UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X ANN PALAGONIA and THOMAS PALAGONIA, Parents and Guardians of their Minor Child, ERICA PALAGONIA, and ERICA PALAGONIA, Individually, MEMORANDUM & ORDER 08-CV-0791 (JS)(ETB) Plaintiffs,
-against-
SACHEM CENTRAL SCHOOL DISTRICT, SACHEM SCHOOL BOARD, DENISE DOLAN, individually and in her official capacity, and PAUL STELLINO, individually and in his official capacity,
Defendants. ---------------------------------------X APPEARANCES: For Plaintiffs: David Gordon, Esq. Gordon Law Office 300 Rabro Drive, Suite 138 Hauppauge, NY 11788
For Defendants: Jeltje DeJong, Esq. Kelly E Wright, Esq. Devitt Spellman Barrett, LLP 50 Route 111 Smithtown, NY 11787
SEYBERT, District Judge:
On February 26, 2008, Plaintiff minor, Erica Palagonia
(“Erica”), and her parents and guardians, Ann Palagonia (“Mrs.
Palagonia”) and Thomas Palagonia (“Mr. Palagonia”) (collectively
“Plaintiffs”), commenced this action. Plaintiffs claim violations
of Erica’s Fourteenth Amendment right to equal protection, her
rights under the Americans with Disabilities Act, as amended, 42
U.S.C. § 12101, et seq. (“ADA”), and her rights under the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et
seq. (“IDEA”), by the Sachem Central School District (“Sachem”),
its assistant principal, Denise Dolan (“Dolan”) and the coordinator
of student services, Paul Stellino (“Stellino”) (collectively
“Defendants”). Plaintiffs also allege violations of Article 89 of
the New York State Education Law (“NYEL”), New York Human Rights
Law (“NYHRL”), New York Civil Practice Laws and Rules Article 78
(“NYCPLR”), New York Penal Law § 240.55, and a claim for
intentional infliction of emotional distress. Plaintiffs’ claims
allegedly arise out of interactions between the Plaintiffs and the
Defendants regarding Erica’s absence from school, her disabilities
and the actions taken by the school in response.
Presently pending before the Court are Defendants’ motion
to dismiss pursuant to Rules 12(b)(2)1 and 12(b)(6) of the Federal
Rules of Civil Procedure and Plaintiffs’ motion to amend their
Complaint pursuant to Rule 15(a). For the following reasons, the
Court DENIES Defendants’ motion to dismiss without prejudice and
with leave to refile and GRANTS Plaintiffs’ motion to amend their
Complaint.
1 Although Defendants cite Rule 12(b)(2), the Court believes this citation is in error, as Defendants cite lack of subject matter jurisdiction, Rule 12(b)(1), as their basis for their motion.
2
BACKGROUND
At the time her claims accrued, Erica was a sophomore at
the Sachem East High School during the 2006-2007 school year. She
suffers from several disabilities, including severe depression,
anxiety and panic disorder, suicidal ideation, and Post-Traumatic
Stress Disorder, stemming from a physical assault she sustained in
June 2005. (Compl. ¶¶ 14-15.) Since the summer of 2006, Erica has
received psychiatric and psychological therapy, (Id. ¶ 17.), and
has suffered repeated panic attacks when confronted with having to
go to school. (Id. ¶ 18.)
On or about September 6, 2006, Erica’s treating
psychotherapist, Barbara Giannelli-O’Brien sent Dolan a letter,
informing Dolan of Erica’s disabilities and advising Dolan that
Erica should be home-schooled, effective immediately. On or about
the same day, Sachem sent its attendance officer, Susan Erdman
(“Erdman”) to Plaintiffs’ residence in Farmingville, New York.
Once inside the home, Erdman told Mrs. Palagonia and Erica that
Mrs. Palagonia was being “negligent as a parent” and that she
“could possibly face jail time for [her] wrongdoing.” (Id. ¶ 23.)
Shortly thereafter, on or about September 6, 2006, Sachem sent its
staff psychologist, Dr. Fern Miranda (“Miranda”), school social
worker, Diane Ricci (“Ricci”), and guidance counselor, Ms. Alba,
(“Alba”), to Plaintiffs’ home. During their visit, Plaintiffs
3
allege that Miranda, Ricci, and Alba observed Erica’s symptoms.
Plaintiffs further allege that they made Defendants aware of
Erica’s condition in other communications. (Id. ¶¶ 25-30.)
Shortly after Miranda’s, Ricci’s, and Alba’s visit, Mrs.
Palagonia attended a meeting at Sachem High School with Dolan,
Miranda, Ricci, and Alba. Mrs. Palagonia brought with her to the
meeting letters from Erica’s treating psychiatrist indicating that
Erica should be home-schooled for the first quarter of the school
year. On September 8, 2006, Erica began receiving home tutoring
from Sachem faculty. On or about November 29, 2006, however,
without explanation, Sachem unilaterally discontinued Erica’s home
tutoring. (Id. 36.) Despite Mr. and Mrs. Palagonia’s repeated
requests afterward, and further requests by Erica’s treating
psychiatrist, Erica never received home schooling again. The
District provided no satisfactory reason for discontinuing Erica’s
home tutoring.
A final meeting between Defendants and Mr. and Mrs.
Palagonia occurred on April 11, 2007. In that meeting, Dolan told
Plaintiffs: “I have a mind to call CPS [Child Protective Services].
You are a neglectful mother as far as Erica’s mental and
educational needs.” (Id. ¶ 48.) Dolan further stated that Child
Protective Services had the right to take Erica out of Mr. and Mrs.
Palagonia’s home and place her in a group home and force her to go
4
to school. (Id. ¶ 50.) On April 20, 2007, Plaintiffs allege that
either Dolan or Stellino contacted the Suffolk County Department of
Social Services, Child Protective Services Bureau, and filed an
intentionally false report alleging that Mrs. Palagonia was abusing
her daughter Erica. When the caseworker subsequently came to
Plaintiffs’ home for an investigation, the caseworker apologized to
Plaintiffs, stating that there was no evidence of abuse or neglect.
DISCUSSION
After Defendants submitted their motion to dismiss,
Plaintiffs submitted a letter motion to amend their Complaint,
seeking to add claims for retaliation under Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and under the
ADA. However, Plaintiffs did not submit a proposed Amended
Complaint with their motion. Defendants have not yet submitted an
Answer.
Under Rule 15(a) of the Federal Rules of Civil Procedure,
a party may amend his or her “pleading once as a matter of course
at any time before a responsive pleading is served . . . .” Fed.
R. Civ. P. 15(a). A motion to dismiss is not a responsive
pleading. See, e.g., Siklos v. Ne. Anesthesia Servs., P.C., 473 F.
Supp. 2d 494, 496 (S.D.N.Y. 2007); Barbara v. N.Y. Stock Exch.,
Inc., 99 F.3d 49, 56 (2d Cir. 1996); Thompson v. Carter, 284 F.3d
411, 416 at n.2 (2d Cir. 2002). Accordingly, Plaintiffs may amend
5
their Complaint.
In light of the Court’s decision to GRANT Plaintiffs
leave to Amend and Defendants’ prior submission indicating that, if
the Court granted Plaintiffs’ motion to amend Defendants would seek
to file an additional motion to dismiss, the Court DENIES
Defendants’ pending motion to dismiss without prejudice and with
leave to refile after Plaintiffs submit their Amended Complaint.
This will give the Defendants the opportunity to fully brief the
remaining issues and will conserve judicial resources in deciding
the motion to dismiss; the Court’s analysis of Plaintiffs’ newly
asserted claims will likely overlap considerably with its analysis
of Plaintiffs’ ADA and IDEA claims.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’
motion to dismiss without prejudice and with leave to refile and
GRANTS Plaintiffs’ motion to amend their Complaint. Plaintiffs
shall submit their Amended Complaint by April 17, 2009.
SO ORDERED.
/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J.
Dated: Central Islip, New York March 31 , 2009
6