DOE v. ASCEND CHARTER SCHOOLS (2020)

DECISION & ORDER

ORDERED that the order is affirmed, with one bill of costs to the plaintiffs, payable by the appellant.

The infant plaintiff, and her mother suing derivatively, commenced this action against Ascend Charter Schools (hereinafter Ascend) and Jofaz Transportation, Inc. (hereinafter Jofaz), alleging, inter alia, Ascend's negligent supervision of the infant plaintiff while she rode on a school bus.  The plaintiffs allege, among other things, that in March 2017, while being transported to or from school on a bus owned, leased, operated, or controlled by Jofaz, the infant plaintiff was sexually abused by older students.

The plaintiffs filed their summons and complaint on April 19, 2017, and then filed a first amended complaint on May 4, 2017.  Jofaz answered, but Ascend made a pre-answer motion pursuant to CPLR 3211(a)(7) to dismiss the first amended complaint insofar as asserted against it.  The Supreme Court denied Ascend's motion, with leave to move for summary judgment after the completion of discovery.

After Ascend filed a notice of appeal, the plaintiffs were granted leave to serve a second amended complaint, and thereafter, a third amended complaint.  The third amended complaint adds new causes of action;  however, it does not substantively alter the existing causes of action in the first amended complaint alleging negligent supervision against Ascend.  Therefore, we reject the plaintiffs' contention that service of the third amended complaint renders this appeal academic, since the rights of the parties will be directly affected by the outcome of this appeal (see Grant v. DiFeo, 165 A.D.3d 897, 898, 86 N.Y.S.3d 575;  Anthony J. Demarco, Jr., P.C. v. Bay Ridge Car World, 169 A.D.2d 808, 809, 565 N.Y.S.2d 176).

Turning to the merits, “[o]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Shah v. Exxis, Inc., 138 A.D.3d 970, 971, 31 N.Y.S.3d 512;  see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;  Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511).  “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231;  see EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26).  “In assessing a motion under CPLR 3211(a)(7) ․ a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint” (Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636, 389 N.Y.S.2d 314, 357 N.E.2d 970).  Further, since “the burden does not shift to the nonmoving party on a motion made pursuant to CPLR 3211(a)(7), a plaintiff has ‘no obligation to show evidentiary facts to support [his or her] allegations’ ” (Sokol v. Leader, 74 A.D.3d 1180, 1182, 904 N.Y.S.2d 153, quoting Kotowski v. Hadley, 38 A.D.3d 499, 500–501, 833 N.Y.S.2d 103).

“A court is [also] permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)” (Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153;  see CPLR 3211[c];  Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807–808, 60 N.Y.S.3d 67).  “Yet, affidavits submitted by a defendant ‘will almost never warrant dismissal under CPLR 3211 unless they ‘establish conclusively that [the plaintiff] has no cause of action’ ” (Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153, quoting Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268, quoting Rovello v. Orofino Realty Co., 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970).  Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, dismissal should not eventuate (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17).

Here, we find that the plaintiffs adequately pleaded their negligent supervision cause of action against Ascend, including, but not limited to, allegations that Ascend:  “had a duty to supervise the children within its custody,” “had contracted for bus services with” Jofaz, and “had obtained prior written notice of similar sexual conduct that the infant plaintiff ․ had been subjected to.”

In support of its motion to dismiss, Ascend submitted, among other things, the affidavit of Andrew Epstein, the chief financial officer of Ascend's parent corporation, who averred, in a conclusory fashion, that on the date of the subject incident, Ascend had no contract with Jofaz, did not hire, contract with, retain, employ, supervise or in any way control Jofaz with respect to the transportation of the infant plaintiff, and, finally, had no knowledge, written or otherwise, of inappropriate sexual behavior on the school bus.  The defendant's submissions in support of its motion were insufficient to conclusively establish that the plaintiffs have no cause of action against Ascend for negligent supervision (see Lawrence v. Graubard Miller, 11 N.Y.3d at 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268;  Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153).

Accordingly, we agree with the Supreme Court's determination denying Ascend's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

CHAMBERS, J.P., AUSTIN, MILLER and CHRISTOPHER, JJ., concur.