The complaint asserts four causes of action: abuse of process,

“outrageous conduct causing emotional distress,” prima facie tort, and

“intentionally making false statements.” In addition, although they

are not set forth as distinct causes of action, the complaint alleges

that defendant denied infant plaintiffs their rights to due process

under the Fourteenth Amendment of the US Constitution and Education
-2- 427 

CA 15-01083 

Law § 3214 (3), and denied them rights protected under Education Law 

§ 2801-a.

Supreme Court properly granted defendant’s motion seeking summary

judgment dismissing the complaint. At the outset, we note that

plaintiffs have not raised any contentions in their brief with respect

to the causes of action asserting prima facie tort and “intentionally

making false statements,” and they have thus abandoned any issues

concerning the dismissal of those causes of action (see Ciesinski v

Town of Aurora, 202 AD2d 984, 984). Defendant met its burden of

establishing that the abuse of process cause of action has no merit by

submitting evidence that it did not cause process to be issued against

Sarah (cf. D’Amico v Correctional Med. Care, Inc., 120 AD3d 956, 960;

see generally Curiano v Suozzi, 63 NY2d 113, 116). The cause of

action asserting “outrageous conduct causing emotional distress” was

properly dismissed inasmuch as “[p]ublic policy bars claims sounding

in intentional infliction of emotional distress against a government

entity” (Matter of Gottlieb v City of New York, 129 AD3d 724, 727). 

In any event, the court properly concluded as a matter of law that

defendant’s alleged conduct was not “so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency

and to be regarded as atrocious, and utterly intolerable in a

civilized community” (Carpenter v City of Plattsburgh, 105 AD2d 295,

300, affd 66 NY2d 791 [internal quotation marks omitted]; see Rocco v

Town of Smithtown, 229 AD2d 1034, 1035, appeal dismissed 88 NY2d

1065). Contrary to plaintiffs’ contention, moreover, defendant’s

alleged violations of the Education Law do not constitute outrageous

conduct and, in any event, plaintiffs have no private right of action

based upon those alleged statutory violations (see generally Uhr v

East Greenbush Cent. Sch. Dist., 94 NY2d 32, 38-42).

Turning to the alleged procedural due process violations, we

agree with plaintiffs that infant plaintiffs had a constitutionally

protected interest in the continuation of their education and, when

they faced a long-term suspension, they had a right to be heard under

the US Constitution (see Matter of Board of Educ. of Monticello Cent.

Sch. Dist. v Commissioner of Educ., 91 NY2d 133, 139; Matter of Board

of Educ. of City Sch. Dist. of City of N.Y. v Mills, 293 AD2d 37, 39),

as well as Education Law § 3214 (3) (c) (see Board of Educ. of

Monticello Cent. Sch. Dist., 91 NY2d at 139). That right, however,

was subject to waiver (see generally Boddie v Connecticut, 401 US 371,

378-379), and plaintiff father waived the infant plaintiffs’ due

process right to a hearing when he opted not to follow through with a

hearing and instead enrolled them in another school district (see

generally Green v Green, 288 AD2d 436, 437). We agree with defendant

that the complaint does not assert an equal protection claim. The

court nevertheless addressed such a claim, and the record supports the

court’s conclusion that there was no equal protection violation (see

Acquest Wehrle, LLC v Town of Amherst, 129 AD3d 1644, 1648-1649,

appeal dismissed 26 NY3d 1020).

Finally, we reject plaintiffs’ contention that summary judgment

was premature because they had not completed discovery. Plaintiffs
-3- 427 

CA 15-01083 

failed to establish that facts essential to oppose the motion were in

defendant’s possession, and their “mere hope” that further depositions

would disclose evidence to prove their case is insufficient to support

denial of the motion (Ramesar v State of New York, 224 AD2d 757, 759,

lv denied 88 NY2d 811; see Brummer v Barnes Firm, P.C., 56 AD3d 1177,

1179).

Entered: June 10, 2016 Frances E. Cafarell

Clerk of the Court