Opinion
Index No. 900240/2021 Mot. Seq. No. 002
02-07-2024
M.B., Plaintiff, v. HERRICKS UNION FREE SCHOOL DISTRICT, Defendant. v. HERRICKS UNION FREE SCHOOL DISTRICT, Third-Party Plaintiff, v. v. v. JEROME COHEN, Third-Party Defendant.
Unpublished Opinion
Part CVA-R
DECISION AND ORDER
LEONARD D. STEINMAN, J.S.C.
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 & Exhibits.........................................1
Plaintiff's Affirmation in Opposition to Motion & Exhibits. ........................................2
School District's Reply.................................................................................................3
Plaintiff was a student at defendant Denton Avenue School ("Denton"), located in the defendant Herricks Union Free School District ("District"), and alleges that while there he was abused by a teacher, defendant Jerry Cohen on multiple occasions. Plaintiff further asserts that the District knew or should have known of the abuse. The District now moves pursuant to CPLR 3212 for summary judgment. For the reasons set forth below the motion is granted in part and denied in part.
The facts as set forth by the court are consistent with the evidence submitted by plaintiff, including his 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). This court is making no findings of fact.
In approximately 1980, Cohen joined the District as a teacher from the Deer Park Union Free School District, from which he received positive recommendations.
In approximately spring of 1982, plaintiff was in fifth grade at the Denton Avenue School. Jerry Cohen was a teacher at the school but was not plaintiff s teacher. Plaintiff testified that one day that spring Cohen requested plaintiff to assist him in a medical experiment Cohen was conducting. Within a day or two thereafter, plaintiff left his lunch recess to meet with Cohen in his empty classroom.
In the classroom, Cohen explained to plaintiff that he was experimenting with a way to reduce fevers in kids. He had plaintiff lay across his lap with plaintiff s pants and underwear around plaintiff s ankles and Cohen presumably then proceeded to take plaintiff s temperature rectally (plaintiff is not certain what Cohen inserted in his rectum). Cohen told plaintiff that he had a fever and then fondled his genitals. He then told plaintiff his fever came down. This same abuse occurred, during lunch recess, approximately 5-10 times that school year.
In June 1982, the District received a complaint that Cohen had sexually abused another student, DJ, who stated that during lunch recess Cohen had him lower his pants and took his temperature rectally for a purported experiment he was conducting. The record is unclear if any of the incidents of abuse of plaintiff post-dated DJ's complaint. But Cohen engaged in a similar pattern of misconduct with other Denton Avenue School students during the same approximate time period of plaintiff s abuse. For example, the plaintiff in the action entitled PC-37 Doe v. Herricks Union Free School District (Nassau Co. Index No. 900100/2020) testified that he was similarly abused after leaving his lunch recess multiple times to go to Cohen's classroom in the Spring of 1982. Plaintiffs in other actions have testified to similar scenarios during this time period.
Cohen was eventually accused of sexual abuse a few years later and surrendered his teaching license.
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 (Car ri ero), 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).
Plaintiff alleges that the District was negligent with respect to its supervision of him and its retention of Cohen. Complaint, ¶43.
To the extent plaintiff seeks to rely on a negligent hiring theory (see Complaint, ¶32), "the duty to investigate a prospective employee, or to 'institute specific procedures for luring employees,' is triggered only when the employer 'knows of facts that would lead a reasonably prudent person to investigate the prospective employee. Sandra M. v. St. Luke's Roosevelt Hosp. Center, 33 A.D.3d 875, 879 (2d Dept. 2006); see also KM w Fencers Club, Inc., 164 A.D.3d 891, 893 (2d Dept. 2018); Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 A.D.2d .159, 163 (2d Dept. 1991). There is no evidence that the District was on notice of anything questionable in Cohen's background when they hired him. In all events, there is no evidence that any additional hiring procedure or investigation would have revealed a propensity by Cohen to commit sexual assaults. Therefore, plaintiff may not rely upon this theory.
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 A.D.3d 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 entity it seeks to hold responsible 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). An entity responsible for the supervision of a minor 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).
There is no evidence that the District had actual notice of Cohen's propensity to commit sexual abuse prior to the complaint concerning DJ in June 1982. But plaintiff asserts that the District was on constructive notice because of the parade of students who disappeared from lunch recess over a few months period to be alone with Cohen in an empty classroom for no legitimate purpose. The District failed to notice that plaintiff and other students were leaving recess to be with Cohen on multiple occasions, or allowed them to do so notwithstanding the absence of any appropriate reason.
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 (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. Here, there is no evidence that any teachers were providing tutoring to students during the recess period. Assuming there was some adult supervision of the recess period a jury can rationally find that a simple inquiry of plaintiff or other students who desired to leave recess to conduct "experiments" with Cohen would have led to further inquiry and knowledge of Cohen's activities. (No evidence that the District monitored the school hallways was presented.) Given these facts, the District cannot prevail on summary judgment simply by professing ignorance.
The District also had a duty to adequately supervise the students in its charge and are liable for foreseeable injuries proximately related to the absence of adequate supervision. Bell v. Board of Educ., 90 N.Y.2d 944 (1997); Basile v. Bd. of Educ. of Glen Cove City School District, 221 A.D.3d 645 (2d Dept. 2023); Kim L. v. Port Jervis City School Dist., 77 A.D.3d 627 (2d Dept. 2010); Doe v. Fulton School Dist., 35 A.D.3d 1194 (4th Dept. 2006); Garcia v. City of New York, 222 A.D.2d 192 (1st Dept. 1996). "[A] teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances." Mirand v. City' of New York, 84 N.Y.2d at 49.
The District failed to present any evidence concerning the manner in which it supervised its students at recess or in the hallways. Although plaintiff testified there was likely one or more monitors of recess outside, he could not recall for certain nor did he discuss their responsibilities or policies. "At recess periods, not less than in the class room," the District had a duty to reasonably supervise its students." Hoose v. Drumm, 281 N.Y. 54, 57-58 (1939). Presumably, 5th grade students were not free to wander around the school grounds or building at their whim. If a jury were to find that the abuse plaintiff suffered was foreseeable under the facts of this case plaintiff may prevail on his negligence claim. See Doe v. Whitney, 8 A.D.3d at 610.
In sum, given the number of occasions that plaintiff and other students were excused from or left recess to be alone with Cohen in a classroom for no valid purpose when they should have been playing outside, the District has not established as a matter of law that it did not negligently supervise plaintiff or that it lacked constructive notice of Cohen's abuse of its students. See Moore Charitable Foundation v. PJT Partners, Inc., 40 N.Y.3d at 158 ("[a]n employer 'should know' of an employee's dangerous propensity if it has reason to know of the facts or events evidencing that propensity").
The District attempts to rely on certain cases in which it was found that the school district was not negligent by permitting the plaintiff-student to meet with a teacher alone behind a closed door. See Ghaffari v. North Rockland Central School District, 23 A.D.3d 342 (2d Dept. 2005); Dia CC. v. Ithaca City School District, 304 A.D.2d 955 (3d Dept. 2003); Mary KK v. Jack LL, 203 A.D.2d 840 (3d Dept. 1994). But here there was no plausibly legitimate reason for plaintiff to be meeting with Cohen, who was not his teacher. Cf, Ghaffari, supra, (private speech lessons) and Dia CC., supra (follow-up testing). As previously noted, a reasonable inquiry of plaintiff or any of the students before their multiple Cohen visits would most likely have revealed this. Further, there is no evidence that anyone employed by the District was even aware that Cohen was meeting with the students. This action is more analogous to those cases in which school districts were denied summary judgment because there was no legitimate reason for the abusive teacher to be meeting privately with the plaintiff-student. See Murray v. Research Foundation of State University of New York, 283 A.D.2d 995 (4th Dept. 2001); see also Doe v. Whitney, 8 AD.3d at 610.
Nor may the District prevail on summary judgment because plaintiff purportedly suffered no damages. If proven, plaintiff was the victim of a sexual assault due to the District's negligence. He suffered a physical violation of his body. He testified that he suffered emotional damage (although he did not seek treatment) and thinks about the abuse weekly. To recover damages for battery a plaintiff must show bodily contact, made with intent and offensive in nature. Siegell v. Herricks Union Free School Di st., 7 A.D.3d 607 (2d Dept. 2004). The extent of damages to which plaintiff may be entitled will be determined by a jury.
Plaintiff's request for punitive damages against the District is stricken. The District, 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).
Finally, the District argues that summary judgment dismissing the complaint must be granted because the claim revival provisions of New York's Child Victims Act violates its due process rights under the State's Constitution. This argument, however, has been rejected by the Appellate Division. See Schearer v. Fitzgerald, 217 A.D.3d 980 (2d Dept. 2023); see also Matarazzo v. Charlee Family Care, Inc., 218 A.D.3d 941 (3d Dept. 2023); PB-36 Doe v. Niagara Falls City School District, 213 A.D.3d 82 (4th Dept. 2023). As a result, the District is not entitled to summary judgment on this ground.
Any relief requested not specifically addressed herein is denied.
This constitutes the Decision and Order of the court.