The following papers, in addition to any memoranda of law and/or statement of material facts, were reviewed in preparing this Decision and Order: School District’s Notice of Motion, Affirmation, Affidavits & Exhibits 1 Plaintiff’s Affirmation in Opposition & Exhibits 2 School District’s Reply 3 DECISION AND ORDER In this action plaintiff alleges that he was sexually abused by a janitor employed by Lawrence Union Free School District (the “District”) beginning in 1974 when he was 11 or 12 years old. As against defendants the District and Lawrence Primary School (collectively referred to as the “school defendants”), plaintiff asserts causes of action against defendants for negligent hiring, retention, supervision and direction (First Cause of Action); negligent, reckless, and willful misconduct (Second Cause of Action); negligent infliction of emotional distress (Third Cause of Action); premises liability (Fourth Cause of Action); and breach of statutory duty to report (Fifth Cause of Action). The school defendants now move for an Order, pursuant to CPLR 3212, granting summary judgment and dismissing the complaint in its entirety. For the reasons set forth below, the motion is granted. BACKGROUND1 Plaintiff alleges that he first encountered “Duke,” a janitor at the “Number Four” school within the District, in 1974 when he was hanging out on the fire escape of the school after school hours.2 According to plaintiff, Duke invited him into the school and paid plaintiff to perform oral sex on him. Plaintiff alleges that when he and Duke entered the building, plaintiff observed another custodian walking down the hallway. Duke abused plaintiff a second time, also after school hours, at the Number Four school in this manner. At some point Duke began working at a different District school (the “junior high school”). During this time, plaintiff attended school outside of the District. Duke’s abuse of plaintiff continued at the junior high school (always after school hours) as well as at Duke’s apartment (on weekends). These interactions between Duke and plaintiff continued until approximately 1977. 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). 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). At the outset, because Lawrence Primary School is not a legal entity capable of being sued, all claims against it are dismissed. See Guerriero v. Sewanhaka Cent. High School Dist., 150 A.D.3d 831 (2d Dept. 2017). Sufficiency of Complaint The District argues that the complaint is insufficient because plaintiff did not satisfactorily identify his abuser. But this argument fails. Since the instant motion is not addressed to the face of the complaint but rather is a motion for summary judgment, the sufficiency of the complaint is not in issue. Tarantelli v. Tripp Lake Estates, Inc., 23 A.D.2d 905 (3d Dept. 1965). “A party is not permitted to avail himself of an imperfection in the pleading of his adversary to deprive the latter of a trial on an issue of fact.” McIntyre v. State, 142 A.D.2d 856 (3d Dept. 1988). Further, plaintiff described the physical appearance of his abuser and provided two potential names of the abuser, one of which the District confirmed was that of its former employee. Premises Liability and Negligent Infliction of Emotional Distress This court may quickly dispatch plaintiff’s claims for premises liability and negligent infliction of emotional distress. Both are duplicative of his other negligence claims since they arise from the same set of facts and do not allege distinct damages. See, e.g., Fay v. Troy City School District, 197 A.D.3d 1423 (3d Dept. 2021) dismissing claim for negligent infliction of emotional distress in CVA action; see also Afifi v. City of New York, 104 A.D.3d 712 (2d Dept. 2013); Wolkstein, 275 A.D.2d at 637 (1st Dept. 2000). As a result, the Third and Fourth Causes of Action of the complaint are dismissed. See Steven B. v. Westchester Day School, 196 A.D.3d 624 (2d Dept. 2021). Breach of Duty under Social Services Law Plaintiff alleges that the District breached its alleged duty to report the subject abuses under New York’s Social Services Law §§413 and 420. In Hanson v. Hicksville Union Free School District, 209 A.D.3d 629 (2d Dept. 2022), the Second Department held that a schoolteacher generally is not a “person legally responsible” for a student’s care and, as a result, a school district has no duty under the Social Services Law to report a teacher’s sexual abuse of a student. Hanson, 209 A.D.3d at 631. Applying the rationale of Hanson to the facts of this action, the janitor was not a person legally responsible for plaintiff’s care and this claim is dismissed. Negligence-Based Claims To sustain his 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, 66 N.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 AD3d 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). 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 Mc. 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. The District satisfied its prima facie burden entitling it to summary judgment by providing the evidence available that it had no notice that “Duke” had a propensity to sexually abuse students prior to plaintiff’s alleged abuse. Plaintiff does not assert that he notified anyone that Duke touched him inappropriately. Plaintiff admits that all incidents of alleged abuse that occurred on school grounds took place after school hours. Further, Mohinder Bharaj, the District’s Clerk, Records Access Officer, Records Management Officer and FOIL Officer, attests that she personally conducted document searches and there is no record that the District ever employed an individual named “Duke” or “Duke Marciano.” Bharaj also attested that based on her search concerning “Edward Reicherter,” no records containing complaints by students or any other indications of alleged sexual abuse or inappropriate behavior were located. In opposition, plaintiff has failed to raise an issue of fact with respect to whether the District had actual or constructive notice that Duke had a propensity to commit sexual abuse prior to the alleged abuse of plaintiff. Plaintiff’s contention that defendants possessed notice because another janitor was present in the building on one occasion of the alleged abuse is unpersuasive. Even if that janitor observed plaintiff in the school hallway after hours, plaintiff does not allege that the janitor witnessed any activity which would have put him on notice that Duke would sexually abuse plaintiff thereafter. Accordingly, the motion for summary judgment is granted and the complaint against the District is dismissed in its entirety.3 Any other relief requested not specifically addressed herein is denied.4 This constitutes the Decision and Order of this court. Dated: February 22, 2024
