Opinion
100969/06.
Decided October 7, 2010.
Jacqueline Mari, Esq., New York, NY, Mermelstein Horowitz, PA, Miami, FL, For Plaintiffs.
Wilson, Elser, Moskowitz, Edelman Dicker, White Plains, NY, For Defendants.
In this action for personal injuries as a result of sexual abuse, plaintiffs, A. Jones, an infant ("Jones"), by her father, Joseph E. Jones, Joseph E. Jones ("Mr. Jones"), and her birth mother Altanya Jones ("Mrs. Jones") (collectively the "plaintiffs") move pursuant to CPLR 3124, for an order compelling defendants Roman Catholic Archdiocese of New York d/b/a St. Paul's Catholic School ("NY Archdiocese"), Lynn Saunders ("Saunders"), Church of St. Paul ("St. Paul's"), and Church of St. Paul d/b/a St. Paul's Catholic School ("SPCS") to respond to plaintiffs' supplemental interrogatories and fourth notice to produce (motion seq. no. 007).
By motion sequence number 008, plaintiffs move, pursuant to CPLR 3101(d), for an order granting their motion in limine to exclude the expert testimony of Paul Nassar, M.D. ("Dr. Nasser").
Defendants NY Archdiocese, St. Paul's and SPCS cross-move, pursuant to CPLR 3101 (d), for an order to strike portions of the affidavit and report of plaintiffs' expert, Edward Dragan ("Dragan") (motion seq. no. 008).
Defendants NY Archdiocese, St. Paul's and SPCS move, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against them (motion seq. no. 009). Alternatively, should the court dismiss the claims as against the NY Archdiocese, and otherwise deny the motion for summary judgment, defendants St. Paul's and SPCS move, pursuant to CPLR 503 and 511, for a change of venue to Richmond County, where St. Paul's is located.
Motion sequence numbers 007, 008 and 009 are consolidated herein for disposition.
For the following reasons, the motion for summary judgment (motion no. 009) is granted in part and denied in part, and the remaining motions and cross motion are denied.
Background
The Hiring of Saunders
As Saunders testified at her deposition, prior to working at SPCS, Saunders worked as a part-time assistant teacher at the Hawthorne School for special needs teenagers in Staten Island, NY In addition, she worked at her church as what she describes as a "minister of music" to youth and adults, and had been employed as a basketball referee for the youth leagues of the Catholic Youth Organization ("CYO"), the Jewish Community Center, the Police Athletic League and the New York City Public Schools. She worked in an after-school program at I.S. 49 as a part-time music teacher, and worked at Brooklyn College as an assistant basketball coach for two to three seasons.
According to the deposition testimony of SPCS principal, Mary Chiapperino ("Chiapperino"), in December 2002, Evelyn Diamond ("Diamond"), a teacher at SPCS, recommended Saunders to her. Diamond gave Chiapperino Saunders's resume. Diamond knew of Saunders through the CYO, where Saunders was a referee. Chiapperino also knew of Saunders's work with the CYO, and had been acquainted with her for many years. At that time, Chiapperino considered Saunders for substitute teaching.
Shortly after, Saunders came to the school to introduce herself formally. On her application, Saunders gave three personal references, Ava Robinson ("Robinson"), a mother of a student at SPCS who had known Saunders for years; Willie Hakin ("Hakin"); and Saunders' pastor, E.B. Alexander. Chiapperino contacted Robinson, who told Chiapperino that Saunders was a wonderful person. Chiapperino did not contact the other personal references.
Chiapperino did not confirm any of Saunders' prior work experience or contact any of her employment references. Chiapperino did conduct a "Safe Environment" background check, which did not indicate that Saunders had been engaged in any prior misconduct.
Chiapperino hired Saunders as a substitute teacher. For the remainder of that school year, Saunders substituted for SPCS several times. The following year, for the 2003-2004 school year, Saunders was hired as a part-time gym and music teacher.
Instances of Sexual Abuse
During the 2003-2004 school year, Jones was enrolled in the sixth grade at SPCS. During that year, Saunders was employed at SPCS as a part-time music and gym teacher for the entire school, i.e., kindergarten through the eighth grade.
As Jones testified at her deposition, at the end of the sixth grade year, Jones wrote Saunders a letter telling Saunders that she looked up to her as a role model because she played basketball and was a singer. Jones gave the letter to Saunders during school, in front of another teacher. In response, Saunders came into Jones's classroom and, in front of another teacher, kissed her on the cheek and gave her a Hallmark card. In the card, Saunders told Jones that she was special, and that she had never had someone look up to her before.
The following year, Saunders was again Jones's gym and music teacher. Jones was 12 years old, and in seventh grade. Saunders admitted at her deposition that during this school year she "developed emotional sexual feelings" for Jones. In November 2004, Saunders asked Jones's father for permission to see a Christmas play in Pennsylvania, along with a group from Saunders's church. After speaking with Jones's mother, Jones was permitted to go.
After the trip, Saunders drove Jones to a secluded location in Staten Island, where people go to view the Manhattan skyline. Jones testified that while in the car, Saunders caressed Jones's hand and asked Jones to put lotion on her hand. Jones declined.
Over the next several months, Saunders continued to spend time with Jones, and other female students, at SPCS beyond normal classroom time. The incidents, are as follows:
Jones testified at her deposition that Ms. Campbell, a SPCS teacher, found Jones alone with Saunders in the gymnasium when Jones should have been in Campbell's class. Campbell "was really mad," and told Saunders that she should not have let Jones stay regardless of whether Jones wanted to or not, and should have had Jones go back to her class.
Jones also explained that while on school premises, Saunders brought Jones to the steps of the stage in the auditorium/gymnasium, and laid Jones on top of her. Saunders was about to kiss her when Jones told her there were cameras in the gym, at which point Saunders grew concerned and had her leave the gym.
Saunders allowed Jones and other girls to skip class and spend time in the gymnasium at SPCS. Saunders admitted she allowed Jones to do this at least five times.
Jones also testified that on Valentine's Day, Saunders came to Jones's classroom and asked Jones's teacher to excuse her from class. She showed Jones a teddy bear, as though she intended to give to her.
One day when Saunders was substituting for a kindergarten class, she asked Jones's teacher to excuse Jones from class to assist her with the class.
According to Saunders, there were teachers who suspected Saunders of being too close to students. On one occasion, Chiapperino observed a student sitting on Saunders's knee. Chiapperino admitted that, although it was inappropriate, she never spoke to or disciplined Saunders about the incident.
Chiapperino testified at her deposition that she was also aware of a time when a seventh grade student skipped class to spend time alone in the SPCS gym with Saunders. This student received in-school detention for cutting class; however, there was no discussion with either the student or Saunders about allowing students to stay with her when they were supposed to be in class.
Saunders was also spending time with Jones outside of school, of which Mr. and Mrs. Jones were aware. Mrs. Jones testified at her deposition that while at school, Chiapperino mentioned to Mrs. Jones that she was excited about a newspaper article recognizing Saunders. Chiapperino told Jones's mother that Saunders was a good teacher. Jones's mother mentioned that Saunders spent time with Jones and her sister outside of school.
Jones also testified that Saunders took her to a number of basketball games where Saunders worked as a referee. On those occasions, the two discussed the subjects of singing and basketball. The two also went to about three movies together, once with Jones's younger sister. While at the movies, Saunders testified that she kissed Jones and caressed her thigh.
There were also occasions when Saunders removed Jones from the school before the end of the school day without signing Jones out or notifying school administrators. On one of these occasions, Saunders had Jones come into her home and brought her to the bedroom, where she sexually assaulted Jones.
In March 2005, Mrs. Jones discovered a sexually explicit text message from Saunders to Jones. Jones's parents contacted law enforcement and criminal charges were brought against Saunders for sexually abusing Jones. Saunders pled guilty to the charges, was convicted and is currently a registered sex offender.
SPCS's Reaction to the Abuse of Jones
Mrs. Jones testified that shortly after Saunders's arrest, Chiapperino conducted a principal-parent conference with the Joneses. During the meeting, Mrs. Jones testified that Chiapperino admitted to them that Saunders had engaged in inappropriate behavior; namely, the incident involving the student sitting on Saunders's knee, as well as the students spending time with Saunders when they were supposed to be at the courtyard during lunch.
Immediately after the arrest, Saunders was terminated from SPCS.
Discussion
In order to grant summary judgment, there must be no material or triable issues of fact presented. Ayotte v. Gervasio, 81 NY2d 1062 (1993); Esteva v. City of New York , 30 AD3d 212 (1st Dept 2006). The movant must proffer admissible evidence to make a prima facie showing that establishes the cause(s) of action "sufficiently to warrant the court as a matter of law in directing judgment." CPLR 3212 (b); see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Esteva, 30 AD3d 212. Once the moving party has made this showing, the burden is on the opposing party to demonstrate "the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman, 49 NY2d at 560; see also Sheridan v. Bieniewicz , 7 AD3d 508 (2d Dept 2004).
NY Archdiocese, St. Paul's and SPCS move for summary judgment dismissing plaintiff's cause of action for negligent hiring. A necessary element of a cause of action for negligent hiring is that the employer knew or should have known of an employee's propensity for the conduct that caused the injury. Doe v. Whitney , 8 AD3d 610 (2d Dept 2004); T.W. v. City of New York, 286 AD2d 243 (1st Dept 2001). Here, principal Chiapperino interviewed Saunders based on recommendations from a parent and teacher, and her own knowledge of Saunders through Saunders's work as a referee for the CYO. In addition, a "Safe Environment" background check was conducted on Saunders, which revealed no prior misconduct.
"A duty to investigate further into [Saunders's] background, or to institute specific procedures for hiring employees, may be imposed upon [the employer] only if it knew facts that would lead a reasonably prudent person to investigate the prospective employee." Boadnaraine v. City of New York , 68 AD3d 1032 , 1033 (2d Dept 2009) (internal quotation marks and citation omitted); see also T.W., 286 AD2d 243. There is nothing here to indicate that a further investigation of Saunders was necessary, as there was nothing criminal in her background check. While Chiapperino may not have confirmed or contacted anyone from her prior work experience, plaintiffs have not submitted any evidence showing that checking more references would have revealed any improper conduct. Further, the principal, a teacher and parent all recommended Saunders, based on her work as a basketball referee in the CYO, a youth organization, which was involved with for many years, and church activities.
As such, the cause of action for negligent hiring is dismissed.
NY Archdiocese, St. Paul's and SPCS also move to dismiss cause of action for negligent retention and supervision. Schools are charged with the duty of adequately supervising their students while on school premises or otherwise in the control of school personnel. See Dia CC v. Ithaca City School Dist., 304 AD2d 955 (3d Dept 2003). Schools may be held liable for foreseeable injuries proximately caused by a failure to provide adequate supervision. Mirand v. City of New York, 84 NY2d 44 (1994); Garcia v. City of New York, 222 AD2d 192 (1st Dept 1996). "[A] teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances. The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of the parents and guardians." Mirand, 84 NY2d at 49 (internal quotation marks and citation omitted).
While a school bears no liability in tort to a student for the acts of a school employee committed after the school returns the student to his or her parent or guardian, Sheila C. v. Povich , 11 AD3d 120 (1st Dept 2004), a negligent retention theory may be viable where the school had notice of proper allegations of a teacher's inappropriate contact with a student, and failed to investigate the allegations. Colon v. Jarvis, 292 AD2d 559 (2d Dept 2002); Pinks v. Turnbull, 25 Misc 3d 1245[A] (Sup Ct. NY Co. 2009).
As in Doe v. Whitney , 8 AD3d 610 , a fact-finder could reasonably conclude that St. Paul's and SPCS's failure to notice Jones's absence, the alleged incident that occurred in the gymnasium, teachers and school administrators allowing Saunders to remove Jones from class and to take her home early from school without consent from her parents "constituted breaches of the duty of a parent of ordinary prudence." See Doe, 8 AD3d at 612, citing Bell v. Board of Educ. of City of NY, 90 NY2d 944, 946 (1997). As such, summary judgment on this ground is denied.
There is, however, no evidence that the defendant NY Archdiocese knew or should have known about any inappropriate conduct for which it might be liable. Accordingly, the claim of negligent retention and supervision is dismissed as against the NY Archdiocese.
Additionally, NY Archdiocese, St. Paul's and SPCS move for summary judgment dismissing plaintiffs' cause of action for breach of contract. In order to establish a prima facie case on a breach of contract claim, plaintiff must show proof of a contract, performance by one party on the contract, a breach by the other party and damages as a result. Flomenbaum v. New York Univ. , 71 AD3d 80 (1st Dept 2009), aff'd 14 NY3d 901 (2010).
Here, plaintiffs have not submitted evidence of an express contract between plaintiffs and defendants. Plaintiffs rather argue that the school's failure to train part-time teachers, including Saunders, about reporting and preventing sexual abuse, constitutes a breach of contract and deceptive business practice.
The elements of a cause of action for deceptive business practices under General Business Law (GBL) § 349, are: (1) "the defendant made misrepresentations or omissions that were likely to mislead a reasonable consumer in the plaintiff's circumstances[; (2)] that the plaintiff was deceived by those misrepresentations or omissions[;] and [(3)] that as a result the plaintiff suffered injury." Solomon v. Bell Atlantic Corp. , 9 AD3d 49 , 52 (1st Dept 2004). Reliance is not an element of a claim under GBL § 349; rather, the plaintiff must show that the defendant's material deceptive act caused the injury. See Gale v. International Bus. Machines Corp. , 9 AD3d 446 (2d Dept 2004). There is no evidence that the failure to train Saunders about sexual abuse caused Jones's injury.
Accordingly, the defendants' motion for summary judgment dismissing the causes of action relating to the breach of contract and deceptive business practice claims is granted.
St. Paul's and SPCS move, in the alternative for a change of venue. The defendants have failed to make a sufficient showing for a discretionary change of venue pursuant to CPLR 510 (3), as defendants have "failed to detail the identity and availability of proposed witnesses, the nature and materiality of the anticipated testimony and the manner in which they would be inconvenienced by the designated venue." Brown v. Dawson , 65 AD3d 980 , 980 (1st Dept 2009). Accordingly, the defendants' motion for change of venue is denied.
Based on the foregoing, the motion made by plaintiffs to compel defendants to produce discovery concerning other negligence cases involving the NY Archdiocese (motion sequence no. 007) is denied as moot.
The Court next turns to the motions concerning the respective parties' expert witnesses. Specifically, plaintiffs seek to exclude the expert testimony of defendants' expert, Paul Nassar, M.D., while defendants seek to strike portions of the affidavit and report of plaintiffs' expert, Edward Dragan (motion seq. no. 008).
"Generally, the function of a motion in limine is to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting its use." State of New York v. Metz, 241 AD2d 192, 198 (1st Dept 1998) (emphasis in original). "It is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefitted by the specialized knowledge of an expert witness." People v. Lee, 96 NY2d 157, 162 (2001) (internal quotation marks and citation omitted).
Plaintiffs seek to exclude the expert testimony of Dr. Nassar, a clinical and forensic psychiatrist. Plaintiffs claim that Dr. Nassar never questioned Saunders, and therefore cannot testify that Saunders did or did not have a propensity to engage in sexual contact with minors or that the sexual abuse of Jones could not have been predicted because: (1) he lacks the expert ability to offer opinions set forth herein; and (2) such testimony is tantamount to profile evidence, which is inadmissible. Plaintiffs rely on People v. Neer, 129 AD2d 829 (3rd Dept 1987), and People v. Berrios, 150 Misc 2d 229 (Sup. Ct. Bronx Co. 1991).
Defendants counter, however, that Dr. Nassar is skilled in the profession of psychiatry, and that the subject matter of his proposed testimony relates to the field of psychiatry. Defendants point to Article 10 of the New York Mental Hygiene Law, which permits the use of a "psychiatric examiner to determine whether there is probable cause to believe that respondent is a sex offender requiring civil management," see Mental Health Law §§ 10.06 and 10.09(b), to support their contention that psychiatric evidence is permitted to determine whether a person has a propensity to commit acts of sexual misconduct.
To the extent that plaintiffs argue that such testimony constitutes profiling, those cases relied upon by plaintiff are criminal cases which stand for the proposition that, in a criminal case, profile testimony is improper and prejudicial because it bears on proving that a criminal act occurred. See Berrios, 150 Misc 2d 229. Here, Saunders already admitted that she was guilty of the crimes charged against her.
Defendants contend that their expert's testimony will be used to determine if Saunders exhibited certain behaviors associated with being a sex offender, relying on People v. Phillip , 18 Misc 3d 841 (Sup. Ct. Kings Co. 2008), wherein the court permitted such expert testimony. There, as in this case, the expert based his opinions on a review of the records and not on an examination of the party.
The Court finds that defendants' expert may be used to testify as to whether there were such signs that could have put St. Paul's on notice that Saunders was likely to engage in sexual misconduct.
Accordingly, plaintiffs' motion to exclude the testimony of Dr. Nassar is denied.
Defendants cross-move to strike portions of plaintiffs' expert, Dr. Edward Dragan's affidavit and report, on the basis that: (1) his opinions are contrary to generally accepted scientific principles and procedures; and (2) Dr. Dragan lacks the qualification necessary to offer such opinions.
Defendants claim that there is nothing in Dr. Dragan's affidavit, report or curriculum vitae to suggest that he is qualified to offer an opinion on human sexuality or the types of behaviors that indicate a propensity to commit acts of sexual misconduct. Plaintiffs counter that Dr. Dragan, an education consultant, will not be called upon as an expert concerning Saunders's propensity to engage in sexual misconduct, but rather, to testify whether defendants' education administration was negligent in its supervision of Saunders as a teacher of 12-year old girls. Dr. Dragan, as a former principal and superintendent, has been responsible for the development, review, implementation and enforcement of child sexual abuse and sexual harassment. Dr. Dragan also trained school staff members with regard to child sexual abuse and sexual harassment policies, including detection, prevention and reporting of child sexual abuse.
Plaintiffs argue that Dr. Dragan's opinions stem from his work as an education administrator, not as a psychiatrist, and that, based on this experience, he is qualified as an expert to opine on whether the defendants' education administrators were negligent in the professional standard of care in the field of education and education administration, concerning the supervision and retention of Saunders and the duty they had to protect Jones from harm. The Court agrees. See People v. Lee, 96 NY2d 157.
Accordingly, the cross motion to strike the portions of Dr. Dragan's affidavit and report is denied.
In accordance with the foregoing, it is
ORDERED that the plaintiffs' motion to compel discovery is denied as moot (motion sequence no. 007); and it is further
ORDERED that the plaintiffs' motion in limine to exclude defendants' expert, Paul Nassar, M.D., is denied (motion sequence no. 008); and it is further
ORDERED that the defendants' cross motion to strike a portion of the testimony of plaintiffs' expert, Dr. Edward Dragan, is denied (motion sequence no. 008); and it is further
ORDERED that the defendants' motion for summary judgment is granted only to the extent that (1) the complaint is severed and dismissed as against defendant Roman Catholic Archdiocese of New York, and the Clerk is directed to enter judgment in favor of said defendant, with costs and disbursements as taxed by the Clerk upon presentation of an appropriate bill of costs, and (2) the claims of negligent hiring, breach of contract and deceptive business practice (the eleventh, twelfth, fifteenth, sixteenth and seventeenth causes of action) are dismissed in their entirety as against the remaining defendants; and it is further
ORDERED that the remainder of the action shall continue.
This constitutes the decision and order of the Court.