Decision No. 18,160
* Subsequent History: Matter of Wenk v Board of Educ. of Longwood Central School Dist., et al.; Supreme Court, Suffolk County; second amended petition filed November 15, 2022. *
Appeal of W.W. from action of the Board of Education of the Longwood Central School District regarding a board resolution.
Decision No. 18,160
(July 25, 2022)
Hoguet Newman Regal & Kenney, LLP, attorneys for petitioner, Bradley J. Nash, Esq., of counsel
Ingerman Smith, LLP, attorneys for respondent, Ra’anaa K. Samad, Esq., of counsel
ROSA., Commissioner.--Petitioner, a former teacher, challenges the determination of the Board of Education of the Longwood Central School District (“respondent”) to deny his request for defense and indemnification with respect to a civil action. The appeal must be dismissed.
A former student commenced a civil lawsuit in August 2021 against petitioner and respondent, claiming, among other things, that petitioner sexually assaulted her while she attended respondent’s high school. Petitioner thereafter requested defense and indemnification from respondent.
On September 10, 2021, respondent denied petitioner’s request because: (1) petitioner failed to notify respondent of his request within five days of receipt; (2) the civil suit alleged that petitioner engaged in “criminal activity”; and (3) this criminal activity was committed outside the scope of petitioner’s duties as a teacher. This appeal ensued.
Petitioner asserts that respondent improperly denied his request for defense and indemnification because the alleged conduct occurred while he was employed as a teacher in respondent’s district. Petitioner further contends that he notified the board of the civil action in conformity with Education Law § 3811. For relief, petitioner seeks an order directing respondent to defend him in the civil action.
Respondent denies that petitioner is entitled to defense or indemnification under the Education Law or the Public Officers Law because the allegations in the civil complaint concern conduct outside the scope of his duties as a teacher.
I must first address a procedural matter. Petitioner seeks permission to file a submission, dated December 14, 2021, in response to respondent’s memorandum of law. Additional affidavits, exhibits, and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR 276.5). While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). I decline to consider petitioner’s proposed submission, which merely restates arguments and defenses presented in his reply.
Turning to the merits, Education Law § 3811 identifies the circumstances under which a school district is required to defend and indemnify, among other individuals, “member[s] of the teaching or supervisory staff” in civil “actions or proceedings” (Education Law § 3811 ). Defense and indemnification is only available if the alleged conduct arose out of the “exercise of [a teacher’s] powers or the performance of [his or her] duties,” a phrase equivalent to the term “scope of employment” (Matter of James v Board of Educ. of the Marathon Cent. Sch. Dist., 42 Misc 3d 1202[A], 2013 NY Slip Op 52173(U), *3 [Sup Ct, Nassau County 2013]; see Appeal of Carmand and White, 54 Ed Dept Rep, Decision No. 16,689). Whether an act was within the scope of employment may be resolved as a matter of law “when the undisputed facts provide no basis for the application of the doctrine” (Schilt v New York City Tr. Auth., 304 AD2d 189, 193 [1st Dept 2003]).
A board of education’s determination as to whether the act that gave rise to a civil action fell within the provisions of Education Law § 3811 “will be set aside only if it lacks a factual basis” and, thus, “is arbitrary and capricious” (Matter of Matyas v Board of Educ., Chenango Forks Cent. School Dist., 63 AD3d 1273, 1274 [3d Dept 2009] [internal quotations omitted]). In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
The complaint in the civil action alleges that petitioner “sexually assaulted, sexually abused, and had sexual contact with” the minor victim. The Court of Appeals has unambiguously held that sexual assault perpetrated by an employee is a “clear departure from the scope of employment, having been committed for wholly personal motives” (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 ; see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ; Fernandez v DeLeno, 71 FSupp2d 224, 231 [SD NY 1999] [“it is well established that under New York law, … sexual misconduct … is outside the scope of employment for purposes of (Public Officers Law) § 18”]; Wahlstrom v Metro-N. Commuter R.R., US Dist Ct, SD NY, 96 Civ 3589, Leisure, J., Apr. 23, 1998 [same]). Thus, respondent appropriately denied petitioner’s request to defend him against allegations of sexual assault.
Petitioner argues that Matter of Cotter v Board of Educ. of Garden City Union Free School Dist., 63 AD3d 1060 (2d Dept 2009), supports a contrary conclusion. In that case, two teachers “became involved in a physical altercation” that resulted in the petitioner, Mr. Cotter, placing his colleague Philip McCarthy “in a headlock.” Mr. McCarthy claimed that the attack was unprovoked, while Mr. Cotter alleged that he was indeed provoked after his colleague “threw water at him.” Mr. McCarthy thereafter commenced a civil action for assault against Mr. Cotter. The Second Department held that Mr. Cotter was entitled to defense and indemnification, reasoning that “[t]he altercation occurred on school grounds, while [Mr. Cotter] and McCarthy were on duty grading Regents examinations.” From this, the court concluded that the reasons for the assault were not “wholly personal” (id. at 1060-61).
Cotter, in turn, relied upon Beauchamp v City of New York for the “wholly personal” proposition. In Beauchamp, the court denied the employer summary judgment on the issue of defense and indemnification because “issues of fact [existed] as to whether [police] officers assaulted the injured plaintiffs for wholly personal reasons, or whether they may have used excessive force within the scope of their employment …” (Beauchamp, 3 AD3d at 467). This reflects the fact that police officers may physically engage with citizens in the course of their duties. While courts have reached similar conclusions with respect to a teacher’s use of reasonable physical force to restrain or remove a student (see Matter of Sagal-Cotler v Board of Educ. of the City School Dist. of the City of N.Y., 20 NY3d 671, 675 ; Matter of Inglis v Dundee Cent. School Dist. Bd. of Educ., 180 Misc 2d 156, 159 [Sup Ct Yates County 1999]), this reasoning does not apply to a teacher’s assault of a fellow teacher.
The Cotter court further suggested that the incident was work-related because the teachers were grading Regents examinations immediately prior to the scuffle. However, covered acts must be “generally foreseeable [as] a natural incident of the employment” (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933, ) and “further the employer’s interest” (Schilt v New York City Transit Auth., 304 AD2d 189, 193 [1st Dept 2003], quoting Stavitz v City of New York, 98 AD2d 529, 531 [1st Dept 1984]). The Cotter court offered no explanation as to how placing a teacher in a headlock satisfied those conditions.
In any event, Cotter must yield to the Court of Appeals’ pronouncement that sexual assault is per se outside the scope of employment (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252  [“We refuse to transmogrify [a physician employee’s] egregious conduct into a medical procedure within [his] scope of employment. This was a sexual assault that in no way advanced the business of the [employer]”). Thus, I cannot find that respondent acted arbitrarily or capriciously in denying petitioner’s request for defense and indemnification.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The record does not reveal whether respondent has adopted the protections of Public Officers Law § 18 (see Application of Moss, 60 Ed Dept Rep, Decision No. 17,956; Appeal of Carmand and White, 54 id., Decision No. 16,689). This would not affect the outcome of this appeal, however, as Public Officers Law § 18 (3) (a) imposes an identical “scope of employment” requirement (see Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586 [3d Dept 2007]).
 I note that petitioner had an opportunity to submit a memorandum of law but elected not to do so (8 NYCRR 276.4).
 3 AD3d 465 (2d Dept 2004).
 I further note that Cotter has not been relied upon, or cited, by any reported cases in the 13 years since its issuance.