FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
`INDEX NO. 20-46602
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`EXHIBIT N
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`EXHIBIT N
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`STATE OF NEW YORK : COUNTY OF ERIE
`SUPREME COURT
`_____________________________________________
`AB 514 DOE,
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` PLAINTIFF, INDEX #805688/2020
`
` -VS-
` MOTION
`AMHERST CENTRAL SCHOOL DISTRICT,
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` DEFENDANT,
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`_____________________________________________
`
` Virtual Proceedings
` Buffalo, New York
` April 25, 2022.
`
`HELD BEFORE: HONORABLE DEBORAH A. CHIMES,
` SUPREME COURT JUSTICE.
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`APPEARANCES: LEAH COSTANZO, ESQ.,
` Appearing for the Plaintiff.
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` JULIA HILLIKER, ESQ.,
` Appearing for the Defendant.
`
`
` LISA G. PAZDERSKI,
` Supreme Court Reporter.
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`THE CLERK: In the matter of AB 514 Doe
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`versus Amherst Central School District.
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`Counselors, please note your appearance, beginning
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`with the plaintiff.
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`MS. COSTANZO: Leah Costanzo for the
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`plaintiff AB 514 Doe.
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`MS. HILLIKER: Julia Hilliker on behalf of
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`the defendant Amherst Central School District.
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`THE COURT: All right. Ms. Hilliker, I think
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`you brought the first motion, so, you may proceed.
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`MS. HILLIKER: Thank you, Your Honor. May it
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`please the Court, I will cover the highlights.
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`There was extensive briefing in this matter, but
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`if for any reason I don't touch on one of the
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`points that the Court would like to discuss,
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`please let me know.
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`Here, as the Court knows, there's been five
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`cases against the Amherst School District all sued
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`separately for various plaintiffs at various
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`points in time. Importantly, and for purposes of
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`this action, this plaintiff is the earliest point
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`in time of any of the plaintiffs that brought
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`actions here. So as discussed in our papers, it
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`is important to put what occurred in context based
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`on what the District knew at the time this
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`individual was a student.
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`With that said, plaintiff brings five causes
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`of action: Negligence, negligent hiring,
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`negligent training and supervision, negligent
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`retention and breach of statutory duties to
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`report.
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`(Discussion off the record.)
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`MS. HILLIKER: Thank you, Your Honor. The
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`first four causes of action in plaintiff's
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`complaint all hinge on whether the District was on
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`notice of Koch's propensity to sexually abuse
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`students. The Fourth Department has been very
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`clear in its case law precedent that notice of
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`other types of misconduct is insufficient. It has
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`to specifically be, as the Court detailed in Lisa
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`P., evidence that the teacher in question or the
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`employee in question had a propensity to sexually
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`abuse students.
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`For example, in Lisa P., evidence of the
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`teacher sleeping in a room with students was
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`insufficient notice. The Court emphasized again
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`it has to specifically be notice of sexual
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`misconduct.
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`The record here establishes, without
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`question, that prior to the Spring of 1981, there
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`is no evidence of any kind that the District was
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`on notice of Koch's propensity to engage in sexual
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`misconduct. As this Court knows, plaintiff
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`herself alleges that she did engage in a
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`conversation with Cardina and Podgorski in the
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`Spring of 1981. But setting that aside for a
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`moment, admittedly, that's a credibility
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`determination at that point in time.
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`Prior to that, however, the record is
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`absolutely crystal clear that there's no notice of
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`any kind to the District of Mr. Koch's propensity
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`to engage in that behavior. Accordingly, the
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`District is entitled to summary judgment on
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`negligent hiring, as well as the other negligent
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`causes of action that relate to any conduct prior
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`to that date.
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`After the Spring of 1981 when plaintiff
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`allegedly engaged in the discussion with Cardina
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`and then, allegedly, Mr. Podgorski, plaintiff, by
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`her own testimony, admits that Mr. Koch cut off
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`all conduct at that point. Nothing further ever
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`happened at school. That is a hundred percent
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`supported by the record. There is nothing to the
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`contrary.
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`After that point in time, there are only two
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`instances of sexual interaction between Mr. Koch
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`and plaintiff. Both occurred substantially later
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`in time, both occurred off school property while
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`plaintiff is in the sole custody of her parents.
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`And that's important, Your Honor, because the case
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`law in this area, and particularly in regard to
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`schools, recognizes their duty ceases when they
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`turn the student back over to their parents' sole
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`custody.
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`In the Spring of '81, plaintiff testified --
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`late Spring of '81, months after Koch had
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`discontinued the relationship, plaintiff testified
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`that while she was at home one evening in the
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`custody of her parents, she snuck out and she went
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`to Mulligan's Brick Bar where Koch was employed as
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`a bartender. And she alleges that there, they
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`engaged in oral sex. But at that point in time,
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`Your Honor, the school had no duty to supervise
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`the plaintiff. The duty to supervise the
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`plaintiff hinges on the school being in the
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`custody and control of her.
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`Plaintiff cites to some other cases that
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`occur off school property. But in those
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`instances, the plaintiff was on a field trip and
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`still being supervised by teachers and by the
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
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`District at that time.
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`Here, plaintiff is in the sole custody and
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`control of her parents. The school owes no duty
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`of supervision in her evening hours. And even
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`further severing the nexus and sort of distance in
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`time is the fact that Koch is employed by a wholly
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`different employer in that timeframe. To the
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`extent that plaintiff wanted to recover for those
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`injuries, she should have sued Mulligan's Brick
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`Bar for failure to supervise, not the District.
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`In addition, while plaintiff may argue that
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`the District should have taken some action with
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`regard to Koch's employment once this allegation
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`was made in the Spring of '81, even if that were
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`the case, which I would dispute, but even if that
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`were the case, the causal nexus is still severed
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`because the instance that occurs at Mulligan's
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`Brick Bar has nothing to do with Koch's employment
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`with the District.
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`The second incident, that occurs after the
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`alleged notice occurs more than a year after the
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`Mulligan's Brick Bar incident. So, plaintiff
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`definitively testifies that between the incident
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`at Mulligan's Brick Bar in late Spring of 1981,
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`and fast forward all of the way to Summer of 1982,
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
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`so a full year and couple months later, nothing
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`transpires between her and Koch. She testifies to
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`that.
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`In the Summer of 1982, again, while she's in
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`had the sole custody and control of her parents,
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`she goes to a bar and she meets Koch again and
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`alleges they engage in sexual intercourse out in
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`the parking lot of the bar. Again, in that
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`instance, she is not in the custody and control of
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`the District, she's not being supervised by the
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`District, and the District owes her no duty at
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`that point in time. And Koch, again, is not
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`employed by the District, not acting in the course
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`of his employment at that point in time.
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`Lastly, and perhaps most importantly for that
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`second incident, plaintiff is over the age of 18.
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`And the CVA language is expressly clear it only
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`revives conduct that occurs before the plaintiff
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`turns 18. It has to be penal code conduct that
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`occurs before the plaintiff turns 18. Here, it is
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`also not a violation of the penal code. At that
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`point, she's 18, so it is not a criminal
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`violation. It doesn't trigger the CVA in that
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`way. But secondly, the CVA expressly says that it
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`only revives claims that occur before the
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
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`plaintiff is 18. And here, it is clear she was
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`over 18.
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`Plaintiff then tries to save her case by
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`alleging that the District violated a policy. And
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`plaintiff argues that that somehow abrogates her
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`burden to establish that the District was on
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`notice of Koch's propensity to engage in sexual
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`behavior in order to survive summary judgment.
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`But, Your Honor, that's not how the facts or the
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`law work in this case.
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`The facts establish that there was no written
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`policy in place, either with regards to doors
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`being open, or with regards to students riding in
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`vehicles. But even if that were the case, even if
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`there was a policy in place, the case law would
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`still dictate that on these set of facts, the
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`District is entitled to summary judgment.
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`In Doe versus New York City Department of
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`Education, which is 126 AD3d 612 discussed in our
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`reply papers. In that case, the teacher, who was
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`also a track coach, sexually abused a female high
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`school student. The record established that the
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`Department of Education had no notice of the
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`teacher's propensity to engage in sexual behavior,
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`just as is the case here.
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
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`In Doe versus New York City Department of
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`Education, there was evidence, however, that the
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`teacher, who is also the track coach, drove the
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`plaintiff in his car in violation of the
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`Department of Education's written rules forbidding
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`that.
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`Nonetheless, the First Department awarded
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`summary judgment to the District holding that the
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`evidence of plaintiff riding in a car in violation
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`of the rule was still insufficient to create a
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`question of fact because it was insufficient to
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`show that the District was on notice of the
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`teacher's propensity to engage in sexual
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`misconduct. The same is true here.
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`I would also direct the Court's attention to
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`Ghaffari versus North Rockland, 23 AD3d 342, a
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`Second Department case from 2005. In that case,
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`there was evidence of a teacher being behind a
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`closed door with a student, and the Court
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`expressly held that evidence of the teacher being
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`alone with a student does not raise a triable
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`issue of fact where the District shows no notice
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`of the teacher's propensity to engage in sexual
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`misconduct. Again, I would submit the same is
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`true here.
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
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`In the Doe verse Department of Education
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`case, while the First Department decision is
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`slightly shorter, the underlying decision is
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`longer. And in it, the trial court expressly held
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`that to conclude a violation of the policy about
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`riding in a teacher's car was somehow sufficient
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`to show notice of a propensity to engage in sexual
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`misconduct would be, and I quote: A quantum leap
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`that the Court is unwilling to make.
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`I would submit here that the Court should be
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`unwilling to make that leap as well. Doing so
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`would be a complete departure from the case law
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`precedent in the claims of sexual abuse by a
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`District employee.
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`In fact, even the basic slip-and-fall cases,
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`snow cases, require more notice. The specificity
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`of the notice is the sine qua non to liability and
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`it is especially true in cases of sexual abuse.
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`The notice, the specificity, it simply
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`doesn't exist on this record, Your Honor. And
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`once there's an allegation that it may exist,
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`anything that occurs thereafter is off school
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`property, off school time, completely severed in
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`terms of a causal nexus.
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`Briefly, Your Honor, the plaintiff cites
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
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`Murray, which I believe we briefed extensively,
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`but that case is in a posit to the facts here. It
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`involved a much younger student, elementary
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`student, who was meeting behind closed doors with
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`an adult for a program he wasn't even enrolled in.
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`That -- it was a violation of a written
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`promulgated policy designed to prevent abuse.
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`That is not the case here. No such written policy
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`exists. In fact, the various District
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`representatives testified that there were reasons
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`for which Koch was allowed to meet alone with
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`students.
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`Lastly, Your Honor, I'll cover the Social
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`Services law briefly. Plaintiff has alleged a
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`breach of statutory duty to report. For three
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`separate reasons the District is entitled to
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`summary judgment on that.
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`First, Cardina was not a mandated reporter.
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`That was very clear under the clear language of
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`the statute. We have talked about the other cases
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`we have had so I won't go into that extensively.
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`Mr. Podgorski, while he was a mandated reporter at
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`the time, he spoke with plaintiff, and she told
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`him she was out on Koch's boat, but that nothing
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`else happened. And therefore, Koch, as a matter
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
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`of law, did not have reasonable cause to suspect.
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`And I would cite Your Honor, to Diana G-D. versus
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`Bedford Central School District, 932 NYS 2d 316.
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`That case has very similar facts where an
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`allegation was made, the student denied it, and
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`the Court found as a matter of law that the school
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`did not have reasonable cause to suspect.
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`The second reason that the breach of
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`statutory duties should be -- that the District is
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`entitled to summary judgment is that in order to
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`impose civil liability for a violation of Social
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`Services Law 413 and 420, the violation needs to
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`be willful. There is simply no evidence on this
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`record that the violation was willful. Even if
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`one could call into question Mr. Podgorski's
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`judgment in that moment, there was no evidence it
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`was willful. And again, the Diane G. case versus
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`Bedford Central School District expressly deals
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`with that, and finds on summary judgment for the
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`District noting there's no evidence of
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`willfulness.
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`Third, and lastly, on the Social Services
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`Law, Your Honor, I would argue even if there was a
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`violation, which there wasn't, there's no argument
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`of any type of causation. And so, here, for the
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`same reason that the other two instances are cut
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`off in time and distance from the school
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`district's duty, so too is the causal connection
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`severed between any reporting that might have
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`occurred under the Social Services Law and the two
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`instances that happened later because it is the
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`same point in time, Your Honor. It is a question
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`of the conversation that maybe occurred in the
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`Spring of 1981, but for purposes of this motion,
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`if you assume it occurred, nothing occurred
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`thereafter at school.
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`So, even if some action had been taken with
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`regard to Mr. Koch's retention, or even if
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`Mr. Podgorski had reported out, it wouldn't have
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`made a difference in what happened later in the
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`sense that plaintiff snuck out of her home while
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`she is in the control of her parents, and goes to
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`visit Mr. Koch at an entirely different job, Your
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`Honor. To deny the District summary judgment on
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`this motion would be a departure from the case law
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`precedent, and would frankly open up Pandora's box
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`on school districts being responsible for whatever
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`students do on the summer breaks, their off-times,
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`evening, while their employees are employed at
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`other jobs. It is simply beyond the pale of what
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`14
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`the case law precedent dictates, Your Honor. So,
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`with that, I will conclude my argument for now
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`unless the Court has other questions.
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`THE COURT: I have no questions. Thank you.
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`Ms. Costanzo?
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`MS. COSTANZO: Thank you, Your Honor. I
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`think it is important to note just at the outset
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`that the plaintiff's damages cannot be viewed in a
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`vacuum. So while plaintiff's damages may have
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`been damaged from the sexual abuse itself, the
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`damage continues on for years and years after. It
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`is not simply the one instance of abuse and the
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`damages that she sustained stop. She's continuing
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`to experience damages throughout her life to the
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`present day which has been acknowledged by
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`defendant's doctor. So, I think to argue that
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`somehow certain instances of abuse cut off the
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`plaintiff's damages is an inaccurate description
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`of the claims that we are making.
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`With respect to the initial arguments about
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`notice, I think there's obviously a dispute with
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`respect to the facts of the case and the notice.
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`Ms. Cardina testified and gave a statement about
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`the fact that it was common knowledge that Koch
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`was abusing or having inappropriate relationships
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`15
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`or sexual relationships with students when she was
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`a student there in the '70s.
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`And then Francis, another student and brother
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`of one of the companion plaintiffs, also testified
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`that when he was a student at the school and
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`starting in '78, that it was general knowledge
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`that Mr. Koch was having inappropriate
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`relationships with female students. This is
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`something that Ms. Cardina carried with her when
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`she became an employee of the District. And when
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`she became an employee of the District, she
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`testified that it was in the forefront, or in her
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`mind at some point that he was continuing to do
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`that while she worked there with students.
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`So -- you know, and then with respect to our
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`client, there was testimony, or at least the
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`statement of Ms. Cardina, indicated that she knew
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`or had reason to know that our client was, quote,
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`dating Koch; that she thought it was her job to
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`allow the students then make their choices
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`themselves because of her inappropriate training
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`or lack thereof.
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`There's also -- you know, there was an
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`affidavit of Renee Afflixio about that timeframe
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`how she knew he was having inappropriate
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`16
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`relationships with students.
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`There's, you know, the conduct that our
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`client testifies to that Koch had his arm around
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`her in the hallways during class times when
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`teachers and students would be walking the
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`hallway; that Koch was picking her up and taking
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`her home every day, or on a regular occurrence,
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`from the teacher parking lot. I think, Your
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`Honor, there was testimony about Mr. Koch
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`receiving the Cradle Robber Award at a senior
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`night where, when he was asked -- when Mr.
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`Podgorski was asked about it, he said: Could be
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`that he received the Cradle Robber award. He
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`somehow thought that was funny, or he necessarily
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`didn't mean what a normal person would expect that
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`term to mean, which then goes into Principal
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`Podgorski's comments about in the '80s, that
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`teachers -- multiple teachers reported to him that
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`Koch was being too friendly with these students.
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`And he just wrote it off as something that he
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`didn't believe to be important. He thought the
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`teachers were jealous. And I think, you know --
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`which is another thing about Principal Podgorski's
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`credibility issues. He claims that the comment
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`that he received or the phone call that he
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`17
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`received from Francis about keeping his sister, a
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`companion plaintiff, away from Koch, that he
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`testified he didn't believe that to be of a sexual
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`nature. Yet, when there was a subsequent sexual
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`complaint by another teacher, on another teacher,
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`Tony Williams, where Podgorski was responding to
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`that complaint, he brings up the phone call. And
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`that phone call overlapped -- that plaintiff
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`overlapped with the period of abuse of our client,
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`1981.
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`So, I think there was also testimony about
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`Margaret Cardina knowing that another -- Koch was
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`delivering roses to another student while she was
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`in the office, and we know that she was in the
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`office up to '82, which is during the timeframe of
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`our client's abuse.
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`So, I think all of these instances of notice
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`at least go to the should have known. Because if
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`everybody knew, why didn't they know? And I
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`believe, and I suspect, that they did know or that
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`they should have known this was going on and just
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`failed to do anything about it. There's no
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`testimony that Principal Podgorski did any
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`investigation. In fact, I think the testimony he
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`gave with respect to the report that Francis made
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`18
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`was that he talked to Koch himself.
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`Well, I fear that, you know, if he considers
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`an investigation into sexual abuse, talking to the
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`sexual predator, I'm not exactly sure how far we
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`get, because, of course, that's going to be
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`denied. I don't think that is an appropriate
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`investigation, even if you could consider it an
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`investigation.
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`But, I think aside from that, I think it is
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`clear Principal Podgorski took no action
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`whatsoever on anything. And, you know, at a
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`minimum, Margaret Cardina, who is -- you know, had
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`control over students and was working in that
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`office and knew about these things going on, both
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`before, and then when she joined as an employee
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`and knew this stuff could possibly be still going
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`on, I think raises a question of fact on those
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`issues.
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`And then there's the direct report that our
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`client made. And while, while our client denied
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`it to Principal Podgorski when she was questioned
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`about it, the fact that another person, like
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`Margaret Cardina, reported it to Principal
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`Podgorski, and even if it was denied, there should
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`have been an investigation. It should have
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`19
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`spurred some sort of investigation, because that's
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`what a reasonably prudent parent would have done
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`under those circumstances, which is really the
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`standard here. If a reasonably prudent parent
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`heard or knew, or it was general knowledge that a
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`teacher was, quote, unquote, dating or having
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`inappropriate sexual relationships with students,
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`what would they have done?
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`And I think in this instance, they would have
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`launched an investigation. Maybe it wasn't enough
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`to fire Koch, but it was certainly enough to
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`launch an investigation to notify the parents and
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`to determine whether further action needed to be
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`taken. And if it was taken, plaintiff may have
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`gotten help if they found out that she was being
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`abused, and she didn't. She suffered for years as
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`an alcoholic and with other aspects of her mental
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`health.
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`So I think with respect to the notice issues,
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`there's more than sufficient evidence to establish
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`that the school district knew or had a reason to
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`know that Koch should not have been having
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`interactions with female students, or that his
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`interactions were not a teacher-student
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`relationship, particularly where -- and this kind
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
`
`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`20
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`of stems or flows into the policy issue.
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`We argue that the District violated its own
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`policies by allowing students like our client to
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`go behind closed doors with Koch, particularly
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`where Margaret Cardina, at the time our client was
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`going behind closed doors, knew about this --
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`Koch's propensities with minor students and with
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`our client. And she went behind closed doors and,
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`of course, you know, the District can't claim:
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`Well, we didn't investigate, we didn't look into
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`it, so therefore, there's no notice. Well, you
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`should have investigated it, particularly with the
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`knowledge that you had, or that you ignored.
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`And I think it is important to note that in
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`the Murray case, and we did cite it extensively in
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`our papers, where that particular student was
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`behind closed doors in contravention of the
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`District rule prohibiting an adult from meeting
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`alone with a student in a room with a closed door.
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`Podgorski testified that was the policy. And
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`regardless of the fact that the District had not
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`turned over any written policies, while I don't
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`think the case law limits it to just a written
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`policy, I will say that Burgholzer, Mr.
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`Burgholzer did testify that the school did have
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
`
`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`21
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`written policies before 1982 in a binder. And
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`since he's been working at the District, those
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`policies were in the binder. They were regularly
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`handed out to the administrators and to the school
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`districts as long as he has been there. Just
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`because they didn't turn over those documents, I
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`don't think it rises to the level of an adverse
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`inference because of how long the passage of time
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`has been, but it certainly shouldn't be
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`dispositive of the fact that we don't have a
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`written policy to look at, doesn't mean there
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`wasn't one. Mr. Burgholzer acknowledges that
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`there may have been one, and that there was one at
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`the time he was there.
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`THE COURT: I have a question before you,
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`counsel. You cite to Murray. When I looked at
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`the case, it wasn't just merely that they had a
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`policy that was violated, that they violated their
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`own policy, but I thought a significant fact was
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`that the student wasn't even enrolled in the
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`program that the teacher was bringing him into
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`class -- or in the room for. So what more do you
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`have here than closed door policy?
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`MS. COSTANZO: Well, there's no indication,
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`at least in the record -- I mean, our client
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
`
`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
`
`22
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`testified extensively that she was meeting with
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`him, including in closed campus and behind closed
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`doors when she had no need to. There was no need
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`for her to be in the attendance office at all.
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`The only reason for them to be in the attendance
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`office is specifically if they are, you know, late
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`from school. I think the testimony they are late
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`from school, or there's some sort of other issue.
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`He wasn't her counselor. He isn't certified as a
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`counselor. There was no reason for him to be
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`meeting with her behind closed doors. There's no
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`facts in the record to suggest there was anything
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`specific she was doing behind closed doors. And I
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`think our client's testimony was that she was --
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`she was skipping out on other things just to spend
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`time with him, which is not sufficient to say that
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`she wasn't with him for other reasons. There was
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`no -- there's no testimony that she's with him
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`because she had an attendance issue. There's no
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`testimony to that respect at all.
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`You know, so she's behind closed doors with
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`him for what reason other than to be spending time
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`with him? And a lot of the -- you know, we talk a
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`lot about the, you know, the rape or the sexual
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`abuse that happened, but there are other instances
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
`
`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`23
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`of inappropriate conduct. There's the
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`inappropriate touching. There's the putting his
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`hand on her leg while she's behind closed doors.
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`There's his putting his arm around her, you know,
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`as if he's grabbing a girlfriend walking down a
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`hallway.
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`So, I think, you know, I think at least for
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`the Murray case, I think this lends itself to
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`that, you know, exact example that, you know,
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`she's spending a lot of time with him in certain
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`instances where she has no reason to be there.
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`She's actually, I think, skipping classes and
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`skipping other things to do that.
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`So -- and everybody testified, at least from
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`the District, that that was the policy. They
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`weren't supposed to be behind closed doors. There
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`was no reason to close the door. And Margaret
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`Cardina testifies he was closing doors, and not
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`just with our client, but with other female
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`individuals, some of which were plaintiffs.
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`THE COURT: Anything further in support of
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`your argument?
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`MS. COSTANZO: Just with respect to -- I
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`don't think I addressed the breach of statutory
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`duty to report, so I'll just briefly reference
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 132
`
`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`24
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`that to the Court.
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`So the standard for a breach of statutory
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`duty to report is that they must report where
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`there's a reasonable cause to suspect abuse. I
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`think in these cases, obviously, we have already
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`addressed the reasonable cause that we believe
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`they would have to report the abuse, and it must
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`be reported immediately.
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`So, even if Podgorski, even if we are talking
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`about the specific instance of Podgorski receiving
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`the report from our client and from Margaret
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`Cardina, which I will reference PB-18 separately,
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`testified -- I believe it was PB-18 separately
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`testified that she remembers Margaret Cardina
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`telling her that that happened, not our client.
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`Margaret Cardina referenced that to her.
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`So, let's just assume for a second that that
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`actually happened, which we believe it did, the --
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`Podgorski is a mandatory reporter. He had an
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`obligation to immediately lanch an investigation
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`and report it. I think the cases that we have
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`extensively referenced, including in the Reno case
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`and in the Kimberly S.M. case lend itself to the
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`fact that it is not for
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