Opinion
Index No. 513846/2021
05-21-2024
JOHN DOE, Plaintiff, v. EDWARD WARD and SURPRISE LAKE CAMP, Defendants.
Unpublished Opinion
DECISION AND ORDER
Hon. Joy F. Campanelli, J.S.C.
The following e-filed papers read herein:
NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ Seq.
#2
Petition/Cross Motion and Affidavits (Affirmations) Annexed
24-28
Opposing Affidavits (Affirmations)
34-35
Affidavits/ Affirmations in Reply
36
Other Papers: Affidavits/Affirmations in Support
Defendant SURPRISE LAKE CAMP moves by Notice of Motion seq. 002 to dismiss Plaintiff's complaint against it pursuant to CPLR 3211(a)(7).
According to the Complaint, Plaintiff was a camper at SURPRISE LAKE CAMP in the summers of 1989 and 1990, when he was a minor. The Complaint asserts that, while at camp, Plaintiff was sexually abused by Defendant EDWARD WARD (hereinafter "WARD"), a counselor for SURPRISE LAKE CAMP. The Complaint asserts nine (9) causes of action against the Defendants: (1) negligence and recklessness; (2) negligent hiring, retention, supervision and/or direction; (3) breach of fiduciary duty; (4) breach of non-delegable duty; (5) in loco parentis; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress (8) breach of statutory duty to report abuse under Social Services Law §§413 and 420, and (9) sexual abuse. Plaintiff is also seeking punitive damages.
In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), a Court's role is deciding "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]). "On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), a court must accept the facts as alleged in the complaint as true, accord [plaintiff] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Eskridge v Diocese of Brooklyn, 210 A.D.3d 1056, 1057 [2d Dept 2022]; Leon v Martinez, 84N.Y.2d 83 [1994]; Boyle v North Salem Central School District, 208 A.D.3d 744 [2d Dept 2022]). "Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss" (id; EBC I, Inc. v Goldman, Sachs & Co., 5 N.Y.3d 11 [2005]). It is the movant who has the burden to demonstrate that, based upon the four comers of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action (see Leon, 84 N.Y.2d at 87-88; Guggenheimer, 43 N.Y.2d at 275). "Although the facts pleaded are presumed to be true and are to be accorded every favorable inference, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (Krasnow v Catania, 219 A.D.3d 1324, 1324 [2d Dept 2023]). This Court will address each cause of action individually, as follows:
1. Negligence and recklessness:
The allegations against SURPRISE LAKE CAMP stated in the first cause of action premise liability for negligence and recklessness on the duty to supervise and prevent harm to children. The Court finds that this is duplicative of Plaintiff's negligent supervision, retention and hiring cause of action, which warrants dismissal. Accordingly, the branch of the motion seeking dismissal of Plaintiff's claims for negligence and recklessness is granted.
2. Negligent hiring, retention, supervision and/or direction
New York Courts have found that "[c]auses of action alleging negligence based upon negligent hiring' retention' or supervision are not statutorily required to be pleaded with specificity" (Belcastro v Roman Catholic Diocese of Brooklyn, New York, 213 A.D.3d 800, 801 [2d Dept 2023]). "An employer can be held liable under theories of negligent hiring, retention, and supervision where it is shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Id. "The manner in which the defendant acquired actual or constructive notice of the alleged abuse is an evidentiary fact, to be proved by the claimant at trial. In a pleading, the plaintiff need not allege his [or her] evidence" (Martinez v. State, 2023 NY Slip Op. 01990 [2d Dept 2023])."
This Court finds that Plaintiff has sufficiently plead his cause of action of negligent hiring, negligent retention, and supervision. Accordingly, the branch of the motion seeking dismissal of Plaintiff's claims for negligent hiring, retention and supervision is denied.
3. Breach of fiduciary duty
[T]he elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendants' misconduct" (Mann v Sasson, 186 A.D.3d 823, 824 [2020] [internal quotation marks omitted]; see Siegler v Lippe, 189 A.D.3d 903, 905 [2020]). A cause of action to recover damages for breach of fiduciary duty must be pleaded with particularity under CPLR 3016 (b) (see WMC Realty Corp, v City of Yonkers, 193 A.D.3d 1018, 1023 [2021]; Mann v Sasson, 186 A.D.3d at 824)."A fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation" (Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 21 [2008] [internal quotation marks omitted]; see WMC Realty Corp, v City of Yonkers, 193 A.D.3d at 1023). Two essential elements of a fiduciary relationship are de facto control and dominance (see Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 N.Y.3d at 21).
Here, the Court finds the complaint does not allege facts that would give rise to a fiduciary relationship between the Plaintiff and the Defendant SURPRISE LAKE CAMP. The complaint fails to allege facts that demonstrated that the Plaintiffs relationship with the Defendant was somehow unique or distinct from the Defendant's relationships with other [campers] generally (see *883 Doe v Holy See [State of Vatican City], 17 A.D.3d 793, 795 [2005]; cf. Martinelli v Bridgeport RC. Diocesan Corp., 196 F.3d 409, 429-430 [2d Cir 1999]). Accordingly, the branch of the motion seeking dismissal of the breach of fiduciary duty cause of action is granted.
4. Breach of non-delegable duty
This cause of action should be dismissed for the reason stated above warranting dismissal of Plaintiff s third cause of action.
5. In loco parentis
With respect to the doctrine of in loco parentis, the Court notes that there is a branch of case law under which schools are tasked with a duty to adequately supervise the students in their charge and are liable for foreseeable injuries proximately related to their failure to provide adequate supervision (see Nash v Port Wash. Union Free School Dist., 83 A.D.3d 136, 149-150 [2d Dept. 2011]; Doe v Department of Educ. of City of N.Y, 54 A.D.3d 352 [2d Dept. 2008]; see also Palmer v City of New York, 109 A.D.3d 526, 527 [2d Dept. 2013], citing Mirand v City of New York, 84 N.Y.2d 44, 49 [1994]; McLeod v City of New York, 32 A.D.3d 907 [2d Dept. 2006]). Based on the doctrine that school districts act in loco parentis with respect to their minor students (see Barragan v City Sch. Dist. of New Rochelle, 120 A.D.3d 728 [2d Dept. 2014]; Stinson v Roosevelt U.F.S.D., 61 A.D.3d 847, 847-848 [2d Dept. 2009]) because they take physical custody of them (see Giresi v City of New York, 125 A.D.3d 601, 602-603 [2d Dept. 2015]), schools are responsible for supervising their students with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances (id., citing Mirand v City' of New York, supra). "The concept of in loco parentis is the fountainhead of the duty of care owed by a school to its students" (Williams V. Weatherstone, 23 N.Y.3d 384, 403 [2014] [citing Mirand v. City of New York, supra] ["(t)he duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians"]). It does not appear, however, that the doctrine of in loco parentis can simply be applied to camps by way of analogy to schools. In loco parentis defines the duty owed within the context of a negligence cause of action but does not create an independent cause of action. As such, that portion of the Defendant's motion to dismiss Plaintiff's in loco parentis claim is granted.
6. Intentional infliction of emotional distress
"The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress" (Klein v Metropolitan Child Servs., Inc., 100 A.D.3d 708, 710 [2012]; see Howell v New York Post Co., 81 N.Y.2d 115, 121 [1993]). The complaint alleges that Defendant SURPRISE LAKE CAMP knew and/or disregarded the substantial probability that WARD would cause severe emotional distress to the Plaintiff. The complaint goes on to allege liability under the doctrine of respondeat superior. The intentional conduct of WARD is not within the scope of his employment, and this does not form the basis of liability of SURPRISE LAKE CAMP for intentional infliction of emotional distress. This matter is distinguishable from Eskridge 210 A.D.3d 1056 (2d Dept 2022) and Novak 210 A.D.3d 1104 (2d 2022), as in those matters the complaint alleged that the Diocese had knowledge of the sexual abuse of plaintiff and other children, yet concealed the abuse and permitted it to continue, whereas in this matter the complaint admits that SURPRISE LAKE CAMP first learned of WARD'S conduct in 2002. The complaint in this matter fails to sufficiently plead a causal connection between SURPRISE LAKE CAMP's alleged outrageous conduct and plaintiff's injuries. Accordingly, the branch of the motion seeking dismissal of Plaintiff's claim for intentional infliction of emotional distress is granted.
7. Negligent infliction of emotional distress
Defendants also seek dismissal of Plaintiff s negligent infliction of emotional distress claim (NIED). Defendants argue that Plaintiff does not articulate a basis for holding them liable under this tort, and that the claim is duplicative of Plaintiffs other negligence-based causes of action. Typically, a cause of action for NIED "must be premised on conduct that unreasonably endangers the plaintiffs physical safety or causes the plaintiff to fear for his or her physical safety" (Padilla v. Verczky- Porter, 66 A.D.3d 1481, 1483 [4th Dept 2009]). "Generally, a cause of action for infliction of emotional distress is not allowed if essentially duplicative of tort or contract causes of action." (Wolkstein v. Morgenstern, 275 A.D.2d 635, 637 [1st Dept 2000]). Plaintiff may recover for emotional distress caused by defendant Ward's alleged conduct under his negligent hiring and retention claim, the NIED claim is unnecessary (see Wilczynski v Gates Community Chapel of Rochester, Inc., 2022 WL 446561, *3, 2022 U.S. Dist LEXIS 26113, *8-9 [WD NY, Feb. 14, 2022, No. 6:20-CV-06616 (EAW)] [dismissing an NIED claim as duplicative of the negligence, negligent supervision, hiring, and retention claims]). As such, Defendants' application to dismiss Plaintiffs NIED claim is granted.
8. Breach of statutory duty to report Social Services Law §§ 413 and 420.
Pursuant to Social Services Law § 413, school officials, which include but are not limited to school teachers, school guidance counselors, school psychologists, school social workers, school nurses, school administrators or other school personnel required to hold a teaching or administrative license or certificate, are required to report "when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child." In addition, Social Services Law § 420(2) states that "Any person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure." "The Legislature enacted Social Services Law § 420 which expressly allows a private cause of action for money damages upon the failure of any person, official or institution required by title 6 to report a case of suspected child abuse or maltreatment" (Rivera v. County of Westchester, 31 Mise 3d 985, 994 [Westchester Co Sup Ct 2006]). "An injured child may assert a cause of action for damages under Social Services Law § 420 for alleged violations of sections 413 and 417, which were enacted to protect children from physical abuse" (Young v. Campbell, 87 A.D.3d 692, 694 [2nd Dept 2011], Iv denied **10 18 N.Y.3d 801 [2011]). Defendants argue that this cause of action should be dismissed as they are not mandatory reporters. Here, the Court finds that, as a camp, the Defendant is entitled to dismissal of this cause of action as it is not an institution that is mandated to report under the Social Services Law. Accordingly, the branch of the motion seeking dismissal of Plaintiff's claim forbreach of statutory duty to report Social Services Law §§ 413 and 420 is granted.
9. Sexual Abuse
Sexual abuse is not "generally" within the scope of employment, therefore Plaintiff's cause of action for sexual abuse is dismissed. The law is clear that an employer cannot be held vicariously liable for sexual abuse committed by their employees (see Mazzarella v Syracuse Diocese, 100 A.D.3d 1384, 1385 [4th Dept 2012]). As such, Defendants' application to dismiss Plaintiffs sexual abuse claim is granted.
10. Punitive damages
The only remaining cause of action is for negligent hiring, retention, or supervision. Punitive damages in actions involving negligent hiring, retention, or supervision generally require conduct evincing a high degree of moral culpability, so flagrant as to transcend simple carelessness, or which constitutes willful or wanton negligence or recklessness so as to evince a conscious disregard for the rights of others (see Coville v Ryder Truck Rental, Inc., 30 A.D.3d 744 [2006]). Accordingly, the branch of the motion seeking dismissal of Plaintiff's claim for punitive damages is granted.
Accordingly, it is hereby ORDERED that the portion of SURPRISE LAKE CAMP's motion seq. 002 to dismiss pursuant to CPLR 3211(a)(7) the causes of action of negligence and recklessness, breach of fiduciary duty, breach of nondelegable duty, in loco parentis, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of statutory duty to report Social Services Law §§ 413 and 420 and sexual abuse is GRANTED; and it is further
ORDERED that the portion of SURPRISE LAKE CAMP's motion Seq. 002 pursuant to CPLR 3211(a) (7) to dismiss plaintiff's cause of action for negligent hiring, retention and supervision is DENIED, and it is further
ORDERED that the portion of SURPRISE LAKE CAMP's motion seeking dismissal of punitive damages is GRANTED.
This constitutes the decision and order of the Court.