Opinion
Index No. 900124/2021 Mot. Seq. No. 003
06-13-2024
L.S., Plaintiff, v. ROOSEVELT UNION FREE SCHOOL DISTRICT, Defendants.
Unpublished Opinion
Part CVA-R
DECISION AND ORDER
LEONARD D. STEINMAN, J.
The following papers, in addition to any memoranda of law and/or statement of material facts, were reviewed in preparing this Decision and Order:
Defendants' Notice of Motion, Affirmation & Exhibits................................................1
Plaintiff's Affirmation in Opposition & Exhibits..........................................................2
Defendants' Reply & Exhibits.......................................................................................3
In this action, plaintiff alleges that when he was in the fifth and sixth grades he was sexually abused in a classroom bathroom by his special-needs teacher, Elaine King, an employee of defendant Roosevelt Union Free School District. Plaintiff seeks to hold the District responsible for his alleged injuries. The District now moves for summary judgment pursuant to CPLR 3212 dismissing the action as against it. For the reasons set forth below, the motion is granted in part and denied in part.
The facts as set forth by the court are consistent with the evidence submitted by plaintiff, including his deposition testimony, hi the context of a summary judgment motion, a court is to view the evidence in a light most favorable to the opposing party and give such party the benefit of every favorable inference. Adams v. Bruno, 124 A.D.3d 566 (2d Dept. 2015). This court makes no findings of fact.
Plaintiff was 11 years old when he entered the fifth grade in Centennial Avenue Elementary School. King was his teacher for fifth grade as well as sixth grade. The classroom for both years was located in a trailer on the school grounds. On occasion, inside the classroom, King would have the students arrange their desks in a circle and allow students who could not work out their problems with each other to fight within the circle. Plaintiff testified that he informed the school's principal of this after one student was bloodied because of a fight with plaintiff. Plaintiff was suspended. Another student testified that students would get hurt from fights "every other week" and they would be sent to the nurse's office.
Plaintiff was sexually abused by King both before and after his suspension. The abuse occurred in a bathroom located in the classroom. Over a two-year period, on 5-10 occasions, King escorted plaintiff into the bathroom during school hours and sexually abused him. The abuse consisted of King having plaintiff perform oral sex on her and fondling plaintiffs penis over his clothes. Plaintiff was the only student King would escort into the bathroom.
Plaintiff never told anyone associated with the school of the abuse until after it ceased (plaintiff conceded this at oral argument). King testified that she was never accused of abuse and received positive employment reviews. The District cannot locate her personnel file. Plaintiff and a student who was in his class testified that no one from the District ever sat in and observed the class. King testified that she was observed periodically. A fellow teacher testified that she was also observed periodically.
LEGAL ANALYSIS
It is the movant who has the burden to establish an entitlement to summary judgment. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997). "CPLR §3212(b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material facts on every relevant issue raised by the pleadings, including any affirmative defenses." Stone v. Continental Ins. Co., 234 A.D.2d 282, 284 (2d Dept. 1996). Where the movant fails to meet its initial burden, the motion for summary judgment should be denied. US Bank N.A. v. Weinman, 123 A.D.3d 1108 (2d Dept. 2014).
Once a movant has shown a prima facie right to summary judgment, the burden shifts to the opposing party to show that a factual dispute exists requiring a trial, and such facts presented by the opposing party must be presented by evidentiary proof in admissible form. Zuckerman v. New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979).
To sustain his negligence claims, plaintiff must allege and prove (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. Pasternack v. Lab. Corp, of Am. Holdings, 27 N.Y.3d 817, 825 (2016); Solomon v. New York, 66 N.Y.2d 1026, 1027 (1985); see also, Turcotte v. Fell, 68 N.Y.2d 432, 437 (1986); Mitchell v. Icolari, 108 A.D.3d 600 (2d Dept. 2013).
Although an employer cannot be held vicariously liable "for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee. . . . The employer's negligence lies in having 'placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention' of the employee."Johansmeyer v. New York City Dept, of Ed., 165 A.D.3d 634 (2d Dept. 2018) (internal citations omitted).
"A necessary element of a cause of action alleging negligent retention or negligent supervision is that the 'employer knew or should have known of the employee's propensity for the conduct which caused the injury'." Bumpus v. New York City Transit Authority, 47 A.D.3d 653 (2d Dept 2008).
At oral argument, plaintiffs counsel stated that plaintiff is not asserting a negligent hiring claim.
Similarly where, as here, a complaint also alleges negligent supervision of a minor stemming from injuries related to an individual's intentional acts, "the plaintiff generally must demonstrate that the school knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable." Nevaeh T. v. City of New York, 132 A.D.3d 840, 842 (2d Dept. 2015), quoting Timothy Me. v. Beacon City Sch. Dist., 127 A.D.3d 826, 828 (2d Dept. 2015); see also Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994). "[S]chools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision." Osmanzai v. Sports and Arts in Schools Foundation, Inc., 116 A.D.3d 937 (2d Dept. 2014); see also Doe v. Whitney, 8 A.D.3d 610, 611 (2d Dept. 2004).
A defendant is on notice of an employee's propensity to engage in tortious conduct when it knows or should know of the employee's tendency to engage in such conduct. Moore Charitable Foundation v. PJT Partners, Inc., 40 N.Y.3d 150, 159 (2023) "(T]he notice element is satisfied if a reasonably prudent employer, exercising ordinary care under the circumstances, would have been aware of the employee's propensity to engage in the injury-causing conduct." Id. at 159.
Here the District has failed to sustain its burden of establishing that it lacked constructive notice of King's alleged abusive propensities and that its supervision of both King and plaintiff was not negligent. See Fain v. Berry, A.D.3d, WL 2837587, (2d Dept. 2024); Sayegh v. City of Yonkers, A.D.3d, WL 2837443 (2d Dept. 2024). The submissions in support of the motion fail to eliminate an issue of fact given plaintiff s testimony that he alerted the principal to the sanctioned fighting in the classroom, the length of time over which the fighting and sexual abuse occurred and the discrepancies in testimony concerning the level of observation of the conduct in King's classroom. See Hammill v. Salesians of Don Bosco, A.D.3d, WL 2947480 (2d Dept. 2024); McVawcd-Doe v. Columbus Avenue Elementary School, 225 A.D.3d 845 (2d Dept. 2024). Furthermore, King's personnel file, which presumably would reflect the existence of any complaints concerning activities in King's classroom and/or sexual abuse, was not produced. As a result, the District's motion for summary judgment dismissing the action is denied.
In McVawcd-Doe, the Second Department found that the defendants had not satisfied theirprima facie burden by establishing their lack of constructive notice of the teacher's abusive propensities given the frequency of abuse over a significant period. 225 A.D.3d at 847-48. In Hammill, the Second Department found that defendant had met its prima facie burden but that the frequency of the abuse raised a triable issue of fact.
The District persuasively argues that summary judgment should not be denied in cases that cannot be proved simply because a defendant cannot establish a negative. See Kwitko v. Camp Shane, Inc, Westchester Co. Index No. 59823/2020, Decision and Order dated February 21, 2023, rev'd, 224 A.D.3d 895 (2d Dept. 2024). The Second Department, however, disagrees. See Sayegh v. Chy cf Yonkers, _A.D.3d _, WL2837443 (2d Dept. 2024).
The request for punitive damages is stricken. The District, as a public entity, may not be held liable for punitive damages. Dixon v. William Floyd Union Free School Dist., 136 A.D.3d 972 (2d Dept. 2016).
Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of the court.