The following e-filed documents for Motion Sequence 11 and 12, listed by NYSCEF document numbers “246,” “247,” “248,” “249,” “275,” “276,” “277,” “278,” “279,” “304,” “305,” “311,” “312,” “313,” “314,” “315,” “352,” “353,” “354,” “355,” “392,” “394,” “396,” “398,” “399″ attachments and exhibits thereto have been read on this motion: Motion Sequence 11 Notice of Motion and Affidavits X Affirmation in Opposition X Reply Affirmation X Motion Sequence 12 Notice of Motion and Affidavits/Affirmations X Memorandum of Law in Support X Affidavit/Affirmation in Opposition X Memorandum of Law in Opposition X Reply Affirmation X Memorandum of Law in Reply X DECISION/ORDER Background The plaintiff initiated this action by way of Summons and Verified Complaint and alleges that she was a student at defendant Lawrence Woodmere Academy’s (“Academy”) school between 2014 and 2016. During that time, the plaintiff asserts that one of the Academy’s teachers, defendant Daniel McMenamin (“Daniel”), engaged in unlawful activities with the plaintiff including rape, sexual assault, harassment, molestation, seduction, wrongful detainment, mental anguish, assault, battery and including the plaintiff to use illegal drugs. The plaintiff was fourteen years old, and Daniel was twenty-nine years old at the time the alleged conduct began. According to the Verified Complaint, these activities took place during and after school hours. During the time that the alleged conduct after school hours, the plaintiff was at the home of defendant Jill Ann McMenamin (“Jill Ann”), his mother, who lived with Daniel and purportedly was aware that the plaintiff was a minor and engaged in a sexual relationship with Daniel. The plaintiff asserts that the Academy and its students and employees were also aware of the sexual relationship between Daniel and the plaintiff and, as a result, Daniel was terminated from his employment with the Academy in 2016. The relationship between the plaintiff and Daniel continued after his termination from the Academy and ended in 2017. MOTION SEQUENCE 11 Jill Ann moves this Court for an order pursuant to CPLR §3212 for an order granting her summary judgment dismissing the plaintiff’s seventh and eight causes of action alleged against her sounding in negligence and negligent infliction of emotional distress. The plaintiff opposes the motion. Jill Ann submits a reply. A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties. However, the duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such.” (Velez v. Pac. Park 38 Sixth Ave., LLC, 183 AD3d 590, 591). Jill Ann submitted evidence sufficient to establish her prima facie entitlement to judgment as a matter of law. As an initial matter, it is undisputed that Daniel was a twenty-nine years old and employed by the Academy when his relationship with the plaintiff began and, as so, Jill Ann established that she was not in control of Daniel’s conduct as he was an emancipated adult. (Hartsock v. Hartsock, 189 AD2d 993, 994). Moreover, Jill Ann argues that even if she had walked in on the plaintiff and Daniel nude in bed and quickly closed the door, as provided by the plaintiff’s testimony, neither her testimony nor the testimony of the plaintiff establishes that Jill Ann was aware that the plaintiff was a minor who lacked the capacity to give legal consent when she opened Daniel’s bedroom door. Accordingly, Jill Ann established that she was not aware that there was a need to control Daniel’s conduct. (Velez, 183 AD3d at 591). The plaintiff, in opposition, has not produced evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial. (Zuckerman v. City of New York, 49 NY2d 557, 562; Alvarez v. Prospect Hosp., 68 N.Y.2d 320). The plaintiff asserts that her testimony establishes that she was in Jill Ann’s home multiple times, during which times Jill Ann observed the plaintiff in Daniel’s bedroom, using the bathroom and nude in Daniel’s bed. The plaintiff also testified that Jill Ann observed the plaintiff walking down the hall of her home and leaving her home, which sometimes occurred during the day. The plaintiff’s contention that Jill Ann’s observations establishes that Daniels acts were foreseeable and, by failing to take preventative measures to stop these acts from occurring, Jill Ann breached her duty to the plaintiff is unpersuasive. The plaintiff fails to cite any legal authority demonstrating that Jill Ann’s observations that the plaintiff was present in her home, even nude in bed with Daniel, created a need to control Daniel’s actions, or that such observations placed Jill Ann under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties. The plaintiff’s opposition is devoid of any evidence establishing that Jill Ann was aware that the plaintiff was a minor. Additionally, the plaintiff does not rely on any legal authority establishing that Jill Ann could control the acts of her adult son Daniel. Inasmuch as parents have no legal right to control their adult child’s activities, Jill Ann cannot be held liable for those activities. (Hartsock, 189 AD2d at 994). Therefore, the plaintiff’s claims against Jill Ann sounding in negligence should be dismissed. With respect to the plaintiff’s claim sounding in negligent infliction of emotional distress, it has been held that a “cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him [or her] which unreasonably endangered his [or her] physical safety, or caused him [or her] to fear for his [or her] own safety.” (Borrerro v. Haks Group, Inc., 165 AD3d 1216, 1219). As discussed above, the plaintiff’s contention that Jill Ann permitted her adult son, Daniel, to engage in an intimate relationship with the plaintiff while they were in her home fails to raise a material issue of fact with respect to Jill Ann’s duty to the plaintiff as the plaintiff has not offer testimony or other evidence conclusively establishing that Jill Ann knew that the plaintiff was a minor who was legally incapable of giving consent to the alleged conduct. (Id.). Thus, the plaintiff’s cause of action sounding in negligent infliction of emotional distress should be dismissed under these circumstances. MOTION SEQUENCE 12 The Academy moves this Court for an order pursuant to CPLR §3212 for an order granting it summary judgment and dismissing the plaintiff’s causes of action against the Academy with prejudice. The plaintiff opposes the motion. The Academy submits a reply. In support of the motion, the Academy argues that the plaintiff’s remaining causes of action, to wit, negligence, negligent supervision, negligent security, negligent training, negligent retention, vicarious liability, and negligent infliction of emotional distress should be dismissed because the Academy did not have actual or constructive notice that Daniel was engaged in an inappropriate relationship with the plaintiff. Generally, “[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. (Gaston v. E. Ramapo Cent. Sch. Dist., 165 AD3d 761, 762). To establish a cause of action based on negligence, which includes negligent hiring, retention, supervision, and training of an employee, “a plaintiff must demonstrate that the employer knew or should have known that the employee had a propensity for the conduct which resulted in the plaintiff’s injury.” (Aklipi v. Am. Med. Alert Corp., 216 AD3d 712, 713). Here, the Academy’s moving papers acknowledges that its Headmaster, Alan Bernstein (“Bernstein”), began hearing that the plaintiff was in Daniel’s presence often and was often seen with Daniel. Although Bernstein testified that he thought that the plaintiff merely had a crush on Daniel and never witnessed any physical contact between Daniel and the plaintiff, he also testified that he met with Daniel to give him advice regarding how to manage the plaintiff’s crush on Daniel. Berstein told Daniel to make sure that his classroom door remained open when Daniel provided the plaintiff with extra help, or to conduct the extra help where other people were around. The Academy also acknowledges that, after Daniel did not comply with Bernstein’s directives, Bernstein spoke with Jeff Weiss (“Weiss”) and Marc Hoyle, who also work for the Academy, regarding the situation between the plaintiff and Daniel. During this discussion, Bernstein admits to asking Weiss to speak with Daniel privately to determine if the situation between the plaintiff and Daniel was something to be concerned about. Although Weiss did not report anything to Bernstein, Bernstein testified that he called another meeting with Niall Alli (“Alli”), the Academy’s Board Chairperson, Weiss and Daniel to address the rumors surrounding Daniel’s relationship with the plaintiff. Bernstein states that he reiterated what he told Daniel during their private meeting — that he was concerned Daniel and the plaintiff were still spending time together. Bernstein testified that Daniel’s behavior did not stop and, as so, Alli called another meeting with Daniel, during which Alli demanded Daniel’s resignation on the ground that the situation with the plaintiff had not changed. Berstein’s testimony establishes that the Academy was aware of the rumors surrounding Daniel’s relationship with the plaintiff and took steps to address the rumors by meeting with Daniel several times to stop the behavior towards the plaintiff. Even if the Academy was not aware of the extent of Daniel’s relationship with the plaintiff, Daniels continued failure to heed the Academy’s warning to stay away from the plaintiff demonstrates that the Academy knew or should have known that Daniel had propensity for the conduct which resulted in the plaintiff’s injury. (Aklipi, 216 AD3d at 713). Therefore, the Academy failed to eliminate all material issues of fact and has not met its prima facie burden for entitlement to summary judgment on the plaintiff’s claims sounding in negligence. Since the Academy fails to meet its initial burden of demonstrating entitlement to summary judgment as a matter of law, (Alvarez, 68 NY2d at 320; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851), the burden does not shift to the plaintiff to establish the existence of a material fact which would require a trial (Greenberg v. Coronet Prop. Co., 167 AD2d 291), and as so, the Court need not address the sufficiency of the plaintiff’s opposition. As previously provided, to prevail on her claim for negligent infliction of emotional distress, the plaintiff must show a breach of a duty owed to her which unreasonably endangered her physical safety, or caused him to fear for her own safety. (Borrerro, 165 AD3d at 1219). The Academy argues that the plaintiff has not established any conduct on the part of the Academy that was so extreme as to exceed the bounds of decency since the plaintiff’s claims are based on Daniel’s actions. However, the plaintiff raises a question of fact regarding whether the Academy’s alleged failure to further investigate the rumors regarding whether Daniel and the plaintiff were engaged in an inappropriate intimate relationship unreasonably endangered the plaintiff’s safety that resulted in the plaintiff suffering from physical and psychological injuries. (Id.). Therefore, dismissal of the plaintiff’s claims alleging negligent infliction of emotional distress is not warranted under these circumstances. With respect to the plaintiff’s claim alleging vicarious liability for the negligent failure of their employees to intervene, the Academy asserts that it was never advised that a sexual relationship between Daniel and the plaintiff existed and, as such, there was no basis for any staff member to intervene. In addition, the Academy maintains that it cannot be held vicariously liable for its’ employee’s failure to intervene because Daniel’s were not done in the furtherance of its business or within the scope of Daniel’s employment. “Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment. An act of sexual assault by an employee is a clear departure from the scope of employment, committed solely for personal reasons, and unrelated to the furtherance of the employer’s business.” (Dia CC. v. Ithaca City Sch. Dist., 304 AD2d 955, 956). It is undisputed that Daniel’s actions were sexual in nature and, therefore, not in scope of his employment. (Id.). However, the Academy fails to eliminate all material issues of fact as to whether its staff members were acting in the course of their employment by failing to report what they saw. The Academy’s moving papers acknowledges that at least one teacher, Mrs. Ayala, observed the plaintiff quickly moving away from Danile and appearing “flustered,” which prompted Mrs. Ayala to confront the plaintiff regarding what she observed. The plaintiff denied an inappropriate relationship with Daniel and Mrs. Ayala did not report the incident. The case law relied upon by the plaintiff in opposition, Nevaeh T. v. City of NY, 132 AD3d 840, is instructional in that although the defendant school district could be held liable for the teacher’s sexual misconduct, it could be held vicariously liable for other staff member’s actions of they acted negligently within the scope of their employment. Since Mrs. Ayala observed the plaintiff to be flustered and quickly move away from Daniel, the Academy has not eliminated all material issues of fact as to whether, in the course of her employment, Mrs. Ayala was required to report such incidents to her supervisors and whether she was negligent in her failure to do so. Thus, the Academy has not established its prima face entitlement to summary judgment on the plaintiff’s claim vicarious liability for its staff member’s failure to intervene and the Court need not consider the sufficiency of the plaintiff’s opposition. Regarding the plaintiff’s claim for punitive damages, the Academy asserts that there is not evidence or testimony establishing that it acted toward the plaintiff with wonton dishonesty, malicious intent or criminal indifference to its civil obligations. It is well established that a plaintiff must meet an extremely high burden before a claim for punitive damages can be maintained, whereby the standard for punitive damages includes “gross negligence,” “morally reprehensible,” “wanton dishonesty” and “activated by evil.” (Rocanova v. Equitable Life Insurance, 33 NY2d 604; Walker v. Sheldon, 10 NY2d 401; Nooger v. Jay-Dee Fast Delivery, 673 NYS2d 1006). The plaintiff’s opposition argues that the Academy knew of the inappropriate relationship between Daniel and the plaintiff yet “turn[ed] a blind eye” and actually made it easier for Daniel to engage in the activities by providing his space in the library. However, the testimony by Bernstein, the Academy’s Headmaster, establishes that inquiries were made regarding the alleged relationship between the plaintiff and Daniel. Bernstein states he met with Daniel on at least two occasions where Daniel was advised that he should spend less time with the plaintiff and Alli, the Chair of the Board, ultimately fired Daniel for his failure to stop spending time with the plaintiff. Considering the Academy took some steps regarding Daniel’s actions, the plaintiff has not established that the Academy’s actions were morally reprehensible or activated by evil, even if a jury later determines that the actions were insufficient. (Id.). Therefore, the plaintiff fails to raise a material issue of fact and dismissal of the plaintiff’s cause of action for punitive damages is warranted under these circumstances. Based upon the foregoing, it is hereby ORDERED, that defendant Jill Ann McMenamin’s motion (Motion Sequence 11) for an order granting her summary judgment and dismissing the plaintiff’s claims against her is granted and therefore plaintiff’s causes of action as and against defendant Jill Ann McMenimen and any and all cross-claims asserted against her are hereby dismissed, and it is further ORDERED, that the branches of defendant Lawrence Woodmere Academy’s motion (Motion Sequence 12) for an order granting it summary judgment as to the plaintiff’s causes of action alleging negligence, negligent supervision, negligent security, negligent training, negligent retention, vicarious liability, and negligent infliction of emotional distress are hereby denied, and it is further ORDERED, that the branch of defendant Lawrence Woodmere Academy’s motion (Motion Sequence 12) for an order granting it summary judgment as to the plaintiff’s cause of action for punitive damages is granted and, therefore, the plaintiff’s cause of action for punitive damages as and against defendant Lawrence Woodmere Academy is hereby dismissed. This constitutes the decision and order of the Court. Dated: January 10, 2024
