DOE 42 v. YESHIVA UNIVERSITY (2026)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered on or about April 8, 2024, which, to the extent appealed from as limited by the briefs, denied defendants’ motion to dismiss the complaint as against defendant Robert Hirt and the third cause of action for negligent failure to provide a safe and secure environment as against all defendants, and to strike the demand for punitive damages, unanimously modified, on the law, to dismiss the third cause of action, and otherwise affirmed, without costs.

The four plaintiffs in this appeal allege that at various times between 1971 and 1986, they were subjected to repeated sexual abuse while they were students at Yeshiva University High School.¹  In 2021, plaintiffs brought this action pursuant to CPLR 214–g, the Child Victims Act (CVA).

The complaint alleged three causes of action against defendants Yeshiva University, Marsha Stern Talmudical Academy–Yeshiva University High School for Boys, and Rabbi Robert Hirt:  1) negligent supervision;  2) negligent retention;  and 3) negligent failure to provide a safe and secure environment.  Specifically, each plaintiff claims that Rabbi George Finkelstein, a long-time principal at the high school, sexually abused them on school grounds, and, in some instances, at his apartment.  According to plaintiffs, several Yeshiva University administrators and officials, including Hirt, received numerous sexual abuse complaints against Finkelstein prior to and contemporaneous with the abuse of plaintiffs.  Plaintiffs also allege that before their abuse, some administrators and officials even observed Finkelstein sexually abusing students.

The motion court properly denied defendants’ motion to dismiss all claims against Hirt. Plaintiffs’ allegations that Hirt, as a person in a position of authority at defendant institutions, knew or should have known of the alleged abuser's propensities to commit sexual abuse and either condoned them or covered them up, were sufficient to withstand the dismissal motion (see G.T. v. Roman Catholic Diocese of Brooklyn, N.Y., 211 A.D.3d 413, 413, 180 N.Y.S.3d 75 [1st Dept. 2022];  see also M.O. v. Archdiocese of N.Y., 228 A.D.3d 583, 583–584, 214 N.Y.S.3d 42 [1st Dept. 2024]).  Moreover, the complaint's allegations sufficiently put defendants on notice of the claims against Hirt, as “at this pre-answer stage of the litigation, such information [as to knowledge] is in the sole possession and control of the movant” (G.T., 211 A.D.3d at 413, 180 N.Y.S.3d 75;  see also SHC–MG–25 Doe v. Archdiocese of N.Y., 223 A.D.3d 579, 580, 202 N.Y.S.3d 115 [1st Dept. 2024];  ARK265 Doe v. Archdiocese of N.Y., 221 A.D.3d 422, 422–423, 199 N.Y.S.3d 473 [1st Dept. 2023]).

Plaintiffs’ demand for punitive damages was also properly sustained by the motion court.  The complaint alleges facts supporting plaintiffs’ assertions that defendants were aware generally of systemic sexual abuse, knew specifically of the alleged abuser's propensity to commit sexual abuse, permitted the abuse to occur, and covered it up by admonishing the reporters of the abuse to stop “gossiping.”  In addition, the complaint alleges that these acts were so malicious, willful, and wanton that they constitute a grievous injury to plaintiffs and the public at large, giving rise to punitive damages (see Don Buchwald & Assoc., Inc. v. Rich, 281 A.D.2d 329, 330, 723 N.Y.S.2d 8 [1st Dept. 2001]).  At this prediscovery phase, such allegations suffice to survive defendants’ motion to dismiss the punitive damages demand (see C.R. v. Episcopal Diocese of N.Y., ––– A.D.3d ––––, ––––, 243 N.Y.S.3d 348, 2025 N.Y. Slip Op. 05144, *13 [1st Dept. 2025]).

However, the motion court should have granted defendants’ motion to dismiss plaintiffs’ third cause of action, for negligent failure to provide a safe and secure environment.  To establish a negligence claim, “a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 [1985]).

Here, the duty element for plaintiffs’ third claim is premised on the special duty owed to them under the doctrine of in loco parentis.  The application of this doctrine to schools originated in (Hoose v. Drumm, 281 N.Y. 54, 57–58, 22 N.E.2d 233 [1939]).  In Hoose, the Court of Appeals found that teachers and schools owe their students “such care of them as a parent of ordinary prudence would observe in comparable circumstances” (id. at 58, 22 N.E.2d 233).  This duty stems from the fact that schools “in assuming physical custody and control over [their] students, effectively take[ ] the place of parents and guardians” (see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994]).  Negligence claims based on in loco parentis require actual or constructive notice to the school of previous similar conduct (id.;  cf.  Garcia v. City of New York, 222 A.D.2d 192, 646 N.Y.S.2d 508 [1st Dept. 1996], lv denied 89 N.Y.2d 808, 655 N.Y.S.2d 888, 678 N.E.2d 501 [1997]).²

Although plaintiffs adequately pleaded a claim for negligent failure to provide a safe and secure environment, this claim should have been dismissed as duplicative of plaintiffs’ claims for negligent supervision and negligent retention.  A cause of action is duplicative when it relies on the same facts and seeks the same relief as another cause of action (see e.g. Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce, 70 A.D.3d 423, 426, 894 N.Y.S.2d 47 [1st Dept. 2010], lv denied 15 N.Y.3d 704, 2010 WL 3397330 [2010]).  Significantly, “ ‘it is not the theory behind a claim that determines whether it is duplicative,’ but rather the conduct alleged and the relief sought” (Frank v. OOO RM Inv., 2020 WL 7022317, *18, 2020 U.S. Dist LEXIS 223360, *61 [E.D.N.Y., Nov. 30, 2020, 17–CV–1338 (NGG)(ARL)]).

Here, the fact that the cause of action for negligent failure to provide a safe and secure environment is based on a different theory – the duty of in loco parentis – than the other causes of action pleaded is not germane to whether it is duplicative.  Rather, the claim is duplicative because the conduct alleged and the relief sought, for both the failure to provide a safe and secure environment and the negligent supervision and retention claims, are identical.  Further, this holding is consistent with our prior decisions, which dismissed negligence claims as duplicative of claims for negligent supervision and retention (see e.g. J.P. v. General Conference of United Methodist Church, 235 A.D.3d 545, 546, 229 N.Y.S.3d 21 [1st Dept. 2025] [plaintiff's negligence and premises liability causes of action “fall within the ambit” of his claim for negligent hiring, supervision, retention, and direction and should have been dismissed as duplicative];  D.F. v. General Conference of United Methodist Church, 235 A.D.3d 532, 534, 228 N.Y.S.3d 165 [1st Dept. 2025] [negligence and premises liability causes of action duplicative];  M.D. v. YMCA of the USA, 235 A.D.3d 530, 531, 228 N.Y.S.3d 161 [1st Dept. 2025] [general negligence claim duplicative of the claim for negligent hiring, retention, supervision, and/or direction]).

FOOTNOTES

1.   Plaintiffs’ complaint also incorporated by reference all the allegations in the amended complaint in a related action entitled Twersky v. Yeshiva University (Sup Ct, N.Y. County, index No. 950111/19).

2.   In Garcia, this Court distinguished Mirand and its notice requirement based on the specific facts before it, that a teacher sent a five-year-old child to a public bathroom without accompaniment (Garcia, 222 A.D.2d at 195–196, 646 N.Y.S.2d 508).  The Court concluded that the danger to a child in such circumstances was reasonably foreseeable, thus no specific proof of prior conduct was required to establish that the school had notice (id.).  Garcia is readily distinguishable from the circumstances at issue here.