        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
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                                                         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
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                                                         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
