FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 136
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
`_________________________________________
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`AB 511 DOE
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` Plaintiff,
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`Index No.: 20-46602
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`vs.
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`LYNDONVILLE CENTRAL SCHOOL
`DISTRICT; LYNDONVILLE ELEMENTARY
`SCHOOL
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` Defendants.
`________________________________________
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`MEMORANDUM OF LAW
`IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND
`IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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`Leah Costanzo, Esq.
`Steve Boyd, P.C.
`Attorneys for Plaintiff
`2969 Main Street, Suite 100
`Buffalo, New York 14214
`(716) 400-0000
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`PRELIMINARY STATEMENT
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`Plaintiff has brought a claim under the Child Victims Act for injuries he suffered as a
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`result of being sexually abused by Terry Houseman, an employee of defendants Lyndonville
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`Central School District and Lyndonville Elementary School, while a minor student.
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`Defendants have moved for summary judgment seeking dismissal of all claims against
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`them based on arguments that they lacked notice of Houseman’s dangerous propensities, along
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`with other arguments raised only in their Memorandum of Law. Plaintiff has cross-moved for
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`summary judgment on the issue of defendants’ liability arising from their negligence, negligent
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`training and supervision, and negligent retention.
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`Plaintiff submits the following in opposition to defendants’ motion and in support of
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`plaintiff’s cross-motion.
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`Throughout their Memorandum of Law, defendants’ reference various paragraphs in their
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`Statement of Facts when summarizing the purported factual basis for their motion. In an effort
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`to maintain at least some brevity, plaintiff refers the Court to plaintiff’s response to defendants’
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`Statement of Facts for information regarding these factual claims instead of repeating facts and
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`arguments already set forth in that document. Plaintiff will primarily address the legal basis for
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`defendants’ arguments here.
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`ARGUMENT
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`SUMMARY JUDGMENT STANDARD
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`The moving party on a motion for summary judgment bears the “initial burden of
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`tendering evidentiary proof in admissible form sufficient to demonstrate that judgment should be
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`granted to him as a matter of law” Brust v. Town Of Caroga, 287 A.D.2d 923 (3rd Dept. 2001);
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`see Zuckerman v. City of New York, 49 N.Y.2d. 557, 562 (1980). This initial burden must be
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`met before it shifts to the non-moving party to “produce evidentiary proof in admissible form
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`sufficient to require a trial of material questions of fact.” Zuckerman v. City of New York, 49
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`N.Y.2d at 562.
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`PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT
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`A party is liable for negligence when that party owes a duty to another, breaches that
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`duty, and said breach results in an injury. See Evarts v. Pyro Eng’g, Inc., 117 A.D.3d 1148, 1150
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`(3d Dept. 2014). If only one conclusion may be drawn from the established facts, then the
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`question of legal cause may be decided as a matter of law. See Grant v. Nembhard, 94 A.D.3d
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`1397, 1398 (3d Dept. 2012) (internal citations omitted).
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`“It has long been recognized that a Board of Education has a duty, arising from the fact of
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`its physical custody over students, to exercise the same degree of care and supervision which a
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`reasonably prudent parent would employ in the given circumstances.” Logan v. City of New
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`York, 148 A.D.2d 167, 168 (1st Dept. 1989) (citing to Ohman v. Board of Educ., 300 N.Y. 306
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`(1949)).
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`An employer may be held liable for the torts committed by an employee under theories of
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`negligence, negligent training and supervision, and negligent retention, even when said acts
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`occur outside the scope of employment. See Chichester v. Wallace, 150 A.D.3d 1073 (2d Dept.
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`2017). "The negligence of the employer in such a case is direct, not vicarious, and arises from its
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`having placed the employee in a position to cause foreseeable harm, harm which the injured
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`party most probably would have been spared had the employer taken reasonable care in making
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`its decision concerning the hiring and retention of the employee." Med. Care of W.N.Y. v.
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`Allstate Ins. Co., 175 A.D.3d 878 (4th Dept. 2019); White v Hampton Management Co. L.L.C.,
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`35 A.D.3d 243 (1st Dept. 2006), citing Gomez v City of New York, 304 A.D.2d 374 (1st Dept
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`2003); Johnasmeyer v. New York City Dep’t of Educ., 165 A.D.3d 634, 635–36 (2d Dept. 2018)
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`(citations omitted).
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`To demonstrate that an employer, such as a school district, bears liability under a theory
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`of negligent supervision, “‘the plaintiff generally must demonstrate the [school district’s] prior
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`knowledge or notice of the individual’s propensity or likelihood to engage in such conduct, so
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`that the individual’s acts could be anticipated or were foreseeable.’” Lisa P. v. Attica Cent.
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`School Dist., 27 A.D.3d 1080 (4th Dept. 2006) (quoting Dia CC. v. Ithaca City School Dist., 304
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`A.D.2d 955, 956 (3d Dept. 2003)); see also Doe v. Chenango Valley Cent. School Dist., 92
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`A.D.3d 1016, 1016 (3d Dept. 2012).
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`In this matter, there is no factual dispute that plaintiff was a student at the school at all
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`relevant times. Defendants therefore had a duty to him and were required to exercise the same
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`degree of care and supervision as a reasonably prudent parent under the same circumstances.
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`The admissible evidence further established that defendant placed its employee, Terry
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`Houseman, in a position to cause foreseeable harm to plaintiff, harm which plaintiff most
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`probably would have avoided had defendant used reasonable care in its training and supervision
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`of Houseman and other employees and was negligent in its retention of Houseman.
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`Defendant had actual notice of Terry Houseman’s propensity to cause harm to
`minor students and specifically, to plaintiff.
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`I.
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`The evidence establishes that defendants received actual notice of Houseman’s dangerous
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`propensities during the 1986-1987 school year while the abuse of plaintiff was ongoing, yet no
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`action was taken and the abuse continued until the end of the school year.
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`As more fully set forth in plaintiff’s attorney affirmation, a teacher, Ruth Bane, walked
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`into Houseman’s classroom while Houseman was abusing plaintiff. This incident occurred at the
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`beginning of the fifth-grade school year shortly after the Houseman’s abuse of plaintiff began,
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`was never reported by Ms. Bane, and Houseman continued to abuse plaintiff thereafter.
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`While defendants attempt to argue in their Memorandum of Law in support of their own
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`motion that Ms. Bane must not have seen anything to cause her to suspect sexual abuse of
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`plaintiff when she entered the room (Hayes MOL, pp. 14-16), defendants’ argument is ultimately
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`unsupported by the testimony.
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`Initially, while Ms. Bane denied ever having observed any inappropriate conduct by
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`Houseman, despite teaching in the same building as Houseman since the early 1970s (Ex. D, p.
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`10) and getting their classes together to show movies (Ex. D, p. 33), she also denied any recall at
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`all of any of Houseman’s interactions with students (Ex. D, p. 34), claimed to have no recall of
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`ever seeing Houseman interacting with any student (Ex. D, p. 62), and claimed she could not
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`remember going to Houseman’s room ever for any reason at all (Ex. D, p. 32). This lack of
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`recall is not a denial and is insufficient to overcome plaintiff’s prima facie showing regarding her
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`having observed the abuse.
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`While defendants argue that she must not have seen anything based on defense counsel’s
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`interpretation of plaintiff’s testimony, defendants omit that Ms. Bane entered the room while
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`plaintiff’s hand was actually inside Houseman’s unzipped pants and she was clearly startled.
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`(Ex. A, pp. 68-71). To clarify Ms. Bane’s reaction, the positioning of Houseman and plaintiff in
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`the room, and what she was able to see, plaintiff has submitted an affidavit providing additional
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`details. This affidavit confirms that plaintiff was standing near Houseman with Houseman’s
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`body perpendicular to his. His entire body was not blocking Houseman’s body and was visible
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`from the doorway Ms. Bane entered that day. Plaintiff’s pants were unzipped and Houseman had
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`placed plaintiff’s hands in his pants. At the time Ms. Bane walked in, she looked at them, let out
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`a loud gasp. Plaintiff heard her gasp, then turned around and stepped back from Houseman, with
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`his hand coming off of Houseman’s lap. Houseman’s pants were still unzipped and visible from
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`where Ms. Bane was standing. There was then an uncomfortable pause before Houseman rotated
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`his chair to zip up his pants and Ms. Bane started to stumble over her words as if she didn’t know
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`what to say. After a very short conversation, Ms. Bane left the room in a hurry. (Ex. M, p. 2)
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`Ms. Bane’s observations should have been reported. Following such a report, a
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`reasonably prudent parent would not have allowed Houseman to interact with students and
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`would have investigated the report. See Logan v. City of New York, 148 A.D.2d 167, 168 (1st
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`Dept. 1989); see also Murray v. Research Foundation of State University of New York, 283
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`A.D.2d 995, 996 (4th Dept. 2001).
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`Finally, defendants’ argument that Ms. Bane’s failure to report her observation of
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`plaintiff being abused would be a “willful” act that is akin to committing abuse herself and
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`therefore outside the scope of her employment and for which defendants cannot be held liable,
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`this argument is unsupported by any legal authority. The case cited, Joshua S. by Paula S. v.
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`Casey, 206 A.D.2d 839 (4th Dept. 1994), merely states that an employer cannot be liable for
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`abuse by an employee under the doctrine of respondeat superior and has nothing to do with the
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`issue. As an employee of defendants, Ms. Bane’s knowledge and observations regarding
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`Houseman’s propensities are imputed to defendants, and defendants are bound by that
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`knowledge even if such information is never communicated to them. Farr v. Newman, 14
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`N.Y.2d 183 (1964), see also, Center v. Hampton Affiliates, 66 N.Y.2d 782 (1984). “ This rule of
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`imputed knowledge is based upon a presumption that an agent had discharged the duty to
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`disclose to the principal all material facts coming to his or her knowledge with respect to the
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`subject of the agency,” Smalls v. Reliable Auto Serv.¸205 A.D.2d 523 (2d Dept. 1994). There is
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`no meaningful dispute that Ms. Bane had a duty to report. This was the understanding of all
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`former employees deposed and clearly would fall within her in loco parentis duties as
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`defendants’ employee.
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`II.
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`Plaintiff’s injury was a reasonably foreseeable consequence of defendants’ own
`inaction
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`Defendants have moved for summary judgment solely on the basis that they purport to
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`have had no notice of Houseman’s propensities. Even in the absence of actual or constructive
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`notice, “the District may, however, be held liable for an injury that is the reasonably foreseeable
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`consequence of circumstances it created by its inaction (see Bell v Board of Educ. of City of
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`N.Y., 90 N.Y.2d 944, 946-947, 687 N.E.2d 1325, 665 N.Y.S.2d 42 [1997]; Murray v Research
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`Found. of State Univ. of N.Y., 283 A.D.2d 995, 997, 723 N.Y.S.2d 805 [[4th Dept.] 2001], lv
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`denied 96 N.Y.2d 719, 759 N.E.2d 370, 733 N.Y.S.2d 371 [2001]),” Doe v. Fulton Sch. Dist., 35
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`A.D.3d 1194, 1195 (4th Dept. 2006).
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`As set forth in plaintiff’s attorney affirmation, Dr. Kraizer, an expert in the field of
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`prevention, recognition, and reporting of child abuse and in the standard of care for educational
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`organizations, found that defendants failed to have in place policies, procedures and training
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`consistent with the standard of care which allowed Houseman to favor some students, meet alone
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`with them, meet with them behind closed doors, and sexually abuse them.
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`The undisputed evidence establishes that plaintiff was routinely admitted to the locked
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`school by other staff in the morning for the purpose of meeting alone with Houseman multiple
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`times per week where he was abused. According to testimony provided in this case by staff,
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`defendants either had no closed-door policy or teachers were actually directed to keep doors
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`closed. Plaintiff was routinely removed from other classes so that he could be abused by
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`Houseman with the consent of other classroom teachers, a fact which by itself is sufficient to
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`establish a breach of the duty of a parent of ordinary prudence. Doe v. Whitney¸8 A.D.3d 610,
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`611-612 (2d Dept. 2004).
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`The evidence also establishes that prior to plaintiff’s abuse, defendants had a
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`lackadaisical approach to their responsibilities with respect to possible child sexual abuse, with at
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`least one incident of inappropriate conduct of a staff member toward a student being handled by
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`allowing the alleged perpetrator to move on to a position at another location without any
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`investigation or record of the incident generated. (Ex. C, p. 30)
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`This lack of proper policies and procedures, and failure to act to ensure students and staff
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`were properly monitored, created the circumstances resulting in plaintiff being sexually abused
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`by Houseman, and plaintiff should be granted summary judgment on this issue.
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`III.
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`Plaintiff should prevail on summary judgment for defendants’ negligence, their
`negligent training and supervision of employees, and their negligent retention of
`Houseman.
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`As previously stated, there is no dispute that defendants owed a duty to plaintiff, in loco
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`parentis. Plaintiff was a minor student attending defendants’ school during the time frame of
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`Houseman’s abuse, and all but one incident occurred on school property.
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`Defendants also clearly breached its duty of care owed to plaintiff by placing him in a
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`position for Houseman to cause foreseeable harm after receiving notice of a propensity for sexual
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`misconduct. Doe v. Chenango Valley Cent. School Dist., 92 A.D.3d 1016, 1016 (3d Dept.
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`2012). Plaintiff’s abuse was observed in the classroom by Ms. Bane. Despite having such notice
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`of Houseman’s dangerous propensities, defendants took no action.
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`Despite this knowledge, no investigation was conducted, no additional supervision of
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`Houseman’s activities took place, and Houseman was retained in his employment. This inaction
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`of defendants placed plaintiff in a position of foreseeable harm.
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`With respect to plaintiff’s claims of negligent training and supervision and negligent
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`retention, as set forth in plaintiff’s attorney affirmation, there is no scenario under which
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`defendant cannot be found to have negligently trained and supervised its employees. Either Ms.
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`Bane, while acting in loco parentis, failed to report her observations, or she reported them and no
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`action was taken. A proper investigation would have uncovered Houseman’s abuse of children
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`and specifically of plaintiff. Instead, no investigation was conducted, he was retained, and the
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`abuse continued.
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`IV. Defendants’ breach of their duty caused injury to plaintiff.
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`The evidence also establishes that defendants’ negligence caused injury to plaintiff and
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`therefore establishes its liability. Evarts v. Pyro Eng’g, Inc., 117 A.D.3d 1148, 1150 (3d Dept.
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`2014).
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`Additionally, with respect to child molestation, harm is inherent in the nature of the act.
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`Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 161 (1992).
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`Plaintiff has experienced panic attacks throughout his life. He has issues with trusting
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`people, worries that people are trying to take advantage of him, and tries to catch people in lies,
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`especially authority figures. He has difficulty forgiving people. He overanalyzes his intimate
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`relationships and has trust issues which contributed to his separation from his wife and to
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`difficulties in his friendships. As a child, he would never again spend the night at a friend’s
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`house and became sexually active at a young age. He was not focused in school or in college,
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`and was always scared in elementary school that Houseman may be around.
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`As a result, plaintiff is entitled to summary judgment on the issues of defendants’
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`negligence, negligent training and supervision, and negligent retention of Houseman.
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`RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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`I.
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` Negligent Hiring
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`Initially, defendants’ argument that they are entitled to summary judgment on the issue of
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`negligent hiring (Hayes MOL, pp. 16-17) is an effort to impermissibly shift the burden to
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`plaintiff. To support its motion, defendants were required to tender “evidence affirmatively
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`demonstrating the merit of its claim or defense, rather than by pointing to gaps in the plaintiff’s
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`proof,” Mondello v. DiStefano, 16 A.D.3d 637, 638 (2d Dept. 2005).
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`Here, defendants have produced no evidence regarding its hiring policies and practices at
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`the time of Houseman’s hire. Indeed, while they have attached Houseman’s file as an exhibit,
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`they point to nothing in their attorney affirmation, statement of facts or memorandum of law
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`from that file or in any of the deposition testimony regarding the hiring practices or the process
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`followed in hiring Houseman.
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`Houseman was hired in 1970 (Marek Aff., Ex. A, p. 157). The only evidence regarding
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`their hiring practices comes from the depositions of two teachers regarding the process: Ms.
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`Hurtgam and Ms. Townsend. Ms. Hurtgam, hired in 1979, testified that she provided references,
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`was interviewed by the principal, and he made a recommendation to the board which they would
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`essentially rubber stamp without any additional interview (Ex. F, pp. 9, 23-24). Ms. Townsend,
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`hired in 1967, testified that she was interviewed by the superintendent, had to provide her
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`teaching certificate, and may have had to provide her diploma (Ex. G, p. 8, 23).
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`These differing accounts of the hiring practices for other teachers is clearly inadequate to
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`meet defendants’ burden on this issue. Specifically, within the context of a teacher sexually
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`abusing a student, it has been found that a defendant failed to establish prima facie entitlement to
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`summary judgment on a negligent hiring claim where it “submitted no evidence as to the specific
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`circumstances of his hiring,” S.C.. v. New York City Dept. of Educ., 97 A.D.3d 518, 520 (2d
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`Dept. 2012).
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`As a result, for purposes of summary judgment, defendants have failed to make a prima
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`facie showing on this issue as the Court does not even know what standard to apply.
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`II. Negligence, Negligent Training and Supervision, and Negligent Retention
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`As set forth in plaintiff’s cross-motion, the evidence establishes that Ruth Bane directly
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`observed inappropriate contact between plaintiff and Houseman but no action was taken, and
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`defendants’ efforts to argue otherwise fail to refute the prima facie evidence on this issue.
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`Should the Court determine otherwise, there is nonetheless a clear question-of-fact regarding this
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`testimony that precludes a finding of summary judgment.
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`With respect to defendants’ argument that it cannot be held liable for negligence because
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`they had no notice and therefore did not breach their in loco parentis duty (Hayes MOL, pp. 4-
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`13), the factual portion of this argument is addressed in plaintiff’s response to defendants’
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`Statement of Facts and plaintiff’s attorney affirmation. Moreover, as discussed above in support
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`of plaintiff’s cross-motion, defendants may be found to have breached their in loco parentis duty
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`regardless of the evidence of actual or constructive notice where its own inaction contributed to
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`plaintiff’s injury. Again, while plaintiff believes the evidence regarding defendants’ failure in
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`their in loco parentis duty establishes plaintiff’s entitlement to summary judgment, defendants’
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`failure to have policies in place meeting the standard of care for the time period and allowing
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`Houseman to repeatedly remove plaintiff from classes, gain early admittance to the school, and
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`otherwise routinely be left alone with Houseman, clearly creates a question-of-fact on this issue
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`should the Court determine that plaintiff is not entitled to summary judgment.
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`Moreover, in addition to Ms. Bane’s direct observations, there is ample evidence of
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`constructive notice warranting denial of defendants’ motion. This includes plaintiff’s testimony
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`that Houseman would routinely inappropriately touch plaintiff and other male students on their
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`abdomen, chests and genitals in the school hallway and entrance to his classroom while acting in
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`a joking manner and making comments such as “don’t act like you don’t like it.” It also includes
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`an Affidavit and deposition testimony of Patrick Whipple who established that he was a fifth
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`grade student in Houseman’s class with plaintiff during the time of plaintiff’s abuse. Mr.
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`Whipple observed interactions between Houseman and plaintiff that appeared “questionable and
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`inappropriate”, including plaintiff being let into school early by the custodian to be alone in the
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`classroom with Houseman, finding plaintiff alone with Houseman in his classroom before school
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`started, recognizing Houseman’s exclusive attention to plaintiff which he did not exhibit toward
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`other students to the point he would now describe Houseman as “fixated” on plaintiff, and
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`plaintiff always standing adjacent to Houseman during the school day and when lining up in the
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`hallway. Mr. Whipple described Houseman’s interactions with plaintiff during the school day as
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`“noticeable, odd, and inappropriate.” (Ex. L, p. 4) Notably, Mr. Whipple served as the
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`Lyndonville Elementary School Principal from approximately 2006 through 2013 and indicated
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`that based upon his experiences at Lyndonville during the time of plaintiff’s abuse, “that the
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`administration and faculty should have noticed the inappropriate and questionable nature of these
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`interactions and investigated the situation.” (Ex. L, p.4) This type of contact with students in
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`public areas when other staff would be present constitutes sufficient constructive notice to defeat
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`defendants’ motion. See decision in AB 514 Doe v. Amherst Central School District, Erie
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`County Supreme Court., Hon. Deborah A. Chimes, J.S.C., Index #805688/2020 (Ex. N, p. 7).
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`With respect to defendants’ argument that they cannot be held responsible for
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`Houseman’s conduct off of school property (which consisted of a single incident at Houseman’s
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`house) (Hayes MOL, pp. 13-14), that is not the case where, as here, there is evidence that the
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`school knew or should have known of the abuser’s propensities. In Johansmeyer v. New York
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`City Dept. of Educ., 165 A.D.3d 634, 636 (2d Dept. 2018), the Appellate Court specifically
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`found that although the sexual abuse had ultimately occurred in the child’s home, the fact that
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`the abuser was allowed to be alone with the child during school hours during which he engaged
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`in “inappropriate behavior” created a triable issue of fact regarding whether the school knew or
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`should have known of the abuser’s propensities. Johansmeyer v. New York City Dept. of Educ.,
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`165 A.D.3d 634, 636 (2d Dept. 2018). See also, PB-65 Doe v. Niagara Falls City Sch.
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`Dist.¸2021 N.Y.Misc. LEXIS 6097 (Niag. Co. Sup. Ct., Hon. Deborah A. Chimes, J.S.C. 2021)
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`[CVA complaint stated a cause of action despite abuse by music teacher happening off of school
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`grounds]; R.M. v. Rockefeller Univ., 2023 N.Y.Misc. LEXIS 268 (N.Y. Co. Sup. Ct., Hon.
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`Alexander M. Tisch, J.S.C., 2023) and M.H. v. Rockefeller Univ., 2023 N.Y.Misc. LEXIS 288
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`(N.Y. Co. Sup. Ct., Hon. Alexander M. Tisch, J.S.C., 2023) [both stating in the context of CVA
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`claims that New York law does not require the abuse be conducted on the employer’s premises];
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`Bell v. Board of Educ., 90 N.Y.2d 944, 947 (1997); Peter T. v. Children’s Vil., Inc.¸30 A.D.3d
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`582, 586 (2nd Dept. 2006). See also, T.Y. v. Holland Central School District, Erie County
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`Supreme Court, Hon. Deborah A. Chimes, J.S.C., Index No. 806201/2020 and decision in AB
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`514 Doe v. Amherst Central School District, Erie County Supreme Court, Hon. Deborah A.
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`Chimes, J.S.C., Index No. 805688/2020 (Ex. L).
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`Additionally, a school’s duty of care “…continues when the student is released into a
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 136
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`potentially hazardous situation, particularly when the hazard is partly of the school district's own
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`making." Ernest v. Red Creek Cent. School Dist., 93 NY2d 664, 671 (1999).
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`In this matter, the testimony and affidavits of plaintiff and Patrick Whipple establish that
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`Houseman had been engaging in conduct for years that should have led to investigation of
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`Houseman’s propensities prior to plaintiff being abused off of school property. It further
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`establishes that Houseman, had been inviting students to his home for the purpose of abusing
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`them for years under the guise of school related activities despite the expectation voiced by Mr.
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`Martino that teachers would not have students over to their homes unless they were friends with
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`the teacher’s children. As a result, defendants may be held liable for the abuse that occurred off
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`of school property as well as the incidents that occurred on school property.
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`III. Defendants’ arguments regarding “Negligent Training of Employees Other
`Than Houseman” is erroneous
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`Contrary to defendants’ argument that plaintiff cannot proceed with a claim of negligent
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`training and supervision to the extent it involves the training of employees aside from Houseman
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`(Hayes MOL, p. 21), defendants’ failure to properly train staff in the detection, reporting and
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`investigation of child sexual abuse is not pleaded as a separate cause of action but as an element
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`of their failure to properly supervise Houseman; see Amended Summons and Complaint at
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`Hayes Aff., Ex. B, ¶42-49. Defendants have not disputed their duty to properly supervise
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`Houseman, which encompasses proper training of employees regarding child sexual abuse and
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`their related duties, nor is there any dispute that Houseman’s acts of sexual abuse fell outside the
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`scope of his employment. Given the well-established law that claims of negligent supervision
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`generally require notice, nearly all negligent supervision claims involve some element of what
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`other employees observed and what expectations were placed on them with respect to reporting
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`their observations.
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 136
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`Such claims of negligent training and supervision involving school districts are routinely
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`pleaded and not subjected to dismissal. See Timothy Mc. v. Union City School Dist.¸ 127
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`A.D.3d 826, 829 (2d Dept. 2015) (plaintiffs not precluded from claiming that the school district
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`was negligent in its supervision and training); Boland v North Bellmore Union Free Sch. Dist,
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`169 A.D.3d 632, 634 (2d Dept. 2019); Werner v. Diocese of Rockville Ctr., 2020 N.Y. Misc.
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`LEXIS 2003 (Nassau Co. Supreme Ct. 2020); ARK246 DOE v. Archdiocese of N.Y.¸2022 N.Y.
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`Misc. LEXIS 10384 (N.Y. Co. Sup. Ct. 2022).
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`The case cited by defendants in support of their argument, Owen v. State¸160 A.D.3d
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`1410 (4th Dept. 2018), states nothing to the contrary. That matter involved a trial on a claim of
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`false arrest, malicious prosecution, and negligent training and supervision based on an arrest for
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`Driving While Intoxicated. The arresting officer stopped the plaintiff at a roadblock for a
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`missing registration sticker, observed bloodshot eyes, slurred speech and other indicia of
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`intoxication, and subsequently arrested the plaintiff. The officer’s supervisor also testified to
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`observing plaintiff’s watery eyes and smelled alcohol. Owen v. State¸ 160 A.D.3d at 1411. The
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`Court of Claims, which dismissed all claims, dismissed the cause of action for negligent training
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`and supervision because the arresting office and his supervisor were clearly acting within the
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`scope of their employment with respect to the arrest. Owen v. State¸ 160 A.D.3d at 1412. There
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`is no mention or discussion indicating that “training” of other employees is a separate issue from
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`supervision warranting dismissal, that the failure of other employees to observe and report the
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`officer’s conduct was even an issue in the case, or that the matter involved anything other than
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`the actions of the officers directly involved in making the arrest, which was within the scope of
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`their employment. Basically, the Fourth Department determined that because the officers
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`FILED: ORLEANS COUNTY CLERK 08/17/2023 11:34 AM
`NYSCEF DOC. NO. 136
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 08/17/2023
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`directly involved in the arrest acted properly and within the scope of their employment, there
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`could be no claim for negligent training and supervision.
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`Finally, to the extent the Court may agree with defendants that the training of other
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`employees sounds in respondeat superior despite its relationship to supervision of Houseman, the
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`proper recourse is not dismissal of the claim, but instead to allow the claim to proceed under the
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`theory of respondeat superior. In Ruiz v. Cope, 120 A.D.3d 1333 (4th Dept. 2014), appeal
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`denied, 120 A.D.3d 1612 (4th Dept. 2014), the decision underlying Owen v. State¸ supra, the
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`Fourth Department found that although it was error not to dismiss a claim of negligent training
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`and supervision on summary judgment and subsequently to find a municipality liable under that
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`theory because the police officer was acting within the scope of his employment, the error was
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`harmless as the municipality was nonetheless liable under the theory of respondeat superior.
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`Here, with respect to the actual understanding of defendants’ employees regarding their
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`duties, the only evidence produced by defendants regarding any policy or procedures with
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`respect to child sexual abuse was a single policy that was inconsistent with New York State
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`reporting requirements of the time period. All former teachers testified to no recall regarding the
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`existence of any policies or training by defendants. While defendants urge that they nonetheless
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`understood they had a duty to report to their supervisor if they knew or suspected abuse, there is
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`no evidence that they received any training regarding what standard applied. Former
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`superintendent Mr. Bow testified that he allowed a teacher suspected of inappropriate contact
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`with a student to leave for another job without any further investigation, without generating a
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`record of the report, and without even learning the name of the