HODGES v. WESTCHESTER COUNTY (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the plaintiff appeals from an order of the Supreme Court, Westchester County (Gretchen Walsh, J.), dated July 2, 2025.  The order, insofar as appealed from, granted the motion of the defendants Westchester County and State University of New York Westchester Community College for summary judgment dismissing the complaint insofar as asserted against them.

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

In 2008, the defendant Lawrence Bottone allegedly introduced himself to the plaintiff, a student at the defendant State University of New York Westchester Community College (hereinafter WCC), as a professor at WCC who had a contract with the CIA. Bottone allegedly asked the plaintiff to meet him in the campus gym building for CIA training, where Bottone, among other things, allegedly sexually abused the plaintiff.

The plaintiff commenced this action pursuant to the Adult Survivors Act (see CPLR 214–j) against, among others, WCC and the defendant Westchester County (hereinafter together the defendants), alleging, among other things, that the defendants had a duty to supervise Bottone and that they negligently failed to protect the plaintiff from acts of sexual abuse committed by Bottone on the WCC campus.  Thereafter, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them.  In support of the motion, the defendants submitted, inter alia, a transcript of Bottone's deposition testimony acknowledging that he was never employed by WCC. The plaintiff opposed the defendants' motion.  In an order dated July 2, 2025, the Supreme Court, among other things, granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.  The plaintiff appeals.

“When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose” (Neary v Suffolk County Sheriff's Dept., 234 AD3d 706, 707 [internal quotation marks omitted];  see Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425;  Koyko v. City of New York, 189 AD3d 811, 812).  “If the municipality is engaged in a proprietary function, it is subject to suit under the ordinary rules of negligence” (Neary v Suffolk County Sheriff's Dept., 234 AD3d at 707 [internal quotation marks omitted];  see Adams v. Suffolk County, 234 AD3d 1, 4).  “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers” (Applewhite v. Accuhealth, Inc., 21 NY3d at 425 [internal quotation marks omitted];  see Neary v Suffolk County Sheriff's Dept., 234 AD3d at 707).  “The relevant inquiry in determining whether a governmental [entity] is acting within a governmental or proprietary capacity is to examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred ․, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” (Neary v Suffolk County Sheriff's Dept., 234 AD3d at 707 [internal quotation marks omitted];  see Talisaysay v. State of New York, 220 AD3d 652, 653).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging negligence insofar as asserted against them by submitting evidence demonstrating that the actions or inactions complained of concerning lack of adequate supervision involved the performance of a governmental function, for which the defendants were immune from liability (see Bonner v. City of New York, 73 N.Y.2d 930, 932;  Laura O. v. State of New York, 202 A.D.2d 559, 560;  Marilyn S. v. City of New York, 134 A.D.2d 583, 585, affd 73 N.Y.2d 910).  In opposition, the plaintiff failed to raise a triable issue of fact (see Bawa v. City of New York, 94 AD3d 926, 928–929).

To the extent that the plaintiff contends that the defendants failed to provide gates, locks, card readers, or other access control devices at the entrances to the campus or the gym building, the plaintiff's contention is improperly raised for the first time on appeal and not properly before this Court (see TJG Realty of Rockland, LLC v Con Serv Constr., Inc., 218 AD3d 713, 717).

“[U]nder the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment” (Campolongo v. DR & RD, Inc., 241 AD3d 1417, 1419 [internal quotation marks omitted];  see Nickey v. City of Mt. Vernon, 230 AD3d 590, 591).  Here, the defendants established, prima facie, that they did not employ or retain Bottone in any capacity (see Capobianco v. Marchese, 125 AD3d 914, 917;  Oliva v. City of New York, 297 A.D.2d 789, 790).  In opposition, the plaintiff failed to raise a triable issue of fact (see Capobianco v. Marchese, 125 AD3d at 917).

In light of our determination, we need not reach the plaintiff's remaining contentions.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

BARROS, J.P., WOOTEN, DOWLING and LANDICINO, JJ., concur.