A.V., Plaintiff, v. New York City Department of Education, Defendants. (2026)

Before the court are the branches of Plaintiff's motion in limine to (a) preclude defendant New York City Department of Education (NYC DOE) from seeking apportionment of liability, pursuant to CPLR Article 16, against nonparty N.B. at trial; and (b) to exclude N.B. from the verdict sheet.

On August 12, 2026, the parties appeared before the court for oral argument. At that time, the court issued an oral decision and a short form order. This written decision further memorializes that ruling.

Background

On June 25, 2021, Plaintiff commenced this action under the Child Victims Act (CVA) (see CPLR 214-g) by e-filing the summons and complaint with the Kings County Clerk (NYSCEF Doc Nos. 1 [summons], 2 [complaint]; see NYSCEF Doc No. 124 [amended complaint]). The complaint alleges that in 1969, at the age of 13 years old, Plaintiff, then a student at a NYC DOE public school, was sexually abused by a teacher, N.B. (Amended Complaint ¶ 21). The complaint further alleges that NYC DOE's "acts, conduct, and omissions showed a reckless or willful disregard for the safety and well-being of Plaintiff and other children" (id. ¶ 48). Plaintiff, therefore, seeks damages against NYC DOE under a cause of action for negligence, sounding in negligent supervision and retention (id. ¶¶ 40-48).

Plaintiff now argues that CPLR Article 16 is "inapplicable and unavailable as a matter of law" (NYSCEF Doc No. 137, Plaintiff's Aff ¶¶ 48-49). Plaintiff advances three grounds in support of precluding NYC DOE from limiting its liability under Article 16. First, Plaintiff maintains that the culpability of nonparty N.B. should not be considered at trial because Plaintiff was unable to obtain jurisdiction over N.B., as required by CPLR 1601(1). Second, Plaintiff argues that because CVA actions necessarily entail proof of intentional sexual misconduct, this action falls squarely within the exception for "actions requiring proof of intent" under CPLR 1602(5). Third, Plaintiff contends that Article 16 is unavailable under CPLR 1602(7) because NYC DOE acted with reckless disregard for the safety of others. Plaintiff also submits that inclusion of N.B. on the verdict sheet at trial would frustrate the legislative purpose underlying the CVA.

NYC DOE opposes each of these contentions. As a threshold matter, NYC DOE argues that Plaintiff failed to adequately plead any specific Article 16 exception (see CPLR 1603). According to NYC DOE, the complaint contains a vague and conclusory allegation that Article 16 is inapplicable, which failed to provide sufficient notice of the statutory grounds upon which Plaintiff now relies. On the merits, NYC DOE disputes Plaintiff's jurisdictional claims arguing that Plaintiff has not demonstrated that jurisdiction over N.B., or N.B.'s estate, could not have been obtained through the exercise of due diligence. NYC DOE further submits that the proof of intent exception is inapplicable here because Plaintiff's asserted claim sounds in negligence and does not require proof that the defendant, rather than the nonparty tortfeasor, acted intentionally. As a final point, NYC DOE contends that the reckless disregard exception is premature and cannot be determined at this stage because whether the defendant acted with the requisite degree of culpability (i.e., reckless disregard) is a factual question to be determined at trial. The proper order, per NYC DOE, is for the jury to first "apportion liability between [NYC DOE] and [nonparty N.B.], then determine whether [NYC DOE] acted with reckless disregard" (NYSCEF Doc No. 151, NYC DOE's Memo at 16).

Discussion

A motion in limine generally functions "to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting its use" (State v Metz, 241 AD2d 192, 198 [1st Dept 1998]; see Rondout Elec., Inc. v Dover Union Free School Dist., 304 AD2d 808, 810 [2d Dept 2003] [motion in limine is a pretrial "request that certain inadmissible evidence not be referred to or offered at trial"]). Although there is no express statutory authority for the making of a motion in limine, the court's power to admit or exclude evidence at trial "is inherent in its power to function as a court" (People v Michael M., 162 Misc 2d 803, 806 [Sup Ct, Kings County 1994]; see CPLR 4011 [court may regulate conduct of trial]; CPLR 4017 [objections to court rulings]; Matter of Grisi v Shainswit, 119 AD2d 418, 421 [1st Dept 1986] [courts have responsibility to supervise course of litigation before them]).

As relevant here, CPLR Article 16 modifies the common-law rule of joint and several liability to provide a personal injury defendant with limited liability apportioned to their share of fault. It was enacted to limit a joint tortfeasor's liability for noneconomic loss to its equitable share where that tortfeasor is found to be 50 percent or less at fault (see CPLR 1601[1]). In other words, its purpose is "to assure that no defendant who is assigned a minor degree of fault can be forced to pay an amount grossly out of proportion to that assignment" (Rangolan v County of Nassau, 96 NY2d 42, 46 [2001]).

Pleading Requirement

The party invoking an exception to Article 16 is required to allege in its pleadings and prove by a preponderance of the evidence that any of the delineated exceptions apply (Cole v Mandell Food Stores, Inc., 93 NY2d 34, 38-39 [1999]; Roseboro v New York City Tr. Auth., 286 AD2d 222, 222 [1st Dept 2001]). On the other hand, the party relying on the limitation of liability must prove by a preponderance of the evidence that its share of liability is 50 percent or less (Cole, 93 NY2d at 39). The Court of Appeals reasoned that "a defendant potentially subject to the weight of a full judgment must have appropriate notice provided by pleadings" (id. at 40). Here, neither Plaintiff's original complaint nor his subsequently amended complaints allege that Plaintiff, despite due diligence, was unable to obtain jurisdiction over N.B., as is necessary to invoke CPLR 1601(1). In fact, Plaintiff's second amended complaint references N.B. on at least 35 different occasions, but fails to state or explain why jurisdiction cannot be asserted over N.B. (see Roseboro, 286 AD2d at 222 [plaintiff must allege and prove exemption stated in CPLR 1601(1)]). Likewise, the complaint asserts in conclusory fashion that Article 16 is not applicable because the defendant acted "knowingly or intentionally, in concert with its agents and employees" (Second Amended Complaint ¶ 39). Such a statement is no more than a general assertion that fails to particularize the statutory exception relied upon, which is insufficient (see Roseboro, 286 AD2d at 223 [general assertion in complaint that "action falls into one or more of the exceptions" deemed waiver]). Thus, Plaintiff's argument that the limitation on apportionment does not apply, based upon his inability to obtain jurisdiction under CPLR 1601(1) and the proof of intent exception under CPLR 1602(5), is deemed waived.

A different result is necessary for Plaintiff's reliance on the reckless disregard exception under CPLR 1602(7). The complaint alleges that "[t]he limitation of liability set forth in CPLR Art. 16 is not applicable to the claim of personal injury alleged herein, by reason of one or more of the exemptions provided in CPLR § 1602, including without limitation, that Defendants acted with reckless disregard for the safety of Plaintiff, or knowingly or intentionally, in concert with its agents and employees" (Second Amended Complaint ¶ 39). This language clearly places NYC DOE on notice that Plaintiff intends to prove at trial the heightened culpable conduct of reckless disregard for the safety of others.

Accordingly, Plaintiff sufficiently pled the reckless disregard exception, but failed to adequately plead any other CPLR Article 16 exception. Notwithstanding, the court addresses the merits of each claimed exception.

Inability to Obtain Jurisdiction: CPLR 1601(1)

Under CPLR 1601(1), apportionment against a nonparty tortfeasor is permitted unless the plaintiff "proves that with due diligence he or she was unable to obtain jurisdiction" over the nonparty. Consequently, Plaintiff bears the burden to demonstrate both the exercise of due diligence and an inability to obtain jurisdiction.

Here, Plaintiff contends that "it is undisputed that [N.B.] is deceased" and that "[a] diligent search has shown that not only is [N.B.] deceased, but there is no active estate in his name" (NYSCEF Doc No. 137, Plaintiff's Aff ¶ 63). Assuming, without concluding, that N.B.'s death is not disputed by NYC DOE, that circumstance alone does not end the inquiry because the right to recover for injury is not extinguished by the death of a tortfeasor (see EPTL 11-3.2[a][1]). Instead, the proper course is for Plaintiff to commence suit against "the personal representative of the decedent" (id.; see Krysa v Estate of Qyra, 136 AD3d 760 [2d Dept 2016] [since tortfeasor was deceased when suit commenced, plaintiff was required to commence suit against personal representative]).

It is also not dispositive to this analysis that "there is no active estate" in nonparty N.B.'s name. "An estate is not a legal entity and any action for or against the estate must be by or against the executor or administrator in his or her representative capacity" (Grosso v Estate of Gershenson, 33 AD3d 587 [2d Dept 2006] [internal quotation marks omitted], quoting 100 W. 72nd St. Assoc. v Murphy, 144 Misc 2d 1036, 1040 [Civ Ct, NY County 1989]). Where no letters of administration have been issued for the estate of an intestate, there are "procedures available to petition Surrogate's Court for appointment of an administrator for decedent's estate" (Hegbeli v Olanescu, 236 AD3d 567, 568 [1st Dept 2025]; see SCPA 1002 [persons entitled to petition for appointment of an administrator]). SCPA 1002(1) specifically authorizes any "creditor or a person interested in an action brought or about to be brought in which the intestate or the person alleged to be deceased, if living, would be a proper party may present a petition to the court having jurisdiction praying for a decree granting letters of administration."

On these papers, there is no competent proof attached to demonstrate when N.B. died, which is a fact relevant and material to determining whether Plaintiff could have obtained jurisdiction over N.B. There is also no proof reflecting the nature and scope of the purported "diligent search" undertaken or that there is "no active estate in his name." This motion is silent as to whether any Surrogate's Court proceeding had ever been commenced, whether a personal representative had been appointed, or whether Plaintiff had taken any steps to petition for the appointment of a personal representative pursuant to SCPA 1002(1).

The lack of proof warrants denial of this branch of Plaintiff's application to preclude Article 16 on the ground that Plaintiff was unable to obtain jurisdiction over N.B.

Proof of Intent Exception: CPLR 1602(5)

CPLR 1602(5) deprives defendants of reduced liability in personal injury actions "requiring proof of intent." The gravamen of Plaintiff's argument in this regard is that all CVA actions require proof of intent since CPLR 214-g requires a CVA plaintiff to prove that the plaintiff was a victim of conduct which would constitute a sexual offense under the Penal Law. Plaintiff also reasons that when the Legislature enacted CPLR 1602(5), "the Legislature did not state that a plaintiff's claim must require proof of intent, it stated that the plaintiff's action must do so" (NYSCEF Doc No. 137, Plaintiff's Aff ¶ 66).

Contrary to Plaintiff's arguments, the fact that this claim was revived by the CVA does not alter the "proof of intent" analysis. Despite the CVA's language requiring a plaintiff to establish a predicate intentional sex offense, that requirement does not transform a cause of action for negligence into an intentional tort within the meaning of CPLR 1602(5). Rather, the argument that Plaintiff now advances was previously made and rejected by the Court of Appeals in Chianese v Meier (98 NY2d 270 [2002]). In that case, the plaintiff was attacked when entering her apartment building and alleged inadequate building security in a suit against the building owner. The Chianese plaintiff sought to recover against the alleged negligent building owner for injuries caused by the nonparty intentional tortfeasor. Similar to the arguments raised here, in Chianese, plaintiff argued "that her negligence claim against defendants, because it necessarily involves [the nonparty's] intentional act, is also an 'action requiring proof of intent,' thus precluding apportionment by defendants (98 NY2d at 276). The Court explained that

[d]efendants' liability, however, did not depend on proof of [the nonparty's] state of mind. To prove her case, plaintiff had only to show that she was injured as a result of the defendants' failure to provide adequate security on their premises. That a nonparty tortfeasor acted intentionally does not bring a pure negligence action within the scope of the exclusion

(id. at 277).The Second Department similarly found that where a lawsuit only seeks to recover damages for negligence, the action is not somehow converted into an intentional tort merely because plaintiff's injuries were primarily due to the conduct of an intentional tortfeasor (Siler v 146 Montague Assoc., 228 AD2d 33, 39 [2d Dept 1997] ["CPLR 1602 (5) is not intended to limit the application of CPLR 1601 unless the intent of the defendant is at issue"]).The circumstances of this case present a hybrid situation where Plaintiff seeks damages from defendant NYC DOE for nonparty N.B.'s intentional sexual misconduct. The relevant intent of the defendant in this action is based upon the sole claim asserted in the complaint — negligence.

Neither Plaintiff's reliance upon the remedial purposes of the CVA nor his argument that the sexual conduct underlying CVA claims involve intentional conduct compel a different result. Although CPLR 214-g requires that the injury result from "conduct which would constitute a sexual offense" as defined in certain sections of the Penal Law, Plaintiff erroneously treats "intent" as though it carries a single, uniform meaning. In the criminal context, a person acts "intentionally" with respect to a result or to conduct when that person's "conscious objective" is to cause the proscribed result or to engage in the proscribed conduct (id. § 15.05[1]). The Penal Law, however, defines four distinct culpable mental states — intentionally, knowingly, recklessly, and criminal negligence — the applicability of which depends upon the construction of the statute for a particular offense (see Penal Law §§ 15.05; 15.15). Therefore, all proscribed criminal conduct does not necessarily entail "intentional" culpable conduct. In fact, some of the criminal statutes stated in CPLR 214-g require a lesser mens rea. For example, Incest (Penal Law §§ 255.25; 255.26; 255.27) requires knowledge that the victim was of familial relation; Use of a Child in a Sexual Performance (Penal Law § 263.05) requires that a person employs, authorizes or induces a child into a sexual performance knowing the character and content of said sexual performance; and Rape (Penal Law §§ 130.25; 13.30; 130.35) is a strict liability offense that does not require any culpable mental state. Article 130 of the Penal Law is replete with offenses that impose varying culpability requirements, or none at all, and also contains age-based elements that do not require knowledge of the complainant's age.

From a statutory interpretation perspective, the court must, where possible, give effect to all the language employed in a particular statute and avoid interpretations that render statutory language superfluous or without independent effect (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479 [2001] ["Words are not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning"]). Statutory provisions must also be construed together and harmonized with each other so that one construction does not nullify another part of the statute (see Rangolan, 96 NY2d at 48 [2001]). Plaintiff's interpretation on these papers does the opposite. The express language in CPLR 214-g revives "every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person" resulting in injury from certain qualifying sexual misconduct (CPLR 214-g [emphasis added]). Plaintiff effectively renders the words "or negligent" meaningless by treating every revived claim as one requiring proof of intent regardless of the substantive theory of liability sought to be imposed upon the named defendant. Moreover, the Second Department has held that the "conduct which would constitute a sexual offense" as defined in the Penal Law does not require Plaintiff to establish a violation of any particular criminal statute as the prosecution would in a criminal case (Anonymous v Castagnola, 210 AD3d 940, 942 [2d Dept 2022]). "Thus, CPLR 214—g identifies the conduct, and not the criminal liability, that supports revival of a civil cause of action" (Doe v Wilhelmina Models, Inc., 229 AD3d 128, 142 [1st Dept 2024]).

Plaintiff's only claim against the named defendant, NYC DOE, sounds in negligence not intentional acts. Indeed, Plaintiff must prove that NYC DOE owed a duty of care, had actual or constructive notice of nonparty N.B.'s propensity for child abuse, breached that duty, and thereby proximately caused Plaintiff's injuries.

Accordingly, the Penal Law's mens rea element for the underlying abusive conduct did not elevate Plaintiff's negligence cause of action against NYC DOE into an "action requiring proof of intent" for purposes of CPLR 1602(5).

Reckless Disregard: CPLR 1602(7)

Article 16's liability protections also do not apply to "any person held liable for causing claimant's injury by having acted with reckless disregard for the safety of others" (CPLR 1602[7]). "Reckless disregard" is likened to the tort concept of "recklessness" and requires "the conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome" (Szczerbiak v Pilat, 90 NY2d 553, 557 [1997], citing Saarinen v Kerr, 84 NY2d 494, 501-502 [1994]).

Plaintiff alleges that NYC DOE not only negligently failed to discover or prevent N.B.'s sexual abuse but also consciously disregarded N.B.'s known danger to Plaintiff and other students. Although sufficiently pled, proof has yet to be adduced at trial regarding the factual basis, if any, on which liability is ultimately imposed (see PC-38 Doe v St. Peter and Paul Roman Catholic Church, 2026 NY Slip Op 31875[U], *14 [Sup Ct, Kings County 2026]). If the evidence at trial supports that theory of liability, and a factfinder determines that NYC DOE itself acted with reckless disregard for the safety of others, CPLR 1602(7) would preclude NYC DOE from invoking Article 16's limitation. At this stage, however, a determination that CPLR 1602(7) categorically bars NYC DOE from obtaining Article 16 protection would require the court to determine, before trial, the degree of NYC DOE's culpability. Here, there have been no summary judgment motions filed to test the triable issues of fact, and no issues or facts have been deemed established for purposes of trial. It would be premature to conclude at this stage that CPLR 1602(7) precludes NYC DOE from invoking Article 16.

Accordingly, Plaintiff may pursue the reckless disregard exception at trial if supported by the evidence. In turn, and if appropriate, the jury may be asked through written interrogatories whether NYC DOE acted with reckless disregard for the safety of others. Until such a finding is made, however, CPLR 1602(7) does not provide a basis for declaring Article 16 unavailable as a matter of law at this juncture.

CONCLUSION

In accordance with the foregoing, and as set forth on the record, it is hereby

ORDERED that Plaintiff's motion in limine for an order finding that the limited liability provisions contained in CPLR Article 16 do not apply is denied; and it is further

ORDERED that the verdict sheet shall include both nonparty N.B.'s name and a written interrogatory inquiring whether the defendant acted with reckless disregard prior to the apportionment question.

This constitutes the order of the court.

Dated: September 9, 2026

E N T E R:

nunc pro tunc to August 12, 2026

Hon. Joanne D. Quiñones

Justice of the Supreme Court

Joanne D. Quiñones, J.