Opinion
Index No. 64055/2020 Mot. Seq. No. 004
01-12-2024
B.M., Plaintiff, v. SCARSDALE PUBLIC SCHOOLS, Defendants.
Unpublished Opinion
DECISION AND ORDER
LEONARD D. STEINMAN, JUDGE
The following papers, in addition to any memoranda of law and/or statement of material facts, were reviewed in preparing this Decision and Order:
Defendant's Notice of Motion, Affirmation & Exhibits ……....…..............................1
Plaintiff's Affirmation in Opposition & Exhibits..........................................................2
Defendant's Reply..........................................................................................................3
Plaintiff commenced this action pursuant to the Child Victims Act alleging that she was sexually abused by a gym teacher employed by defendant Scarsdale Public Schools (hereinafter the "School") between 1979 and 1982. Plaintiff asserts causes of action for negligence and negligent hiring, supervision, and retention against the School. The School now moves for an Order, pursuant to CPLR 3212, granting summary judgment and dismissing the action. For the reasons set forth below, the motion is denied.
In a March 2021 stipulation, plaintiff discontinued all other causes of action.
BACKGROUND
According to plaintiff, beginning when she was in kindergarten through second grade, she was sexually abused by a gym teacher, David Parkinson, an employee of the School.Parkinson often removed plaintiff from the lunchroom during lunch period and took her to the music room where he locked the door and forced plaintiff to perform oral sex on him and inserted his fingers and other objects in her vagina (among other sexual acts). This same pattern of behavior took place approximately 30 times. Other instances of abuse took place in Parkinson's office (10-15 times), classrooms, a "closet room" (10-20 times), a phone booth (approximately 5 times) and the gym.
The facts as set forth by the court are consistent with the evidence submitted by plaintiff, including her deposition testimony. In 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 (Sheryll v. L&J Hairstylists of Plainview, Ltd., 272 A.D.2d 603 (2d Dept. 2000). Uris court makes no findings of fact.
Plaintiff claims there were always two aides present in the lunchroom during her lunch period.
On at least one occasion, two aides used a key to get into the music room when plaintiff was being sexually abused by Parkinson. Upon hearing them at the door, Parkinson pushed plaintiff off his lap. When the aides observed plaintiff with Parkinson, one aide took plaintiff out of the music room and back to class and the other stayed in the room with Parkinson.
On another occasion, the school nurse walked into Parkinson's office and witnessed plaintiff sitting on his lap. The nurse yelled at Parkinson and told plaintiff to get off of his lap.
Diana Mooney, plaintiff's aunt, testified that she received a phone call from the school nurse during the relevant time-period. The nurse advised that plaintiff should not wear dresses to school anymore, without further explanation. The nurse also called Diana Mooney and suggested that plaintiff be picked up from school during lunch period. And on more than 20 occasions the nurse advised Diana Mooney that plaintiff s stomach hurt and she wanted to be picked up from school. Diana Mooney further testified that several years following the abuse, Alice Gaskin, plaintiff s former teacher, and Mr. Gaskin informed her that Parkinson had sexually abused another child at a different elementary school before being transferred to plaintiff's school.
No personnel file or employment records are produced concerning Parkinson.
LEGAL ANALYSIS
It is the movant who has the burden to establish an entitlement to summary judgment as a matter of law. 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).
A defendant's burden cannot be satisfied merely by pointing to gaps in the plaintiff's proof. In re New York City Asbestos Litigation (Carriero), 174 A.D.3d 461 (1st Dept. 2019); Vittorio v. U-Haul Co., 52 A.D.3d 823 (2d Dept. 2008).
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., 46N.Y.2d 1065 (1979).
To sustain her negligence claims, plaintiff must allege and prove (1) a duty owed by the defendants to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. Solomon v. New York, 66N.Y.2d 1026, 1027 (1985); Pasternack v. Lab. Corp. of Am. Holdings, 27 N.Y.3d 817, 825 (2016); see also, Turcotte v. Fell, 68 N.Y.2d 432, 437 (1986); Mitchell v. Icolari, 108 A.D.3d 600 (2d Dept 2013).
"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).
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).
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).
Here, the School fails to establish its prima facie entitlement to summary judgment as a matter of law. The School asserts, in a conclusory fashion, that it had no notice of plaintiff's abuse or of Parkinson's propensity to commit the same. But the School fails to submit proof evidencing its lack of prior notice or the absence of complaints concerning its employee, Parkinson. The School fails to rebut plaintiff s testimony that several School employees either knew or should have known of the abuse based on their observations of plaintiff and Parkinson (the transcript is an exhibit to the School's motion).
The School also fails to proffer any information as to its policies and procedures during the time of plaintiff s alleged abuse. No personnel or employment file with respect to Parkinson is produced.
Apart from the other exhibits, the School submits only two pages of unhelpful testimony from its own witness' deposition transcript for the court's consideration.
And even if the School met its prima facie burden, a reasonable jury could find the School negligent in its supervision of Parkinson, plaintiff, or both, where a kindergarten-aged student was repeatedly: removed from her lunch and recess periods; alone in a gym teacher's office and in empty closets, classrooms and phone booths, on dozens of occasions, undetected, over the course of three school-years, and that this negligence resulted in plaintiff's abuse.
The School's argument that plaintiffs negligent hiring, supervision and retention claim is duplicative of her negligence claim is unpersuasive. Tire negligent hiring, supervision and retention claim concerns the School's alleged negligence with respect to Parkinson whereas the negligence claim concerns the School's supervision of plaintiff.
Therefore, the School's motion for summary judgment is denied.
The School, 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). To the extent plaintiff seeks punitive damages as against it, such request is stricken.
Any relief requested not specifically addressed herein is denied.
This shall constitute the Decision and Order of the court.