The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION Upon the foregoing documents, it is This is an action by plaintiff, Martha Edwards, to recover damages for the injuries and accompanying pain and suffering she allegedly sustained as a result of an accusation of corporal punishment and subsequent disciplinary proceedings. Plaintiff is asserting claims of malicious prosecution, slander, intentional infliction of emotional distress, negligence, prima facie tort, and a violation of Article I, §11 of the New York State Constitution. Defendants, The Department of Education of the City of New York (“DOE”), the Board of Education of the City School District of the City of New York (“Board”), and Anaise Fernandez (“Fernandez”) (collectively “defendants”)1, move pursuant to CPLR §§3211(a)(2) and (7) to dismiss the complaint in its entirety for the failure to state a cause of action. Factual Background: In September 2017, plaintiff worked as a pre-K teacher at PS. 191, the Riverside School for Makers and Artists. Plaintiff alleges that during this time, Fernandez was a paraprofessional at PS. 191 and, at plaintiff’s request, Fernandez was assigned to work in plaintiff’s classroom. Plaintiff further alleges that one of her students, Student A, was a four-year-old with severe and aggressive behavioral issues. Plaintiff contends that throughout the 2017-2018 school year, Student A had multiple incidents per week which involved physical acts towards both plaintiff and Fernandez. The principal at PS. 191, Lauren Keville (“Keville”), was aware the school was on the “VADIR list”, a list of schools that had Violent or Disruptive Incident Reporting data, yet allegedly failed to provide appropriate support to plaintiff. Plaintiff also contends that during her assignment with the student, Fernandez exhibited frustration and anger. Plaintiff claims that despite having a cordial professional relationship at the beginning of the school year, the relationship with Fernandez deteriorated after the plaintiff spoke to the administration about Fernandez using her phone in class and leaving without informing her. It is alleged that on or about December 10, 2017, Keville received a call from Fernandez who accused plaintiff of having slapped Student A across the face two months prior, on or about October 27, 2017. It is further alleged that Fernandez informed Keville that the plaintiff had put her finger to her mouth as if to tell Fernandez to remain silent. However, plaintiff claims that she was absent from school on both October 26, 2017, and October 27, 2017. As a result of this accusation, Keville filed a report with the Online Occurrence Reporting System (“OORS”) and the DOE agency, the Office of Special Commissioner of Investigations, began an investigation. Plaintiff alleges that she was interviewed in connection with the investigation on or about February 27, 2018. On April 22, 2019, plaintiff alleges that she received 3020-a charges, which included a charge that plaintiff had slapped Student A and indicated Fernandez should stay quiet. On the same date, plaintiff allegedly received a letter which determined there was probable cause. However, plaintiff contends that the DOE did not follow the applicable procedures, codified in Education Law 3020 and 3020-a(2)(a). Thereafter, on January 9, 2021, plaintiff was subjected to a 3020-a hearing where it is alleged that the DOE sought her termination. Fernandez provided testimony at that hearing. Plaintiff contends that the Board’s Special Investigator who was in charge of the investigation, James McCabe (“McCabe”), never attempted to verify or confirm whether the plaintiff was present at school on the date of the alleged incident. On April 09, 2021, the arbitrator dismissed all charges/specifications and held that DOE did not have just cause under Education Law 3020-a to discipline or discharge the plaintiff (NYSCEF Doc. No. 14). Plaintiff claims that despite this favorable award, she received an email, on June 21, 2021, notifying her that she was reassigned and could not get summer positions, per session pay, and other benefits (NYSCEF Doc. No. 15). Plaintiff allegedly filed a notice of claim on June 25, 2021, and filed the summons and complaint on July 06, 2022. Discussion: Defendants now move, pursuant to CPLR §§3211(a)(2) and (7), to dismiss the complaint as time-barred and for failing to state a cause of action. On a motion to dismiss pursuant to CPLR §3211, the pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, accord plaintiffs the benefit of every favorable inference, and determine whether the facts alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 87 [1994]). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). Malicious Prosecution: Plaintiff has alleged a claim of malicious prosecution, arising out of the 3020-a charges and administrative proceeding. The one-year statute of limitations for a malicious prosecution claim begins to run upon the favorable termination of the proceeding which serves as the basis of the claim (Syllman v. Nissan, 18 AD3d 221, 222 [1st Dept 2005]). On April 9, 2021, the arbitration award was issued in plaintiff’s 3020-a proceeding and the statute of limitations period commenced (see NYSCEF Doc. No. 14). Plaintiff filed a notice of claim on June 25, 2021, and the summons and complaint on July 6, 2022. The malicious prosecution claim is timely as it was brought within the applicable one-year and ninety-day period (Gen. Munic. Law §50-i [1] [c]). Defendants allege that the malicious prosecution claim should be dismissed as there was no criminal prosecution. Contrary to defendants’ contention, a malicious prosecution claim can be premised on prior civil proceedings, (People’s Capital and Leasing Corp. v. 1 800 Postcards, Inc., 162 AD3d 560, 560 [1st Dept 2018]) as well as prior administrative proceedings (Perryman v. Vil. of Saranac Lake, 41 AD3d 1080, 1081 [3d Dept 2007]). The tort of malicious prosecution requires a showing that, (1) the commencement or continuation of a proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the plaintiff, (3) the absence of probable cause for the proceeding, (4) actual malice (Facebook, Inc. v. DLA Piper LLP (US), 134 AD3d 610, 613 [1st Dept 2015]). A plaintiff must allege and prove a special injury (Id.). Plaintiff has adequately alleged the first two elements of commencement of a proceeding and a favorable termination. Plaintiff has alleged that Fernandez made a report of child abuse, corporal punishment, neglect, and mistreatment and based on these accusations, Keville reported the incident and contacted the Special Commissioner of Investigation. Plaintiff has adequately alleged that McCabe commenced an investigation, albeit incomplete and unprofessional, yet substantiated the charges. Finally, plaintiff has sufficiently alleged that based on the accusations by Fernandez, a 3020-a proceeding was commenced and was ultimately terminated in her favor. However, as to the DOE, the Board, the City, and McCabe, the plaintiff has failed to establish the third element of showing the absence of probable cause. With respect to probable cause, a plaintiff must allege that the underlying action was filed with a purpose other than the adjudication of a claim and that there was an entire lack of probable cause in the prior proceeding (Engel v. CBS, Inc., 93 NY2d 195, 204 [1999] [emphasis added]). Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable person in the belief that he has lawful grounds for proceeding in the manner complained of (see Facebook, Inc. v. DLA Piper LLP (US), 134 AD3d 610, 614 [1st Dept 2015]). The burden of proof to establish a want of probable cause is on the plaintiff, and the lack of probable cause must be patent (Id.). In the complaint, plaintiff alleges that the claim lacked probable cause, and was brought out of actual malice. Plaintiff alleges that the 3020-a charges and proceeding were commenced against her based on the false statements and false information provided by Fernandez. Notably, the falsity of one allegation of a complaint does not support an inference of malice where there existed probable cause for the underlying action as a whole (Wilhelmina Models, Inc. v. Fleisher, 19 AD3d 267, 270 [1st Dept 2005]). Plaintiff has not included any allegations sufficient to demonstrate the patent and entire lack of probable cause underlying the defendants’ investigation and institution of the prior proceeding based on the accusations and charges. The same cannot be said regarding defendant Fernandez. The complaint alleges that Fernandez falsely told the principal that the plaintiff had slapped student “A” in the face, and that it was a “made-up incident.” The complaint further alleges that plaintiff’s relationship had deteriorated with Fernandez, thereby providing at least some scant support to the malice element. Therefore, accord plaintiff the benefit of every favorable inference, the malicious prosecution claim against Fernandez should not be dismissed at this early stage of litigation. Slander: Plaintiff claims that Fernandez intentionally and maliciously said and published a false report of child abuse, corporal punishment, neglect and mistreatment. Plaintiff also includes allegations that Fernandez lied under oath and published numerous false statements. The statute of limitations for slander and libel is one year, which begins to run on the date the statement is first uttered or published (Casa de Meadows Inc. (Cayman Is.) v. Zaman, 76 AD3d 917, 920 [1st Dept 2010]; Egleston v. Kalamarides, 58 NY2d 682, 684 [1982]). Plaintiff’s claim of slander is time-barred. The actionable statement was made on December 10, 2017, when Fernandez first reported the incident to Keville. On April 22, 2019, plaintiff alleges that she received the 3020-a charges which contained the accusations in writing. As the statement was first made and first published more than a year before the suit was commenced, these claims are untimely. Plaintiff claims that the republication of a statement may give rise to a new cause of action when the following factors have been met: the subsequent publication is intended to and actually reaches a new audience, the second publication is made on an occasion distinct from the initial one, the republished statement has been modified in form or content, and the defendant has control over the decision to republish (Martin v. Daily News L.P., 121 AD3d 90, 103 [1st Dept 2014]). However, plaintiff has failed to include allegations to demonstrate that these factors were met. Plaintiff’s allegation that, the “corporal punishment allegations must have been repeated post April 9, 2021…because [p]laintiff was unable to obtain per session work and summer work and still unable to obtain these benefits even after the positive arbitration award”, is speculative and conclusory (see complaint
