throbber
FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
`NYSCEF DOC. NO. 137
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 10/25/2023
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
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`AB 511 DOE,
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`v.
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`LYNDONVILLE CENTRAL SCHOOL DISTRICT;
`LYNDONVILLE ELEMENTARY SCHOOL.
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` Index No.: 20-46602
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`Plaintiff,
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`Defendants.
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`REPLY AFFIRMATION OF MEGHAN M. HAYES
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`Meghan M. Hayes affirms the following under the penalties of perjury:
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`1.
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`I am an attorney, duly authorized to practice before the Courts of the
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`State of New York and an associate with the law firm Webster Szanyi LLP, attorneys for
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`defendants Lyndonville Central School District and Lyndonville Elementary School
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`(collectively the “District”). I am fully familiar with the facts and circumstances of this case.
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`2.
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`I submit this affirmation in further support of the District’s motion and
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`in opposition to Plaintiff’s cross motion for summary judgment pursuant to CPLR 3212
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`seeking dismissal of the Amended Complaint in its entirety.
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`3.
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`The District has established its entitlement to summary judgment
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`and the Plaintiff has failed to either rebut the District’s showing or establish his own prima
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`facie entitlement to relief.
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`Background
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`4.
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`5.
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`There is no genuine issue of material fact in this case.
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`All of the evidence developed in this matter definitively establishes
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`that prior to the 1990 report of abuse, the District had no notice that Houseman was a
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`danger to children, and as soon as the District received notice of Houseman’s
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`FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 10/25/2023
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`propensities, Houseman was reported to law enforcement and removed from the District.
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`6.
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`Accordingly, the District cannot be liable for negligently supervising
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`Plaintiff, negligently hiring, training or retaining Houseman, or breaching its statutory duty
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`to report, and Plaintiff’s Complaint must be dismissed, in its entirety and with prejudice.
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`The District Had No Notice of Houseman’s Propensities Prior to December 1990
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`7.
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`For the District to be liable for negligent supervision of Plaintiff, or
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`negligent hiring, training, retention or supervision of Houseman, the District must have
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`had notice of Houseman’s specific propensity for sexual abuse, such that the abuse of
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`Plaintiff was foreseeable. (See Reply Memorandum of Law).
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`8.
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`Prior to Houseman’s 1990 arrest, the District had no actual or
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`constructive notice of Houseman’s propensities.
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`9.
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`Six former District employees testified that prior to December 1990,
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`they had no reason to suspect Houseman was acting inappropriately with or sexually
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`abusing children prior to his arrest in December 1990. (SOF, ¶¶ 49, 53, 63, 66, 68, 71,
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`73, 86, 90, 91, 93, 104, 110, 115, 116; Hayes Aff., Exs. E-J generally). No one testified
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`to the contrary.
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`10. Until 1990, the District never received any complaints about
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`Houseman acting inappropriately with students. (SOF ¶ 29; Marek Aff., Ex. A, p. 000202-
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`000361).
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`11. Houseman received only positive evaluations from when he began
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`teaching at the District until his resignation more than two decades later. (SOF ¶¶ 24-26;
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`Marek Aff., Ex. A, p. 000286-000316).
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`12.
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`There is nothing in Houseman’s personnel file that suggests the
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`District knew or should have known of Houseman’s propensities for abuse prior to 1990.
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`(SOF ¶ 29; Marek Aff., Ex. A, p. 000202-000361).
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`13. Plaintiff did not tell anyone about the abuse. (SOF ¶ 123; Hayes Aff.,
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`Ex. D, p. 63, 82-83, 89-91).
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`14. Plaintiff also testified that at the time, he had no reason to think that
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`anyone at the District knew that he was being abused by Houseman. (SOF ¶ 124; Hayes
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`Aff., Ex. D, pp. 91-92, 99).
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`15. Plaintiff attempts to manufacture notice by submitting a self-serving
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`affidavit materially altering his deposition testimony. (Costanzo Aff., Ex. M).
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`16. At his deposition, Plaintiff testified that on one occasion, Houseman
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`had him stay alone after class and “this one certain instance [Houseman] had my hand in
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`his pants, and Mrs. Bane came walking through the door. And I could tell that she was
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`startled and obviously I was startled, he was startled. And she then, after a couple of
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`seconds, you know, started talking to him, and then she left the room.” (Hayes Aff., Ex.
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`D, p. 68-69).
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`17. Plaintiff was asked “[d]o you know approximately when in the school
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`year this happened?” Plaintiff responded “I do not.” (Hayes Aff., Ex. D, p. 69).
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`18. Plaintiff now claims that this incident with Ms. Bane occurred “shortly
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`after [Houseman] began abusing me in the fifth-grade school year.” (Costanzo Aff., Ex.
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`M ¶ 3).
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`19. Regarding the positioning of Plaintiff and Houseman in relation to the
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`door, Plaintiff was asked “was your back to the door or were you facing the door when
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`Ms. Bane walked in?” Plaintiff responded “[m]y backside was kind of --- my left side,
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`FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
`NYSCEF DOC. NO. 137
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`INDEX NO. 20-46602
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`backside, was kind of facing the door.” (Hayes Aff., Ex. D p. 71).
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`20. Plaintiff further testified as follows:
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`Q: So when Ms. Bane walked in, did you have to rotate your head
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`to see her?
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`A: Yes. I rotated my whole body.
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`Q: And when you did that, where was Mr. Houseman’s hands?
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`A: I don’t recall.
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`Q: And where were your hands when you rotated your body?
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`A: I believe they came off of his lap….
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`Q: Was your body blocking the area of his genital region?
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`A: Yes.
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`(Hayes Aff., Ex. D, p. 72).
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`21. Plaintiff attempts to alter this testimony by now claiming that he spun
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`to the left and stepped back, and that his hand being removed from Houseman’s genital
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`region would have been visible to Ms. Bane, despite previously testifying that his body
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`was blocking Houseman’s genital region. (Costanzo Aff., Ex. M, ¶ 4).
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`22. At his deposition Plaintiff testified that he believed Ms. Bane saw
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`Houseman abusing him. When asked what he was basing his belief on, Plaintiff simply
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`responded “[b]ecause she was startled.” (Hayes Aff. Ex. D, p. 73).
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`23. Plaintiff was also asked “you said at some point [Ms. Bane] started
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`speaking. Do you recall what she was saying when she started speaking?” Plaintiff
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`testified “I don’t. It was just a quick conversation. It lasted fifteen seconds, maybe.” “Q:
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`And did Ms. Bane ever say anything that made you believe that she was startled?” “A:
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`FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
`NYSCEF DOC. NO. 137
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`INDEX NO. 20-46602
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`No.” (Hayes Aff., Ex. D, p. 73).
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`24. Plaintiff again seeks to change his testimony by claiming that he
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`heard Ms. Bane “let out a loud gasp” and that she was “stumbling over her words as if
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`she did not know what to say.” (Costanzo Aff., Ex. M, ¶ 4).
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`25.
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`Finally, at his deposition Plaintiff was asked, “[d]o you have any
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`recollection as to whether Mr. Houseman’s pants stayed unzipped while Ms. Bane was in
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`the classroom?” Plaintiff responded, “I have no recollection.” (Hayes Aff., Ex. D, p. 74).
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`26. Now Plaintiff claims to recall that when Ms. Bane walked into the
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`classroom, Houseman turned his chair away from Ms. Bane, and “clearly was either
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`adjusting his pants or zipping them up.” (Costanzo Aff., Ex. M ¶ 5).
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`27. Plaintiff’s testimony at his deposition clearly established that it would
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`have been impossible for Ms. Bane to have seen Plaintiff’s hand in Houseman’s pants,
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`and that other than Plaintiff having the impression that Ms. Bane was startled, he had no
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`reason to believe she saw his hand in Houseman’s pants.
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`28. Plaintiff’s self-serving affidavit which attempts to materially alter his
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`deposition testimony to avoid the obvious consequences of his testimony, creates only a
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`feigned issue of fact and must be disregarded. (See Reply Memorandum of Law).
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`29.
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`Further, Ms. Bane specifically testified that she never witnessed
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`Houseman abusing Plaintiff, acting inappropriately with a student or sexually abusing a
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`student. (Hayes Aff. Ex. G, pp. 9-10, 13-14).
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`30. Accordingly, there is no genuine issue of fact as to whether Ms. Bane
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`witnessed Houseman abusing Plaintiff, and the District established that it did not have
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`notice of Houseman’s propensities.
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`FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
`NYSCEF DOC. NO. 137
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 10/25/2023
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`31.
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`Further, the abuse by Houseman was not foreseeable.
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`32. Houseman was Plaintiff’s primary teacher during the 1986-1987
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`school year and had a reason to spend time with Plaintiff. It was not unreasonable for
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`Plaintiff to be allowed to work one-on-one with Houseman, and the District did not breach
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`its duty to supervise Plaintiff. Dia CC v. Ithaca Central School Dist., 304 A.D.2d 955, 956
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`(3d Dept. 2003); Ghaffari v. North Rockland Cent. School Dist., 23 A.D.3d 342, 343 (2d
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`Dept. 2005).
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`33. Although Plaintiff claims that Houseman would touch Plaintiff and
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`other male students on their abdomen, chests and genitals in the school hallway and
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`entrance to the classroom while other teachers were around, (Costanzo Aff., Ex. M, ¶ 1),
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`at his deposition Plaintiff did not testify that any teachers or staff were present when
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`Houseman was allegedly touching Plaintiff and other students. (Costanzo Aff., Ex. A, pp.
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`77-78).
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`34. Additionally, each of the teachers deposed in this matter testified that
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`they never witnessed Houseman touching a student inappropriately. (SOF, ¶¶ 53, 63,
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`66, 73, 81, 91, 95, 116; Hayes Aff., Exs. E-J generally).
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`35.
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`There is no evidence that anyone other Plaintiff witnessed this
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`alleged touching by Houseman.
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`36. Plaintiff also submits the affidavit of Patrick Whipple in an attempt to
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`establish notice. (Costanzo Aff., Ex. L).
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`37. Whipple was a classmate of Plaintiff’s and Whipple’s observations
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`and impressions of Houseman’s interactions with Plaintiff, offered decades later and with
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`the value of hindsight, cannot create a question of fact sufficient to defeat the District’s
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`FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
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`INDEX NO. 20-46602
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`prima facie showing that it had no notice of Houseman’s alleged propensities.
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`38. Whipple’s allegation that Plaintiff was let into the school early is also
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`insufficient to establish notice, as he testified at his deposition that he never told his
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`parents or anyone at the District about Plaintiff being admitted early, and he further
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`testified that it was common knowledge that Plaintiff failed a grade and so it was assumed
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`that Plaintiff was simply receiving extra help from Houseman. (Costanzo Aff., Ex. H, pp.
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`34-36).
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`39. Allegations of abuse by other District employees are irrelevant to
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`whether the District had specific notice of Houseman’s dangerous propensities.
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`40. Plaintiff does not establish that any of the circumstances of the
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`alleged abuse by other teachers were the same as the circumstances of his own abuse,
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`such that the District should have recognized something about the interactions between
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`Plaintiff and Houseman to put the District on notice. (Plaintiff’ Opp., p. 8).
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`41. Plaintiff has failed to rebut the District’s showing that it had no notice
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`of Houseman’s propensities, and the District is therefore entitled to summary judgment.
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`Plaintiff’s Expert Must Be Disregarded
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`42. Plaintiff relies almost exclusively on the “expert” report of Sherryll
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`Kraizer in opposition to the District’s motion for summary judgment and in support of his
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`own cross motion for summary judgment. (Plaintiff’s Opp., generally; Costanzo Aff., ¶¶
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`22-32, 43, 45).
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`43. However, Dr. Kraizer’s “expert” report is inadmissible, speculative,
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`conclusory, and must be disregarded.
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`44. Dr. Kraizer’s report was submitted as an attachment to Plaintiff’s
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`FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
`NYSCEF DOC. NO. 137
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 10/25/2023
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`attorney affirmation and was neither sworn to nor affirmed. (Costanzo Aff., Ex. I). Dr.
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`Kraizer did not submit an affidavit.
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`45. Accordingly, Dr. Kraizer’s report is inadmissible and cannot be used
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`to either defeat the District’s motion for summary judgment or support Plaintiff’s cross
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`motion for summary judgment. The report and any argument based thereon must be
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`disregarded by the Court. (See Reply Memorandum of Law).
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`46.
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`Irrespective of the report’s inadmissibility, the report should be
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`disregarded because it is speculative, conclusory, unsupported and inherently flawed.
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`47.
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`In fact, the opinions offered by Dr. Kraizer have been disregarded as
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`speculative and conclusory in at least one other CVA case. See T.S. v. Holland Central
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`School Dist., Erie County Supreme Court, Hon. D. Chimes, J.S.C., Index No.
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`808449/2020 (May 1, 2023), attached as Exhibit A.
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`48. Dr. Kraizer cites virtually no support for her opinions, and the
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`authorities she does cite are entirely inapplicable to sexual abuse by educators in the
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`school context. (Costanzo Aff., Ex. I).
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`49.
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`For example, Dr. Kraizer’s opinion relies heavily on the Social
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`Services Law, which addressed abuse by parents and others legally responsible for a
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`child’s care, not abuse in an educational setting. (Costanzo Aff., Ex. I, pp. 7-8, 13-17).
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`50.
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`Further, Dr. Kraizer makes the statement “[e]ducator sexual
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`misconduct has long been recognized,” and cites three sources presumably to support
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`this statement. (Costanzo Aff., Ex. I, p. 8).
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`51. However, these sources say nothing about educator sexual
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`misconduct, and only discuss the educator’s role in helping to identify and prevent abuse
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`by parents. Attached as Exhibits B and C are copies of Laurel Richard’s article “Can the
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`Schools Help Prevent Child Abuse?” and George Murdock’s article “The Abused Child
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`and the School System.” Although the District was unable to locate a copy of David
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`Martin’s 1973 article “The Growing Horror of Child Abuse and the Undeniable Role of the
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`Schools in Putting an End to It,” a 1976 report issued by the U.S. Department of Health,
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`Education and Welfare entitled “Child Abuse and Neglect: The Problem and Its
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`Management, Volume 1- An Overview of the Problem” references the 1973 article and
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`does not address educator sexual abuse.
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`52.
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`In fact, it was not until 2001 that New York State first addressed the
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`problem of sexual abuse in schools with the enactment of Article 23-B of the New York
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`Education Law entitled “Child Abuse in an Educational Setting.” (Affidavit of Elizabeth
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`Jeglic, ¶ 16).
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`53. Dr. Kraizer purports to opine on adequacy of the District’s policies,
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`procedures, and training, but fails to cite anything to establish the standard of care at the
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`time. (Costanzo Aff., Ex. I).
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`54. Dr. Kraizer’s report is entirely conclusory, fails to establish a
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`foundation for her opinions, and must be disregarded.
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`The District’s Policies and Procedures Conformed to the Standard of Care
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`55.
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`In response to Plaintiff’s cross-motion for summary judgment, the
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`District submits the affidavit of Dr. Elizabeth Jeglic, an expert in the field of sexual abuse,
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`grooming behaviors, historical sexual abuse, and institutional responsibility for the
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`prevention of sexual abuse. (Jeglic Aff., ¶¶ 1-5).
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`56. Sexual abuse by educators and individuals employed in child serving
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`organizations was not well researched or understood in the 1980s. (Jeglic Aff. ¶ 9).
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`Accordingly, it was not widely believed or understood in either the law enforcement
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`community or the education field that sexual abuse by educators was a threat to students
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`that needed to be addressed at that time. (Jeglic Aff., ¶ 9, Ex. B, p. 2).
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`57.
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`The risk of sexual abuse in schools was not widely known until the
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`early 2000s, and it was not until 2001 that policies and procedures for reporting,
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`investigating and identifying educator sexual misconduct were standardized. (Jeglic Aff.,
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`¶¶ 13-16, Ex. B, p. 2).
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`58.
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`The behaviors of individuals in child serving organizations such as
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`schools that we consider to be “grooming” today, were not understood to be warning signs
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`of possible sexual abuse in the 1980s. (Jeglic Aff. ¶ 17, Ex. B, p. 3-4).
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`59.
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`“Sexual grooming” only began to be recognized by researchers in
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`the early 2000s. (Jeglic Aff. ¶ 18, Ex. B, p. 3).
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`60.
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`The behaviors Plaintiff identifies as “grooming” would not have been
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`recognized by the District as potential warning signs of sexual abuse based upon what
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`was known in the 1980s. (Jeglic Aff. ¶ 19, Ex. B, pp. 3-4).
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`61. Based upon Houseman’s publicly observable behavior in the school
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`and community, the District could not have known Houseman was a danger to Plaintiff.
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`(Jeglic Aff. ¶ 20, Ex. B, p. 3).
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`62. Educator sexual abuse prevention training was not standard practice
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`in school systems in the United States in the 1980s. (Jeglic Aff. ¶ 21, Ex. B, p. 5).
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`63. By promptly reporting the allegations of abuse to law enforcement
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`when the allegations arose, the District’s actions were in line with mandated reporter
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`guidelines and met or exceeded standard practice at the time. (Jeglic Aff. ¶ 26, Ex. B, p.
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`6).
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`The District Did Not Negligently Hire, Supervise, or Retain Houseman
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`64.
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`To state a claim for negligent hiring, training, retention and
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`supervision, a plaintiff must establish that the employer knew or should have known of
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`the employee’s propensity for the conduct which caused the injury. (See Reply
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`Memorandum of Law).
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`65. As established above, and in all other papers submitted in support of
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`this motion, the District had no notice of Houseman’s propensities until 1990, and
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`therefore did not negligently supervise, hire, train or retain Houseman.
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`66.
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`The District produced evidence regarding Houseman’s hiring,
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`including Houseman’s personnel file, which included his application for employment.
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`(Marek Aff., Ex. A pp. 000360-000361). Houseman was appointed and confirmed by the
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`Board of Education. (SOF, ¶ 22). Ms. Hurtgam and Ms. Townsend, both of whom were
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`hired around the time of Houseman testified that they were interviewed by someone from
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`the District. (Costanzo Aff., Ex. F, pp. 23-24; Costanzo Aff., Ex. G, p. 23).
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`67.
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` There is nothing to suggest that Houseman was not interviewed
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`prior to being hired.
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`68. Regardless, it is undisputed that prior to 1990, Houseman had no
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`criminal record, and there is nothing in Houseman’s background that would cause a
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`reasonably prudent employer to further investigate. (SOF ¶ 43).
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`69.
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`Further, the District did not negligently retain Houseman. As soon as
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`the District learned of Houseman’s propensities, he was reported to law enforcement and
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`removed from the District.
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`70. Ms. Bane did not have notice of Houseman’s propensities during the
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`1986-1987 school year, and Plaintiff’s attempt to create a question of fact by
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`mischaracterizing Ms. Bane’s testimony fails.
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`71. At her deposition, Ms. Bane was asked whether she remembered
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`any circumstance where she saw Mr. Houseman interacting with students. Ms. Bane
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`replied that she did not understand the question because she was a teacher. (Costanzo
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`Aff., Ex. D, p. 34).
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`72. Plaintiff’s counsel then asked Ms. Bane “what specifically [she]
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`remember[ed], if anything, about Mr. Houseman’s interactions with his students that [she]
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`directly observed.” (Id.). To which Ms. Bane replied that she didn’t have any specific
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`recollection. (Id.).
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`73. Ms. Bane did not testify that she could not recall Houseman ever
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`interacting with students, just that she could not recall any specific details about
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`Houseman’s interactions with students. (Id.).
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`74.
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` Regardless, Ms. Bane unequivocally denied ever seeing Houseman
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`abuse Plaintiff or act inappropriately with Plaintiff or any other student. (Hayes Aff. Ex. G,
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`p. 9-10, 13-14).
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`Plaintiff’s Breach of Statutory Duty to Report Claim Fails
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`75. Plaintiff’s claim for breach of the Social Services Law also fails.
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`76. Plaintiff admits that he did not tell anyone at the District about the
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`abuse, and there is no evidence to suggest that anyone at the District knew of the alleged
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`abuse.
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`77.
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`Therefore, the District did not knowingly and willfully fail to report
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`the abuse in violation of its obligations under the Social Services Law.
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`78.
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` Regardless, the reporting requirements of the Social Services Law
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`only apply to abuse committed by an individual legally responsible for a child’s care.
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`Because Houseman was unquestionably not responsible for Plaintiff’s care, the reporting
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`requirements of the Social Services Law do not apply.
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`Conclusion
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`79. Based on the foregoing, as well as the arguments set forth in the
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`previously submitted papers and the accompanying memorandum of law, the District
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`Defendants request that this Court grant its motion for summary judgment dismissing
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`Plaintiff’s Complaint, in its entirety and with prejudice, and denying Plaintiff’s cross motion
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`for summary judgment, along with such other and further relief the Court deems
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`necessary.
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`Dated: October 25, 2023
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`s/ Meghan M. Hayes
`Meghan M. Hayes
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`FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 10/25/2023
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`WORD COUNT LIMIT CERTIFICATION
`
` I
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` hereby certify pursuant to 22 NYCRR 202.8-b that the foregoing Affirmation was
`prepared on a computer using Microsoft Word.
`
`Type. A proportionally spaced typeface was used, as follows:
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`Name of typeface: Arial
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`Point size:
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`Line Spacing: Double
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`12
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`Word Count. The total number of words in this Affirmation, inclusive of point headings
`and footnotes and exclusive of pages containing the table of contents, table of citations,
`proof of service and this Statement is 3,178 words.
`
`
`
`Dated:
`
`October 25, 2023
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` s/ Meghan M. Hayes
` Meghan M. Hayes
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`14
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`14 of 14
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`

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