J. J., appellant, v. MINEOLA SCHOOL DISTRICT (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), dated August 29, 2023.  The order, insofar as appealed from, granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

In June 2021, the plaintiff commenced this action pursuant to CPLR 214–g against the defendants, Mineola School District and Mineola Middle School, to recover damages for personal injuries.  The plaintiff alleged that the defendants had notice of sexual abuse committed by a teacher upon the plaintiff when the plaintiff was a student at the defendants’ school during the 2013–2014 school year and that the defendants negligently failed to prevent the abuse.  The defendants moved for summary judgment dismissing the complaint, contending that they did not have actual or constructive notice of the alleged sexual abuse.  The plaintiff opposed the motion.  In an order dated August 29, 2023, the Supreme Court, inter alia, granted the defendants’ motion.  The plaintiff appeals.

“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” (Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d 634, 635, 85 N.Y.S.3d 562, [citations and internal quotation marks omitted];  see Sayegh v. City of Yonkers, 228 A.D.3d 690, 691, 213 N.Y.S.3d 129;  Jackson v. New York Univ. Downtown Hosp., 69 A.D.3d 801, 801, 893 N.Y.S.2d 235).  “ ‘[A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury’ ” (D.T. v. Sports & Arts in Schs. Found., Inc., 193 A.D.3d 1096, 1097, 147 N.Y.S.3d 622, quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791;  see Hammill v. Salesians of Don Bosco, 228 A.D.3d 738, 739, 212 N.Y.S.3d 200).

“A school ‘has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision’ ” (J.B. v. Monroe–Woodbury Cent. Sch. Dist., 224 A.D.3d 722, 723, 206 N.Y.S.3d 98, quoting Destiny S. v. John Quincy Adams Elementary Sch., 98 A.D.3d 1102, 1102, 951 N.Y.S.2d 217;  see Tutaj v. Seaford Union Free Sch. Dist., 179 A.D.3d 968, 969, 117 N.Y.S.3d 297).  “ ‘The standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information’ ” (Nevaeh T. v. City of New York, 132 A.D.3d 840, 841–842, 18 N.Y.S.3d 415, quoting Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d 826, 828, 7 N.Y.S.3d 348;  see MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d 845, 847, 207 N.Y.S.3d 669).  “ ‘The adequacy of a school's supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff's injury’ ” (Nizen–Jacobellis v. Lindenhurst Union Free Sch. Dist., 191 A.D.3d 1007, 1008, 143 N.Y.S.3d 368, quoting RT v. Three Vil. Cent. Sch. Dist., 153 A.D.3d 747, 748, 59 N.Y.S.3d 483;  see J.S. v. Ramapo Cent. Sch. Dist., 205 A.D.3d 947, 949, 166 N.Y.S.3d 584).  “Where the complaint alleges negligent supervision due to 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” (Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d at 828, 7 N.Y.S.3d 348;  see Kwitko v. Camp Shane, Inc., 224 A.D.3d at 896, 206 N.Y.S.3d 356).  “ ‘Actual or constructive notice to the school of prior similar conduct generally is required’ ” (Nevaeh T. v. City of New York, 132 A.D.3d at 842, 18 N.Y.S.3d 415, quoting Mathis v. Board of Educ. of City of N.Y., 126 A.D.3d 951, 952, 7 N.Y.S.3d 182;  see Sayegh v. City of Yonkers, 228 A.D.3d at 691–692, 213 N.Y.S.3d 129).

Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the teacher's alleged abusive propensities and conduct (see Sayegh v. City of Yonkers, 228 A.D.3d at 692, 213 N.Y.S.3d 129;  MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d at 847–848, 207 N.Y.S.3d 669;  Kwitko v. Camp Shane, Inc., 224 A.D.3d 895, 896, 206 N.Y.S.3d 356).  In particular, the defendants submitted a transcript of the plaintiff's deposition testimony, in which the plaintiff testified that the principal and other teachers were aware of the teacher's inappropriate behavior, which occurred multiple times throughout the school year in a classroom on the defendants’ premises during school hours (see Sayegh v. City of Yonkers, 228 A.D.3d at 692, 213 N.Y.S.3d 129;  MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d at 847–848, 207 N.Y.S.3d 669;  Nevaeh T. v. City of New York, 132 A.D.3d at 842, 18 N.Y.S.3d 415;  cf.  KM v. Fencers Club, Inc., 164 A.D.3d 891, 892–893, 83 N.Y.S.3d 197).

Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

CONNOLLY, J.P., IANNACCI, WARHIT and LOVE, JJ., concur.