You are on page 1of 18

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF DUTCHESS
----------------------------------------------------------------------x
In the Matter of JAMES HARRIS, TIMOTHY
LIEBRAND, JR.,JOHN ROY SCHLESSMAN, and
WILLIAM DORR,
Index No. ___________
Plaintiffs,
-againstVERIFIED COMPLAINT
DUTCHESS COUNTY BOARD OF COOPERATIVE
EDUCATIONAL SERVICES; JOHN PENNOYER,
individually and in his official capacity as BOCES
District Superintendent; MITCHELL SHRON,
individually and in his official capacity as
Principal/Supervisor of BOCES Career & Technical
Institute; and STEPHEN OCONNOR,
Defendants.
----------------------------------------------------------------------x
By and through their counsel, SUSSMAN AND WATKINS, plaintiffs JAMES HARRIS,
TIMOTHY LIEBRAND, JR., JOHN ROY SCHLESSMAN AND WILLIAM DORR, for their
complaint, state as follows:
NATURE OF THE ACTION
1. This is an action to recover damages resulting from defendants fraudulent and deceptive
business practices, whereby they fraudulently misled and induced plaintiffs, all of whom are
classified with learning or other disabilities, to enroll and remain in a welding and fabrication
program based on the false pretenses that defendants would administer to them the American
Welding Society (AWS) National Competency Exam and submit the same to AWS for review
and, upon passing that test and otherwise successfully completing the course, plaintiffs would
receive certification from AWS, a nationally renowned industry and accreditation organization.

2. Despite representing to plaintiffs that AWS would review plaintiffs final exams and issue
certifications for passing grades, defendants never intended to send these tests to AWS for review
and, in fact, never did.
3. In an attempt to cover up their fraud, and in furtherance thereof, defendants provided
plaintiffs Harris and Liebrand with fake and fraudulent certificates, bearing the AWS logo and
purporting to be issued by AWS. In fact, AWS never issued or authorized such certificates and,
upon information and belief, defendants used document-manipulation techniques to generate the
fraudulent certificates.
4. Plaintiffs now assert causes of action against defendants under New York General Business
Law 349 and 350 and for common law fraud and negligent misrepresentation to recover
economic, non-economic, exemplary and punitive damages, as well as reasonable attorneys fees
and costs, attributable to defendants fraudulent and deceptive conduct.
PARTIES
5. Plaintiff JAMES HARRIS is a male of legal age and resides in the Town of Wappingers
Falls, County of Dutchess, State of New York, which is within the jurisdiction of this Court. At
all relevant times, Harris resided within the jurisdiction of Wappingers Central School District and
Dutchess BOCES and, except for his attendance at BOCES, has been home-schooled since he was
of school age.
6. In the fifth grade, Harris school districts committee on special education (CSE)
classified him as Learning Disabled and developed and Individualized Educational Program
(IEP) for him. Though he was not so classified during the 2010/11 and 2011/12 school years,
prior to the start of the 2011/12 school year, he had also been diagnosed by a neurologist with

Attention Deficit Disorder (ADD) and Aspergers Syndrome and, upon information and belief,
BOCES was aware of these diagnoses at that time.
7. Plaintiff TIMOTHY LIEBRAND, JR. is a male of legal age and resides in the Town of
Staatsburg, County of Dutchess, State of New York, which is within the jurisdiction of this Court.
At all relevant times, Liebrand resided within the jurisdiction of Hyde Park Central School District
and Dutchess BOCES and, except for his attendance at BOCES, attended FDR High School.
8. At all relevant times, Liebrand was classified by his school district as having a Learning
Disability and had an IEP.
9. Plaintiff JOHN ROY SCHLESSMAN is a male of legal age and resides in the Town of
Poughkeepsie, County of Dutchess, State of New York, which is within the jurisdiction of this
Court. At all relevant times, Schlessman resided within the jurisdiction of Spackenkill Union Free
School District and Dutchess BOCES.
10. At all relevant times, Schlessman was classified by his school district as having Attention
Deficit Hyperactivity Disorder (ADHD) and a Learning Disability and had an IEP.
11. Plaintiff WILLIAM DORR is a male of legal age and resides in Town of Poughquag,
County of Dutchess, State of New York, which is within the jurisdiction of this Court. At all
relevant times, Dorr resided within the jurisdiction of Arlington Central School District and
Dutchess BOCES and, except for his attendance at BOCES, attended Arlington High School.
12. At all relevant times, Dorr was classified by his school district as having a Learning
Disability and had an IEP.
13. Defendant DUTCHESS BOARD OF COOPERATIVE EDUCATIONAL SERVICES
(BOCES) is a duly constituted educational corporation formed pursuant to New York Education
Law and provides educational and vocational services and instruction to students of all the public

school districts within the County of Dutchess, State of New York and to nonstudents and high
school graduates as well. Its principal place of business is in the City of Poughkeepsie, County of
Dutchess, State of New York, which is within the jurisdiction of this Court. It may sue and be
sued.
14. Defendant JOHN PENNOYER is a male of legal age and, upon information and belief,
resides within the jurisdiction of this Court. At all relevant times, he was the Superintendent of
Dutchess BOCES.
15. Defendant MITCHELL SHRON is a male of legal age and, upon information and belief,
resides within the jurisdiction of this Court. At all relevant times, he was the Principal/Supervisor
of BOCESCareer & Technical Institute (CTI).
16. Defendant STEVEN OCONNOR is a male of legal age and, upon information and belief,
resides within the jurisdiction of this Court. At all relevant times, he was the instructor of BOCES
welding and fabrication program.
JURISDICTION
17. On July 11, 2013, plaintiffs commenced a special proceeding in this Court pursuant to New
York Education Law 3813(2-a) and New York General Municipal Law 50-e(5) and (7) seeking
leave to serve a late notice of claim (see Matter of Harris, et al. v. Dutchess County BOCES, et
al., Index No. 4112/2013).
18. By Decision and Order dated April 4, 2014, the Court (Hon. Peter M. Forman, A.J.S.C.)
granted plaintiffs petition.
19. On April 23, 2014, plaintiffs timely served their Verified Notice of Claim upon defendants.
A copy of the Verified Notice of Claim and Affidavits of Service are annexed hereto as Exhibit 1
and hereby incorporated by reference herein and made part hereof.

20. More than thirty days have elapsed since plaintiffs served their Verified Notice of Claim
and defendants have refused or neglected to make an adjustment or payment thereof.
21. On May 16, 2014 and May 22, 2014, defendants conducted examinations of each plaintiff
pursuant to New York General Municipal Law 50-h.
FACTUAL ALLEGATIONS
22. During the 2010/11 and 2011/12 school years, BOCES CTI offered a welding and
fabrication program (the Welding Program).
23. Plaintiffs Liebrand and Dorr were enrolled in the Welding Program during the 2010/11 and
2011/12 school years. They successfully completed the program in June 2012.
24. Plaintiffs Harris and Schlessman were enrolled in the Welding Program during the 2011/12
school year. They successfully completed the program in June 2012.
25. At all relevant times, and specifically in 2010, 2011 and 2012, BOCES advertised on its
website that its Welding Program offered the American Welding Society (AWS) National
Competency Exam.

A copy of the website is attached hereto as Exhibit 2 and is hereby

incorporated by reference herein and made a part hereof.


26. At all relevant times, and specifically, in 2010, 2011 and 2012, BOCES advertised on its
website that students in the Welding Program would visit[] . . . local production facilities in the
Hudson Valley area.
27. At various times during the 2010/11 and 2011/12 school years, BOCES agents, including
Shron and OConnor, represented to plaintiffs that their successful completion of the course,
including passage of the AWS National Competency Exam as reviewed by AWS, would earn them
AWS certification as either a Level 1 or Level 2 Entry Welder.

28. Plaintiffs, and each of them, relied upon defendants written and oral representations in
deciding to enroll in the Welding Program and to remain in and complete the class.
29. During their participation in the Welding Program, plaintiffs, and each of them, held a
legitimate expectation that they would receive AWS certification if they successfully completed
the Welding Program and passed the AWS National Competency Exam (or other AWS-endorsed
exam), which they believed defendants would administer to them at the end of the 2011/12 school
year.
30. Contrary to BOCES website advertisement and its agents verbal representations, and
unbeknownst to plaintiffs, during the 2010/2011 and 2011/2012 school years, defendants did not
comply with AWS standards and curricula, did not administer the AWS National Competency
Exam, did not submit plaintiffs tests or materials to AWS for grading, review or certification and
did not provide any avenue for plaintiffs to receive certification from AWS or any other industry
organization or body.
31. Contrary to the website advertisement, at no time during the 2010/11 or 2011/12 school
year did students in the Welding Program visit any local production facilities.
32. Upon information and belief, defendants, and each of them, were aware of the content of
BOCES website, including the claim that the Welding Program offered the National Competency
Exam and the claim that Welding Program students would visit local production facilities as part
of the class curriculum.
33. Upon information and belief, despite the claims asserted on BOCES website, defendants,
and each of them, knew that the Welding Program did not offer the AWS National Competency
Exam (or offer any avenue for students to receive AWS certification) and that students in the

Welding Program were not slated to visit any local production facilities and, thus, that such claims,
as existing on BOCES website, were materially false.
34. Plaintiffs, and each of them, successfully completed the Welding Program in June 2012,
including having passed a final exam, which was represented to them by defendant OConnor, and
believed by them, to be an AWS exam, but was not.
35. Despite this fact, upon graduating in mid-June 2012, none of the plaintiffs received any
bona fide certification of any kind, or any document or writing purporting to be any type of
certification, from AWS or any other certifying organization or body.
36. Instead, plaintiffs, and each of them, believed that their certifications were forthcoming
from AWS.
37. On or about August 23, 2012, Liebrands father followed up with BOCES through a
colleague in the High Park Central School District, of which he was a member of the Board of
Education at the time.
38. In response, BOCES issued to Liebrand, and delivered through Liebrands fathers
collegeague, a certificate dated June 12, 2012, bearing the AWS logo and indicating that Liebrand
had completed the AWS SENSE program and attained Level 1 Entry Welder status. A copy
of the certificate defendants issued Liebrand is attached hereto as Exhibit 3 and is hereby
incorporated by reference herein and made a part hereof.
39. On or about June 12, 2012, Harris mother, Diane, inquired with defendant OConnor about
the status of her sons AWS certificate.
40. In response to Mrs. Harris June 12, 2012 inquiry, despite knowing that Harris final exam
was never submitted to AWS for review or certification, OConnor responded that Harris would
receive his AWS certificate by August 2012.

41. After Harris did not receive anything from AWS in August or September 2012, in early
October 2012, his mother attempted to follow up with OConnor about the status of Harris AWS
certificate but he did not return her call.
42. Thereafter, on about November 2, 2012, Mrs. Harris called defendant Shron directly to
follow up on her sons AWS certificate.
43. Despite knowing that Harris final exam was never sent to AWS for review or certification
(nor any plaintiffs or other Welding Program students exam), Shron told Mrs. Harris, in sum and
substance, that some tests had returned from AWS and that he would need to check the class list
from OConnor to see if Harris had been received and would call her back after doing so.
44. On or about November 7, 2012, after Shron had failed to call Mrs. Harris back, Mrs. Harris
called Shron and left a message to follow up.
45. A few hours later, Shrons secretary called Mrs. Harris back and informed her that she
would be sending Harris certificate, which has AWS logo on it.
46. On or about November 9, 2012, Harris received the certificate issued by BOCES as
indicated by Shrons secretary; it is dated June 12, 2012, bears the AWS logo and indicates that
Harris had attained Level 1 Entry Welder status. A copy of the certificate defendants issued
Harris is attached hereto as Exhibit 4 and is hereby incorporated by reference herein and made a
part hereof.
47. On or about November 16, 2012, Harris mother received confirmation from AWS that the
organization did not issue or authorize the issuance or the certificate BOCES sent Harris, nor did
it review his final exam or any exam taken by any Welding Program student that year.
48. On or about November 20, 2012, Mrs. Harris contacted the New York State Attorney
Generals office and disclosed defendants deceptive and fraudulent practices, including, inter

alia, BOCES misrepresentations on its website and by its agents and its issuance to her son of
fake AWS certificate.
49. Similarly, on or about December 6, 2012, Harris mother wrote each member of the
BOCES Board of Trustees and Pennoyer to inform them of these practices.
50. Pennoyer responded to Mrs. Harris letter and, on or about December 10, 2012, met with
her and her husband, James Harris, to discuss the same, but refused to take any corrective
measures.
51. On January 9, 2013, BOCES, through Pennoyer, signed an Assurance of Discontinuance
with the Attorney General, by which it settled the Attorney Generals claims of deceptive business
practices and false advertising under New York General Business Law 349 and 350. A copy
of the Assurance of Discontinuance is annexed hereto as Exhibit 5 and made a part hereof, and the
factual allegations set forth in Paragraphs 1 through 7 therein are hereby incorporated by
reference and reallaged herein.
52. On or about March 25, 2013, the Attorney Generals office issued a press release
publicizing its investigation of BOCES and the terms upon which BOCES agreed to settle the
matter.
53. During his instruction of the Welding Program defendant OConnor acted in an entirely
unprofessional manner, including, upon information and belief, without limitation, the following:
a. OConnor regularly made racial and sexual remarks to the class and, when making
sexual remarks told the one female in the class earmuffs (i.e., to put her hands
over her ears);
b. On at least two occasions, OConnor insinuated in front of the entire class that
Harris is homosexual, which he is not;

c. OConnor was aware of and condoned drug possession and use on school grounds;
d. OConnor regularly slept in class and ignored the students, assigning work to, and
checking the work of, only a small group of students who he has working for him
outside of school (he has his own business);
e. OConnor had students work on his own personal projects (e.g., working on his
personal truck, boat and lawnmower);
f. OConnor regularly yelled at and berated Harris in front of the entire class; and
g. When confronted by his students about his sleeping in class and other improprieties,
OConnor claimed, in sum and substance, that he only has the job for the benefits
and that he would have to be caught in a sexual act with a student in class to be
fired.
54. Upon information and belief, defendants Pennoyer, Shron and OConnor remain employed
by BOCES in their respective positions held during the time of the events alleged herein and none
have been disciplined or otherwise reprimanded for their conduct.
55. In light of their disabilities, plaintiffs, and each of them, relied heavily upon receiving
vocational training from BOCES to advance their employment prospects and, thus, relied heavily
upon defendants representation that they would receive AWS certification if they passed the final
exam and otherwise successfully completed the Welding Program.
56. By failing to administer the AWS national competency exam or otherwise provide
plaintiffs the opportunity to receive AWS certification as represented, defendants, and each of
them, have injured plaintiffs in their business and/or property by negatively affecting their
employment prospects and squandering two years (one year for Harris and Schlessman) of their
educational/vocational training during which time they could have enrolled in a bone fide welding

10

program that would have provided such opportunity for certification or enrolled in other vocational
training in the same or different field that would have provided better employment prospects.
57. By dint of defendants conduct as set forth herein plaintiffs, and each of them, have suffered
economic damages, including, without limitations, loss of employment opportunity, loss of time,
loss of educational opportunity and the cost of taking a bona fide welding program providing the
same level of training and qualifications purportedly, but not actually, available in the Welding
Program.
58. By dint of defendants conduct as set forth herein, plaintiffs, and each of them, have
suffered noneconomic damages, including without limitations, embarrassment, humiliation,
anxiety and emotional distress.
59. In engaging in the conduct set forth herein, defendants, and each of them, acted maliciously
and in wonton or reckless disregard for plaintiffs rights.
AS AND FOR A FIRST CAUSE OF ACTION
General Business Law 349
Against all Defendants
60. Plaintiffs hereby reallege and incorporate herein by reference each and every allegation set
forth in paragraphs 1 through 59 above.
61. New York General Municipal Law 349 prohibits [d]eceptive acts or practices in the
conduct of any business, trade or commerce or in the furnishing of any service in [the State of New
York].
62. By offering educational and vocational services, including the Welding Program, to not
only public school students, but also post-high school graduates in exchange for payment of a
monetary tuition fee, BOCES engaged in consumer oriented conduct.

11

63. Because they were false, the claims set forth on BOCES website that the Welding Program
featured the AWS National Competency Exam and that students in the Welding Program would
visit local production facilities as part of the curriculum were materially misleading.
64. Because they were false, defendants oral representations to plaintiffs that they would take
the AWS National Competency Exam, or some other AWS endorsed-test, were materially
misleading.
65. Based upon the claims on defendants website and oral representations as set forth herein,
plaintiffs, and each of them, reasonably believed that they would be administered the AWS
National Competency Exam, or some other AWS-endorsed test, and that, upon passing the same
and successfully completing the Welding Program, would receive certification form AWS.
66. Based upon the claims on defendants website as set forth herein, plaintiffs, and each of
them, reasonably believed they would visit local production facilities as part of the Welding
Program curriculum.
67. Plaintiffs, and each of them, relied on defendants website advertisements and oral
representations in deciding to enroll in, remain in and complete the Welding Program.
68. Because they did not take the AWS National Competency Exam, or any other AWSendorsed test, Plaintiffs did not have the opportunity to obtain AWS certification as represented to
them and as they reasonably believed they would based upon such representations.
69. Because they did not visit local production facilities as part of the curriculum, plaintiffs
were deprived the educational experience appurtenant to such visits.
70. In furtherance of their fraudulent and deceptive practices, defendants knowingly issued
fake AWS certificates to plaintiffs Harris and Liebrand, thus, reinforcing their beliefs that that they
had taken an AWS-endorsed test when, in fact, they had not.

12

71. By dint of defendants fraudulent and deceptive practices, plaintiffs, and each of them,
suffered economic and non-economic damages.
AS AND FOR A SECOND CAUSE OF ACTION
General Business Law 350
Against all Defendants
72. Plaintiffs hereby reallege and incorporate herein by reference each and every allegation set
forth in paragraphs 1 through 71 above.
73. New York General Municipal Law 350 prohibits [f]alse advertising in the conduct of
any business, trade or commerce or in the furnishing of any service in [the State of New York].
74. Because they were false, the claims set forth on BOCES website that the Welding Program
featured the AWS National Competency Exam and that students in the Welding Program would
visit local production facilities as part of the curriculum were materially misleading.
75. Plaintiffs, and each of them, relied on defendants website advertisements in deciding to
enroll in, remain in and complete the Welding Program.
76. Because they did not take the AWS National Competency Exam, or any other AWSendorsed test, Plaintiffs did not have the opportunity to obtain AWS certification as represented to
them and as they reasonably believed they would based upon such representations.
77. Because they did not visit local production facilities as part of the curriculum, plaintiffs
were deprived the educational experience appurtenant to such visits.
78. By dint of defendants fraudulent and deceptive practices, plaintiffs, and each of them,
suffered economic and non-economic damages.

13

AS AND FOR A THIRD CAUSE OF ACTION


Common Law Fraud
Against all Defendants
79. Plaintiffs hereby reallege and incorporate herein by reference each and every allegation set
forth in paragraphs 1 through 78 above.
80. Defendants misrepresented on BOCES website that the Welding Program offered the
AWS National Competency Exam when, in fact, they knew no such test, nor any other AWSendorsed test, would be administered.
81. Defendants orally misrepresented to plaintiffs that they would take the AWS National
Competency Exam when, in fact, they knew no such test, nor any other AWS-endorsed test, would
be administered.
82. Despite their written and oral representations to plaintiffs, defendants never intended to
submit any test taken by plaintiffs (or any other Welding Program student) to AWS or any other
industry certifying body for review.
83. Despite their written and oral representations to plaintiffs, defendants knew that no plaintiff
would obtain AWS certification, or be afforded the opportunity to do so, through their participating
in and completion of the Welding Program.
84. Defendants misrepresented on BOCES website that the students in the Welding Program
would visit local production facilities as part of the curriculum when, in fact, they knew no such
visits would take place.
85. Plaintiffs, and each of them, justifiably relied upon defendants misrepresentations of
material fact in deciding to enroll in, remain in and complete the Welding Program.
86. Defendant OConnors made a material misrepresentation of fact when, despite knowing
that Harris did not take the AWS National Competency Exam, or any other AWS-endorsed test,

14

that his final exam was never sent to AWS for review, nor would it be, and that no such certification
was forthcoming. he represented to Harris, through his mother, on or about June 12, 2012, that
Harris would receive his AWS certification by August 2012,
87. Defendant Shron made a material misrepresentation of fact when, despite knowing that
Harris did not take the AWS National Competency Exam, or any other AWS-endorsed test, that
his final exam was never sent to AWS for review, nor would it be, and that no such certification
was forthcoming, he represented to Harris, through his mother, on or about November 2, 2012,
that BOCES received back from AWS several tests and that he needed to check with OConnor on
Harris test to determine when his he would receive his certification.
88. Defendants made material misrepresentations of fact when, in August 2012 and November
2012, they issued fake AWS certificates to plaintiffs Liebrand and Harris, respectively.
89. Plaintiffs Harris and Liebrand justifiably relied upon defendants misrepresentations of
material fact in connection with the issuance of fake AWS certificates.
90. By dint of defendants fraudulent and deceptive practices, plaintiffs, and each of them,
suffered economic and non-economic damages.
AS AND FOR A FOURTH CAUSE OF ACTION
Negligent Misrepresentation
Against all Defendants
91. Plaintiffs hereby reallege and incorporate herein by reference each and every allegation set
forth in paragraphs 1 through 90 above.
92. As plaintiffs were enrolled in defendants Welding Program, defendants owed plaintiffs a
duty of care to ensure that their representations to plaintiffs about that program were factually
accurate.

15

93. Defendants written and oral representations to plaintiffs that they would be offered the
AWS National Competency Exam, or otherwise afforded the opportunity to obtain AWS
certification, were materially false.
94. Defendants written and oral representations to plaintiffs that they would visit local
production facilities as part of the Welding Programs curriculum were materially false.
95. Defendants OConnors and Shrons representations to Mrs. Harris regarding the issuance
of her sons AWS certificate were materially false.
96. Defendants issuance to Harris and Liebrand of fake AWS certificates was materially false.
97. By making materially false written and oral representations to plaintiffs as set forth herein,
defendants breached their duty of care to plaintiffs.
98. Plaintiffs, and each of them, justifiably relied upon defendants misrepresentations of
material fact in deciding to enroll in, remain in and complete the Welding Program.
99. Plaintiffs Harris and Liebrand justifiably relied upon defendants misrepresentations of
material fact in connection with the issuance of fake AWS certificates.
100.

By dint of defendants fraudulent and deceptive practices, plaintiffs, and each of

them, suffered economic and non-economic damages.


PRAYER FOR RELIEF
Wherefore, it is respectfully requested that this Court:
A. Assume jurisdiction of this action;
B. Empanel a jury to hear all claims;
C. Award plaintiffs compensatory damages, exemplary and punitive damages;
D. Award plaintiff the costs of this suit, including reasonable attorneys fees and litigation
expenses; and

16

E. Award plaintiff such other and further relief as the Court deems just and proper.
Dated: Goshen, New York
June 2, 2014
Respectfully submitted,
SUSSMAN AND WATKINS
Attorneys for Plaintiffs
By: ___________________________
Michael H. Sussman
SUSSMAN AND WATKINS
P.O. Box 1005
1 Railroad Avenue, Suite 3
Goshen, New York 10924
[Tel] (845) 294-3991
[Fax] (845) 294-1623
sussman1@frontiernet.net

17

VERIFICATION

STATE OF NEW YORK


COUNTY OF ORANGE

)
) ss.:
)

Michael H. Sussman, an attorney duly admitted to practice law in the State of New York,
being duly sworn, states:
I am the lead attorney for plaintiffs in this action. The foregoing complaint is true to my
own knowledge except as to matters therein stated on information and belief and as to those matters
I believe them to be true. The grounds of my belief as to all matters not stated upon my knowledge
are correspondence and other writings furnished to me by plaintiffs and interviews with plaintiffs
and other witnesses. This verification is not made by plaintiffs because no plaintiff resides in the
County of Orange, State of New York, where I maintain my primary office.

________________________
Michael H. Sussman
Attorney for Plaintiffs
Sworn to before me this
___ day of _______, 2014.

____________________
Notary Public

18

You might also like