| McGovern v Nassau County Dept. of Social Servs. |
| 2009 NY Slip Op 02572 [60 AD3d 1016] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Marguerite McGovern, Appellant, v Nassau CountyDepartment of Social Services, Defendant, and Board of Education, Long Beach School District,Respondent. |
—[*1] Ingerman Smith, LLP, Hauppauge, N.Y. (Christopher Venator and Ethan D. Balsam ofcounsel), for respondent.
In an action, inter alia, to recover damages for educational malpractice, the plaintiff appeals,as limited by her brief, from so much of an order of the Supreme Court, Nassau County(Murphy, J.), dated June 6, 2007, as granted the motion of the defendant Board of Education,Long Beach School District to dismiss the complaint insofar as asserted against it pursuant toCPLR 3211 (a) (7).
Ordered that the order is affirmed insofar as appealed from, with costs.
On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR3211 (a) (7), the court must accept all of the facts alleged in the pleading as true, and accord theplaintiff the benefit of every possible inference in determining whether the facts alleged fitwithin any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994];Kass v Zaslav, 55 AD3d 877 [2008]; Dinerman v Jewish Bd. of Family & Children'sServs., Inc., 55 AD3d 530, 531 [2008]; Flax v Lincoln Natl. Life Ins. Co., 54 AD3d992, 994 [2008]). Applying this standard here, the complaint fails to state a cause of actionagainst the defendant Board of Education, Long Beach School District (hereinafter the Board ofEducation). The plaintiff alleges, inter alia, that the Board of Education ignored the concerns sheexpressed about her daughter's reading skills when the child was in elementary school, andinappropriately placed the child in a special education class when she reached middle school.These allegations sound in educational malpractice, which has not been recognized as a cause ofaction in this state because public policy precludes judicial interference with the professional[*2]judgment of educators and with educational policies andpractices (see Torres v Little Flower Children's Servs., 64 NY2d 119, 126-127 [1984];Hoffman v Board of Educ. of City of N.Y., 49 NY2d 121, 125 [1979]; Donohue vCopiague Union Free School Dist., 47 NY2d 440, 444 [1979]; Livolsi v HicksvilleUnion-Free School Dist., 263 AD2d 447 [1999]; Suriano v Hyde Park Cent. SchoolDist., 203 AD2d 553, 554 [1994]).
Furthermore, the plaintiff's allegations that she has reason to believe that the Board ofEducation tampered with her daughter's school records in an unspecified manner, and concealedinformation or provided false information in connection with a child protective proceedingcharging the plaintiff with educational neglect, do not set forth the requisite elements of a fraudclaim with the particularity required by CPLR 3016 (b) (see Sargiss v Magarelli, 50AD3d 1117, 1118 [2008]; Boyle v Burkich, 245 AD2d 609 [1997]; Sirohi v Lee,222 AD2d 222 [1995]). The complaint also fails to state a cause of action to recoverdamages for either intentional or negligent infliction of emotional distress because the actsallegedly committed by the Board of Education were not "so outrageous in character, and soextreme in degree, as to go beyond all possible bounds of decency" (Ruggiero vContemporary Shells, 160 AD2d 986, 987 [1990]; see Tartaro v Allstate Indem. Co.,56 AD3d 758, 759 [2008]; Stanton v Carrara, 28 AD3d 642 [2006]).
To the extent that the plaintiff's contentions relate to wrongful acts allegedly committed bythe defendant Nassau County Department of Social Services (hereinafter the Department), theyare not properly before us. The plaintiff did not appeal from an order of the Supreme Court,Nassau County (Jaeger, J.), dated September 22, 2006, which granted the Department's motion todismiss the complaint insofar as asserted against it, and her claims against the Department areoutside of the scope of this appeal (see Global Connect Strategic Voice of Broadcasting,Corp. v Oxford Collection Agency, Inc., 50 AD3d 737 [2008]; Murray v City of NewYork, 43 AD3d 429, 430 [2007]). Spolzino, J.P., Florio, Miller and Eng, JJ., concur.[See 16 Misc 3d 1114(A), 2007 NY Slip Op 51422(U).]