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May 2, 2014

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Family says district ignored bullying


By NATALIA BAAGE & R.J. MARX

A Bedford Village family is suing the Bedford Central School District for injuries allegedly incurred to their son while he was attending Bedford Village Elementary School in 2011.

The parents state that their son was the victim of bullying that led to injuries, including “testicular torsion” — a condition that can lead to infertility — after an alleged assault by a student on Feb. 8, 2011. They also state that their son suffered a deviated septum as the result of an alleged bullying by another student on the school playground in June 2011.

The claim seeks damages against the Bedford Central School District  and the Bedford Central Board of Education in the sum of $500,000 on behalf of the son and $250,000 on behalf of his parents. The plaintiff’s father, a lawyer, first filed legal documents in New York State Supreme Court in White Plains in June 2011 on behalf of his son, who now attends a private school.

In papers filed on Feb. 28 of this year, school district lawyers asked Judge Joan Lefkowitz for summary judgment, seeking to dismiss the charges, stating that “there are no triable issues of material fact to be resolved at trial.”


A series of alleged incidents

The father of the plaintiff lists incidents from 2008 to 2011 in which his son was allegedly assaulted on the school bus or punched and kicked in class and cites “intimidation, harassment, menacing or bullying.”

The father states in court papers that the bullying began in September 2007, when his son was in kindergarten, and continued on numerous occasions in 2008, 2009 and 2010, when in November another boy allegedly followed him to the bathroom and exposed himself, and in 2011, when he was allegedly assaulted throughout the school year.

The student’s groin injury was allegedly committed by a BVES student having a long history of aggressive behaviors, the father states in court documents. The father also states that his son was punched in the genital area by the same student while riding the school bus from Bedford Village Elementary School on April 13, 2011.

According to the father in his Feb. 26, 2014 response to the court, issues to be considered are whether the district had sufficient notice of the dangerous tendencies of the alleged tormentor; whether the district satisfied its duty by refusing to separate the student from his alleged tormentor and refusing to permit in-home instruction or a transfer to the Pound Ridge Elementary School; and whether the district had a proper plan for protecting his son.

The father states that the district recognized the “aggressive and dangerous behavior” of a fellow student as early as 2008, when his son was in kindergarten at Bedford Village Elementary School.

According to the father, the incidents were caused by “student-on-student violence, and by the negligence of Bedford Central School District and the board of education, and the town of Bedford.”

The town of Bedford has subsequently been eliminated as a party in the family’s lawsuit, while the suit against the district and the board of education is moving forward.


Parents say they sought alternatives

According to the father in a phone interview last Friday, April 25, the family asked first Bedford Village Elementary School principal Karen Eldon, then district superintendent Dr. Jere Hochman, if their son could be home-schooled or moved to another district school.

The father said he was told that the administration said that home-schooling wasn’t an option because medical documents weren’t available to prove that something had happened requiring their son to be home-schooled.

When the father asked whether his son could be transferred to Pound Ridge Elementary School, he said he was referred to Dr. Hochman, who advised that the student was required to attend the school nearest his geographical residence, which was Bedford Village Elementary School.

The father also said that he asked for his son to be separated from the alleged bully but his request was denied. “I wanted the kids separated,” he said last week. “It wasn’t important to me whether [my son] moved or the bully moved.”


Check-in sheets at issue

In a Deeember 2013 statement to the court, Ms. Eldon said the plaintiff “never reported any problems to the psychologist about any issues.”

In addition, Ms. Eldon said the plaintiff “actually instigated” the incident that was said to have occurred on the school bus on April 13, 2011. 

She said that one of the students identified as an alleged bully was assigned a one-on-one monitor and separated from other third-graders.

“It is respectfully submitted that the school district took all appropriate measures to protect the safety” of the plaintiff,” she said.

In her December 2013 statememt, Ms. Eldon said that BVES personnel launched a monthlong effort in May 2011 to create 23 check-in sheets, which were endorsed by district officials, Dr. Hochman and Dr. Edward Escobar, the district’s director of pupil personnel services. These were intended to show proper care for the plaintiff. The principal arranged for the plaintiff to visit the school psychologist Dr. Jennifer Nielson at the end of each day to fill out the daily check-in sheet.

The check-in sheets were said to  allow the plaintiff to inform Dr. Nielson whether his school day was “challenging,” “okay” or “really great.”

The father of the plaintiff in his Feb. 26, 2014 statement, said that he received the check-in sheets from the district reporting his son’s mood throughout May 2011.

But during the course of the legal proceedings, according to the father, a second version of the check-in sheets was obtained from Dr. Hochman’s office on Feb.15, 2012.

According to the father, the version of the check-in sheets he obtained from the superintendent’s office contained a “forged” version of one of the check-in sheets, with a distinctly different handwriting and certain elements from the original sheet omitted.

“Unfortunately for the Bedford defendants, the wrongdoer left a paper trail by not destroying the original 5/18/11 check-in sheet which previously and correctly displayed plaintiff’s child-like ‘Y,’” stated the father in his Feb. 26, 2014 response. “Version 2 of the May 18, 2011 check-in sheet is an alarming document that was improperly created.”

The father states in his Feb. 26 filing that in December 2013, the Bedford defendants tried to distance themselves from the alleged forged sheets delivered to him in 2012 by “failing to disclose these telltale documents to the court.”

In his Feb. 26, 2014 filing, the father states: “If the court adopts these inferences, as we believe it should, this episode taints defendants’ motion, destroys credibility and defeats summary judgment because a credibility issue can rarely be resolved as a matter of law,” the father states. “We respectfully ask that the court consider this troublesome issue of credibility as a first order of business.”

“I think they were trying to sanitize the record,” the father said in the phone interview.


District denies responsibility for injuries

In its most recent filing, on Feb. 28, the school district said that allegations that the check-in sheet was forged “must be rejected as guesswork on plaintiffs’ part.”

The school district also states that the check-in sheet happened “after the fact,” that is, after the groin injury to the plaintiff alleged to have occured in February. “It is well-settled that post accident remedial measures cannot be considered as evidence in a personal injury action,” states the district.

Lawyers for the district seek to dismiss the case, stating that the plaintiffs failed to establish a “causal link” between their son’s injury and the incidents at Bedford Village Elementary School.

The district states that despite the father’s “lengthy arguments,” evidence does not supply “a requisite nexus between the negligent supervision allegedly attributable to the school district” that related to the plaintiff’s injuries.

The district says that the plaintiff’s family failed to provide medical evidence to support their claims.

The district also states that the family is not qualified to determine the origin of their son’s medical condition and that the father’s statements are “nothing more than his personal opinion as a layman and not worthy of consideration.”

According to the father, his son, now 11, repeated fourth grade because of his absenteeism at Bedford Village Elementary School. “I had no choice but to take my son out of the public school and put him in the private school,” the father said last Friday.

“He has done extremely well and has thrived at the private school. He has no disciplinary record. He’s enjoying it there. It’s a completely different environment. We’re having a very positive experience.”


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District denies lawsuit claims

By R.J. MARX

On Wednesday, lawyer Dennis O’Connor of O’Connor, McGuinness, Conte, Doyle, Oleson, Watson and Loftus LLP, based in White Plains, representing the Bedford Central School, responded to claims in a case brought by a Bedford family who say their family was injured by a series of alleged bullying incidents at Bedford Village Elementary School.

“The medical records indicate no medical treatment for any injury allegedly sustained at the school,” said Mr. O’Connor in a telephone interview. “This is what we call a case of alleged ‘lack of supervision.’ We deny that the students were improperly supervised, and we deny that any injury was suffered by the plaintiff as a result of anything that happened at school. Our position is that the supervision was perfect and the boy has no injuries.”

“He says he was punched in the groin,” said Mr. O’Connor on behalf of the school district. “Yet at his deposition he said he was ‘just fooling around on the school bus.’

“The testicular torsion is a congenital medical condition,” Mr. O’Connor said. “He did have surgery, but there’s not any doctor’s statement there that says it’s related to trauma.”

Mr. O’Connor said that a claim that the boy was victim of an assault in June 2011 never happened and that the boy’s injury, said to result in a deviated septum, was actually the result of an accident at home.

“I’ve taken his deposition and I’ve seen the medical records,” said Mr. O’Connor. “The medical records that we received indicate that he got hit by a baseball hit by his brother. There is no medical proof that indicated anything happened in school. That’s totally fabricated.”

He responded to a charge that the district would not transfer their child to another elementary school to avoid the alleged incidents. “They asked to have him transferred,” said Mr. O’Connor. “Generally the school district does not transfer students, and in this case there was no reason to transfer the student to another elementary school as the supervision at his school was proper.”

Mr. O’Connor said that a school checklist — administered and allegedly altered by district staff — was part of the district’s standard of care. “We refute that any records were changed,” he said. “We categorically deny that any records were changed or removed, contrary to whatever the plaintiffs say. Our care was perfect.

“We await the decision of the Supreme Court judge who will rule on our motion for summary judgment,” said Mr. O’Connor.