Defendant, Churchville-Chili Central School District, (hereinafter, CCCSD), moved to dismiss the Complaint pursuant to CPLR 3211(a)(5) on the grounds that the Complaint is barred by res judicata; and CPLR 3211(a)(7) on the grounds that the Complaint fails to state a cause of action (NYSCEF motion 001). Plaintiff opposed the motion. This case was brought pursuant to the Child Victims Act (CPLR 214-g). Plaintiff claims that Ryan Raftery, employed by CCCSD as a teacher and a coach, engaged in sexual contact with plaintiff from 1997 to 1999 while plaintiff was a minor. While plaintiff was not a student of CCCSD, plaintiff claims that “unpermitted sexual contact” between plaintiff and Raftery occurred on CCCSD property. After the motion to dismiss was filed, plaintiff withdrew the causes of action for negligent hiring; negligent training and supervision; and negligent retention. Therefore, the only causes of action subject to the motion to dismiss are those based on premises liability and breach of statutory duty to report under Social Services Law §413. This Court decided two previous motions on a related matter that are important to the determination here. Under caption Reno v. Wheatland-Chili Central School District, Churchville-Chili Central School District, index number E2020001722, a Complaint based on the same set of facts was filed. On that matter, the Court issued a Decision and subsequent Order on defendants’ motion to dismiss, (NYSCEF motion 001), and plaintiff’s cross-motion to amend the Complaint, (NYSCEF motion 002). With respect to that portion of defendants’ motion seeking dismissal of the cause of action for premises liability, the Court determined that the Complaint did not state a claim for premises liability against either defendant and granted the motion to dismiss. The Court also denied that portion of plaintiff’s cross-motion seeking leave to amend the Complaint to add a cause of action against both defendants based on the failure to report abuse pursuant to Social Services Law §413. However, by subsequent decision on plaintiff’s motion to reargue, (NYSCEF motion 003), the Court granted plaintiff’s motion to reargue and for leave to Amend the Complaint to add a cause of action against Wheatland-Chili Central School District, (hereinafter, WCCSD), only. No causes of action against CCCSD survived the motions. Plaintiff now files a Complaint against CCCSD only, asserting two causes of action: premises liability and the failure to report abuse under Social Services Law §413. Defendant argues that those causes of action should be dismissed pursuant to CPLR 3211(a)(5) on the grounds that they are barred by res judicata based on the determinations outlined above. The doctrine of res judicata dictates that “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred” (O’Brien v. Syracuse, 54 NY2d 353, 357 [1981]). “[A] party seeking to assert res judicata or claim preclusion must show the existence of a prior judgment on the merits” (Miller Mfg. Co. v. Zeiler, 45 NY2d 956, 958 [1978]). Here, there was no judgement on the merits as to either cause of action. The doctrine of res judicata therefore does not apply and the motion to dismiss on 3211(a)(5) grounds is denied. CCCSD also argues that the Complaint fails to state a cause of action for premises liability and requests dismissal under CPLR 3211(a)(7). “On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), we 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” (Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 141 [2017]). In particular, CCCSD argues that the cause of action based on premises liability should be dismissed, because plaintiff attempts to hold CCCSD liable for allowing sexual abuse to occur on school property and that such allegations seek to impermissibly expand the scope of premises liability, citing to Wilson v. Diocese of New York of Episcopal Church, 1998 WL 82921, at *6 (S.D.NY Feb. 26, 1998). Here, plaintiff was not a student at the school where the abuse allegedly occurred. Therefore, CCCSD owed no duty to protect plaintiff as a student of the school (see Mirand v. City of NY, 84 NY2d 44, 49 [1994] stating “[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision”). However, under a theory of premises liability, it is the duty of a property owner “to protect plaintiff from foreseeable harm caused by third persons” (Taft v. Connell, 285 AD2d 992, 992 [4th Dept 2001]; see also, Nallan v. Helmsley-Spear Inc., 50 NY2d 507, 519 [1980]). Such duty is limited to conduct on the premises, which the owner had the opportunity to control and of which the owner was reasonably aware (Taft at 992). The duty has been applied “not only in cases where the assailant was a stranger to the defendant, but also, as in the case here, where the underlying act was committed by an employee of the establishment” (JG v. Goldfinger, 161 AD3d 640, 640 [1st Dept 2018]). CCSD therefore had a duty to protect plaintiff, not as a student, but as a property owner. Following those principles, a review of the Complaint establishes that plaintiff states a cause of action under a theory of premises liability. CCCSD’s motion to dismiss the premises liability claim is denied. Counsel for plaintiff is to prepare and submit an Order, attaching the Court’s Decision, in 30 days. Dated: July 19, 2021
