SALLUSTIO v. SOUTHERN WESTCHESTER BOARD OF COOPERATIVE EDUCATIONAL SERVICES (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Leonard D. Steinman, J.), dated January 5, 2024.  The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing the second, fourth, fifth, and sixth causes of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants’ motion which were for summary judgment dismissing the second, fourth, fifth, and sixth causes of action are denied.

The plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214–g), alleging, among other things, that the defendants negligently failed to prevent sexual abuse perpetrated by their employee, a teacher (hereinafter the teacher), upon the plaintiff from 1968 to 1970.  Thereafter, the defendants moved for summary judgment dismissing the complaint.  The defendants contended, inter alia, that they did not have actual or constructive notice of the teacher's alleged propensity to engage in sexual abuse or of the abuse he allegedly perpetrated upon the plaintiff.  In an order dated January 5, 2024, the Supreme Court, among other things, granted those branches of the defendants’ motion which were for summary judgment dismissing the second, fourth, fifth, and sixth causes of action, alleging, respectively, negligence, negligent hiring, negligent supervision and training, and negligent retention of the teacher.  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, [training,] and supervision of the employee” (Sayegh v. City of Yonkers, 228 A.D.3d 690, 691, 213 N.Y.S.3d 129 [internal quotation marks omitted];  see Hammill v. Salesians of Don Bosco, 228 A.D.3d 738, 739, 212 N.Y.S.3d 200).  “To establish a cause of action based on negligent hiring, negligent retention, [negligent training,] or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury” (MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d 845, 846, 207 N.Y.S.3d 669 [internal quotation marks omitted];  see Nevaeh T. v. City of New York, 132 A.D.3d 840, 842, 18 N.Y.S.3d 415).  “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, ․ retention, [training,] or supervision of the employee” (Sayegh v. City of Yonkers, 228 A.D.3d at 691, 213 N.Y.S.3d 129 [internal quotation marks omitted];  see Hammill v. Salesians of Don Bosco, 228 A.D.3d at 739, 212 N.Y.S.3d 200).

Moreover, “[a]n entity to whom the custody of a child is entrusted has a duty to adequately supervise children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Kwitko v. Camp Shane, Inc., 224 A.D.3d 895, 895–896, 206 N.Y.S.3d 356 [internal quotation marks omitted];  see MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d at 847, 207 N.Y.S.3d 669).  “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” (MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d at 847, 207 N.Y.S.3d 669 [internal quotation marks omitted];  see Volkel v. Smithtown Gospel Tabernacle, 231 A.D.3d 1088, 1089, 220 N.Y.S.3d 816).  “Where alleged negligent supervision results in injuries related to an individual's intentional acts, the plaintiff generally must establish as an element of the claim 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” (MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d at 847, 207 N.Y.S.3d 669 [alteration and internal quotation marks omitted];  see Sayegh v. City of Yonkers, 228 A.D.3d at 691, 213 N.Y.S.3d 129).  “Therefore, actual or constructive notice to the school of prior similar conduct generally is required” (Sayegh v. City of Yonkers, 228 A.D.3d at 691, 213 N.Y.S.3d 129 [alterations and internal quotation marks omitted];  see Mathis v. Board of Educ. of City of N.Y., 126 A.D.3d 951, 952, 7 N.Y.S.3d 182).  Nonetheless, “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” (MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d at 847, 207 N.Y.S.3d 669 [alterations and internal quotation marks omitted];  see J.S. v. Ramapo Cent. Sch. Dist., 205 A.D.3d 947, 949, 166 N.Y.S.3d 584).

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;  Kwitko v. Camp Shane, Inc., 224 A.D.3d at 896, 206 N.Y.S.3d 356).  In particular, given the frequency of the alleged abuse, which occurred once or twice per week over the course of three school years in the same closet while the teacher left the other students in his class unattended, the defendants failed to eliminate triable issues of fact as to whether they should have known of the abuse (see Stanton v. Longwood Cent. Sch. Dist., 233 A.D.3d 1010, ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op. 06600, *8–9;  C.M. v. West Babylon Union Free Sch. Dist., 231 A.D.3d 809, 812–813, 220 N.Y.S.3d 789).  Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher was negligent (see C.M. v. West Babylon Union Free Sch. Dist., 231 A.D.3d at 813, 220 N.Y.S.3d 789;  Sayegh v. City of Yonkers, 228 A.D.3d at 692, 213 N.Y.S.3d 129).

Further, although the plaintiff alleged acts of sexual abuse that occurred outside of school premises and school hours, the defendants’ submissions showed that those alleged acts were preceded by instances when the plaintiff allegedly was sexually abused by the teacher during school hours on a regular basis.  Under these circumstances, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the second, fourth, fifth, and sixth causes of action with respect to the allegations of sexual abuse outside of school premises (see PB–20 Doe v. St. Nicodemus Lutheran Church, 228 A.D.3d 1233, 1237–1238, 212 N.Y.S.3d 781;  Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d 634, 636, 85 N.Y.S.3d 562).

Accordingly, the Supreme Court should have denied those branches of the defendants’ motion which were for summary judgment dismissing the second, fourth, fifth, and sixth causes of action, 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).

BARROS, J.P., WOOTEN, LOVE and HOM, JJ., concur.