S. W., appellant, v. Suffolk County Community College, respondent (and third-party actions). (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Christopher Modelewski, J.), dated September 23, 2024.  The order, insofar as appealed from, granted those branches of the motion of the defendant Suffolk County Community College which were for summary judgment dismissing the causes of action alleging negligence against it and negligent hiring, supervision, and retention insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214–g) against, among others, the defendant Suffolk County Community College (hereinafter SCCC), inter alia, to recover damages for personal injuries.  According to the plaintiff, as a child in 1980 and 1981, he was sexually abused by Kenneth Talbot, who was employed by SCCC. The plaintiff alleged that the abuse occurred, among other places, on SCCC's campus and that SCCC negligently failed to prevent the abuse.  SCCC moved, among other things, for summary judgment dismissing the causes of action alleging negligence against it and negligent hiring, supervision, and retention insofar as asserted against it.  In opposition, the plaintiff contended that there were triable issues of fact as to whether SCCC had constructive notice of Talbot's conduct.  In an order dated September 23, 2024, the Supreme Court, inter alia, granted those branches of SCCC's 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” (Stanton v. Longwood Cent. Sch. Dist., 233 A.D.3d 1010, 1013, 226 N.Y.S.3d 85 [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, 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” (Hammill v. Salesians of Don Bosco, 228 A.D.3d at 739, 212 N.Y.S.3d 200 [internal quotation marks omitted];  see Hashimi v. Gap, Inc., 232 A.D.3d 857, 858, 221 N.Y.S.3d 664).  “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[, or supervision] of the employee” (T.F. v. Clarkstown Cent. Sch. Dist., 238 A.D.3d 988, 989, 235 N.Y.S.3d 395 [internal quotation marks omitted];  see MCVAWCD–DOE v. Columbus Ave. Elementary Sch., 225 A.D.3d 845, 846–847, 207 N.Y.S.3d 669).  “There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” (Hashimi v. Gap, Inc., 232 A.D.3d at 858–859, 221 N.Y.S.3d 664 [internal quotation marks omitted];  see KM v. Fencers Club, Inc., 164 A.D.3d 891, 893, 83 N.Y.S.3d 197).

Similarly, “as property owner or occupier, a school, even at the college level, may be held liable for injuries to another person on the property caused by the criminal activity of a third party if the school ‘knew or should have known from past experience that there was a likelihood of criminal conduct which would endanger the safety of such person’ ” (Doe v. Educational Inst. Oholei Torah, 235 A.D.3d 843, 845, 228 N.Y.S.3d 604, quoting Adiutori v. Rabovsky Academy of Dance, 149 A.D.2d 637, 638, 540 N.Y.S.2d 457).  “Lacking such notice, there is no duty on the part of the landowner to provide protective measures, as foreseeability of harm is the measure of a landowner's duty of care” (id. [internal quotation marks omitted]).

Contrary to the plaintiff's contention, SCCC established, prima facie, that it lacked constructive notice of Talbot's alleged abusive propensities and conduct (see Hashimi v. Gap, Inc., 232 A.D.3d at 858, 221 N.Y.S.3d 664;  Guarino v. ProHEALTH Care Assoc., LLP, 219 A.D.3d 467, 468, 194 N.Y.S.3d 517).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted those branches of SCCC's motion which were for summary judgment dismissing the causes of action alleging negligence against it and negligent hiring, supervision, and retention insofar as asserted against it.

CHAMBERS, J.P., DOWLING, WAN and MCCORMACK, JJ., concur.