Baeringer et al v. Plainview-Old Bethpage Central School District et al

Filing 26

MEMORANDUM and ORDER: Plaintiffs motion 20 for reconsideration is DENIED. Ordered by Judge Frederic Block on 8/29/2024. (MI)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LEWIS BAERINGER, CINDY
BAERINGER, individually and as the
parents and natural guardians of H.B.,
their infant daughter,
Plaintiffs,

MEMORANDUM AND ORDER
Case No. 23-cv-03557 (FB) (SIL)

-againstPLAINVIEW-OLD BETHPAGE
CENTRAL SCHOOL DISTRICT and
ALICE BOWMAN, individually and in
her official capacities as an employee of
the school district,

Defendants.
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Appearances:
For the Plaintiffs:
MICHAEL R. WALKER
Gallagher, Walker, Bianco & Plastaras,
LLP
98 Willis Avenue
Mineola, NY 11501
BLOCK, Senior District Judge:

For the Defendants:
ADAM I. KLEINBERG
SAMANTHA VELEZ
Sokoloff Stern LLP
179 Westbury Avenue
Carle Place, NY 11514

In this civil-rights action brought by Plaintiffs Lewis and Cindy Baeringer
individually and on behalf of their infant daughter, H.B., against Defendants
Plainview-Old Bethpage Central School District (the “District”) and Principal
Alice Bowman (“Bowman”), the Court denied Defendants’ motion to dismiss
several claims against Bowman but granted it as to the District. See Baeringer v.

Plainview-Old Bethpage Cent. Sch. Dist., No. 23-CV-03557 (FB) (SIL), 2024 WL
3161814 (E.D.N.Y. June 25, 2024). Plaintiffs now move for reconsideration solely
on the Court’s decision to dismiss their negligence/respondeat superior claim
against the District. For the following reasons, Plaintiffs’ motion is DENIED.
I.

BACKGROUND

General familiarity with the alleged facts is assumed. H.B. was a middleschool student at the District’s Plainview-Old Bethpage Middle School located in
Nassau County. On January 31, 2022, H.B. experienced unspecified emotional
distress “arising from events involving other students,” which led H.B. to seek the
services of a school counselor. Before returning to school, H.B. required removal
from school and psychological evaluation clearance by an independent
psychologist, which she received at about 4:30 PM that day. The psychologist
notified the school counselor that H.B. was cleared to return.
Several hours later, the District/Bowman contacted the Nassau County
Police Department to have H.B. “undergo an involuntary, forced, and unnecessary,
second psychological evaluation.” The Complaint alleges that Bowman called the
police to retaliate against Plaintiffs for “prior events and occurrences between the
parties.” Compl. ¶ 60.
In the early evening of that same day, police officers arrived at Plaintiffs’

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residence and forcibly and involuntarily transported H.B. via police ambulance to
Nassau University Medical Center for a second psychological evaluation. Cindy
Baeringer and H.B. were placed in an observation room and “observed” for several
hours before the individual psychological evaluation was performed on H.B. This
evaluation eventually cleared H.B. and released her to go home.
II.

DISCUSSION

Federal Rule of Civil Procedure 59(e) enables parties to timely file motions
to alter or amend a judgment to “correct a clear error of law or prevent manifest
injustice.” Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 153 (2d Cir. 2008).
Such motions must “request a substantive alteration of the judgment, not merely
the correction of a clerical error, or relief of a type wholly collateral to the
judgment.” ING Glob. v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 96
(2d Cir. 2014) (quoting id.). Local Rule 6.3 is similar, with reconsideration
“demanding” and to be used “sparingly.” Benny v. City of Long Beach, No. 20CV-1908 (KAM)(ST), 2022 WL 9446910, at *1 (E.D.N.Y. Oct. 14, 2022).
In its initial opinion, the Court explained that Plaintiffs had not plausibly
alleged a negligence claim on a respondeat superior theory against the District
because liability will not attach where an “employee commits a tort
for personal motives unrelated to the furtherance of the employer’s
business.” Flores v. Saulpaugh, 115 F. Supp. 2d 319, 325 (N.D.N.Y.
2000). Here, the Complaint alleges such a personal motive by stating
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that Bowman’s actions were “retaliation for prior events and
occurrences that had occurred between the parties.”
Baeringer, 2024 WL 3161814 at *5.
Plaintiffs urge the Court to reconsider its dismissal of its negligence claim
against the District based on a theory of vicarious liability/respondeat superior.
Specifically, they argue that Bowman “negligently acted in deviating from and
violating the policies of the District. . . . In the event that the defendant Bowman
acted negligently rather [than] in intentional retaliation, such actions would be in
furtherance of her employer’s business and the District would face vicarious
liability under respondeat superior.” Pl.’s Mot. at 3-4. In their reply brief,
Plaintiffs suggest further that a “general negligence claim as to Bowman [], if
proven, would establish vicarious liability on the District.”1 Pl.’s Reply at 3.
Plaintiffs misstate the basis for establishing liability against an employer
under the doctrine of respondeat superior. Simply put, an employer is not ipso
facto liable for all torts — whether negligent or intentional — committed by its
employees. See Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999)
(noting limitations). Returning to first principles of New York law, an employer
may be vicariously liable for the torts of its employee where she acts within the
scope of her employment. See id. (collecting cases). But critically, where “an
1 Plaintiffs cite no caselaw for their argument in either brief.

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employee’s conduct is brought on by a matter wholly personal in nature, the
source of which is not job related, [her] actions cannot be said to fall within the
scope of [her] employment.” Stavitz v. City of New York, 471 N.Y.S.2d 272, 274
(1st Dep’t 1984) (emphasis added); see also Judith M., 93 N.Y.2d at 933 (lower
courts properly dismissed respondeat superior claim where “it is clear that the
employee here departed from his duties for solely personal motives unrelated to the
furtherance of the Hospital’s business”).
The Court accepted as true Plaintiffs’ factual allegation that “Bowman’s
actions towards the plaintiffs on January 31, 2022, were retaliation for prior events
and occurrences that had occurred between the parties.” Compl. ¶ 60. Where the
plaintiff alleges that the incident “arose from a prior personal dispute,” no liability
will attach to the employer. Haybeck v. Prodigy Services Co., 944 F. Supp. 326,
330 (S.D.N.Y. 1996) (quoting Kelly v. City of New York, 692 F. Supp. 303, 308
(S.D.N.Y. 1988). Consequently, because Bowman’s conduct “[arose] from
personal motives and [did] not further [the] employer’s business,” the Court
dismissed the claim. Adorno v. Corr. Servs. Corp., 312 F.Supp.2d 505, 517
(S.D.N.Y. 2004). Plaintiffs’ allegations that Bowman’s actions occurred after
school hours only buttress the conclusion. See Compl. ¶¶ 49-50, 53 (alleging that
Bowman contacted the police “several hours” after 4:30 PM psychological

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evaluation); see also Haybeck, 944 F. Supp. at 329 (“Courts have repeatedly held
that acts taken and decisions made on an employee’s personal time outside of work
cannot be imputed to an employer.”).
In the context of a respondeat superior theory against the District, Plaintiffs’
emphasis on Bowman’s violation of District policies is puzzling. Indeed,
Bowman’s violation of District policies is entirely consistent with their allegations
that her actions arose from personal animus towards Plaintiffs. And regardless of
what policies were in place, the Court cannot impute liability to the District for
Bowman’s actions where the Complaint alleges that her conduct was motivated by
“personal reasons unrelated to the employer’s interest.” Ierardi v. Sisco, 119 F.3d
183, 188 (2d Cir. 1997).
Plaintiffs attempt to rescue their theory by arguing that they may plead legal
theories in the alternative. Pl.’s Mem. at 6. It is of course true that under Federal
Rule of Civil Procedure 8, a plaintiff may plead alternative legal theories, for
example, that a defendant breached a contract and was unjustly enriched. See
Astroworks, Inc. v. Astroexhibit, Inc., 257 F. Supp. 2d 609, 616 n.10 (S.D.N.Y.
2003). But because “facts are binding judicial admissions,” a plaintiff may not
plead “inconsistent facts, e.g., whether there was an agreement” at all. Id. (citing
Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 528 (2d Cir. 1985)).

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Here, the Court dismissed Plaintiffs’ negligence claim against the District
based on Plaintiffs’ factual allegation that Bowman called the police on H.B. to
retaliate against Plaintiffs, not on Plaintiffs’ alternative legal theories. See Compl.
¶ 60. “Factual allegations alone are what matters,” Albert v. Carovano, 851 F.2d
561, 571 n. 3 (2d Cir. 1988) (en banc), and Plaintiffs’ factual allegation about
Bowman’s personal motive “is a judicial admission by which it normally is bound
throughout the course of the proceeding.” Bellefonte, 757 F.2d at 528. Accepting
this factual allegation as true on a Rule 12(b)(6) motion, the Court properly
determined that it precluded a claim of vicarious liability against the District
because Bowman “went outside [her] employment and acted to advance a purpose
of [her] own.” Osipoff, 286 N.Y. at 432. Plaintiffs’ belated, conclusory legal
assertions cannot rescue a theory of liability inconsistent with the facts it pleaded.
III.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion is DENIED.
SO ORDERED.
_/S/ Frederic Block________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
August 29, 2024

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