FILED: ORLEANS COUNTY CLERK 10/25/2023 02:56 PM
`NYSCEF DOC. NO. 144
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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 MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO
`PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
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`WEBSTER SZANYI LLP
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`Attorneys for Defendants
` Lyndonville Central School District and
` Lyndonville Elementary School
`424 Main Street, Suite 1400
`Buffalo, New York 14202
`(716) 842-2800
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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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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ............................................................................................... ii
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`PRELIMINARY STATEMENT ......................................................................................... 1
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`ARGUMENT .................................................................................................................... 1
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`Page
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`I.
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`The District Had No Actual or Constructive Knowledge of Houseman’s
`Propensities Prior to December 1990 ............................................................. 1
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`A. Plaintiff’s Self-Serving Affidavit Does Not Create a Question of Fact ...... 3
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`B. The Abuse by Houseman Was Not Foreseeable .................................... 6
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`C. Houseman’s Alleged Contact with Students in the Hallways Does Not
`Constitute Notice ..................................................................................... 7
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`D. The Affidavit of Patrick Whipple is Insufficient to Establish Notice .......... 8
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`E. The District’s Policies and Procedures Were Not Deficient ..................... 9
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`F. Alleged Abuse by Teachers Other Than Houseman is Irrelevant ........... 9
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`III.
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`II. Plaintiff’s “Expert” Report Must Be Disregarded ............................................ 10
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`The District’s Policies and Procedures Conformed to the Relevant Standard
`of Care .......................................................................................................... 14
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`The District Did Not Negligently Hire Houseman ........................................... 16
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`The District Did Not Negligently Retain Houseman or Negligently Train or
`Supervise Other Employees .......................................................................... 17
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`IV.
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`V.
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`VI. Plaintiff’s Breach of the Social Services Law Claim Fails .............................. 18
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`CONCLUSION .............................................................................................................. 19
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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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`TABLE OF AUTHORITIES
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`Cases
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`Austin v. CDGA Nat. Bank. Tr.,
`114 A.D.3d 1298 (4th Dept. 2014) ............................................................................. 11
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`Behan v. New York Yankees P’ship,
`89 A.D.3d 589 (1st Dept. 2011) ................................................................................... 3
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`Dia CC v. Ithaca City Sch. Dist.,
`304 A.D.2d 955 (3d Dept. 2003) .............................................................................. 2, 6
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`Diana G-D ex rel. Ann D. v. Bedford Cent. School Dist.,
`33 Misc.3d 970 (Sup. Ct. Westchester Cnty. 2011)
`aff’d sub nom Diana Michelle G. v. Bedford Cent. School Dist.,
` 104 A.D.3d 805 (2d Dept. 2013) ................................................................................ 19
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`Diaz v. New York Downtown Hosp.,
`99 N.Y.2d 542 (2002) ................................................................................................ 12
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`Doe v. Rohan,
`17 A.D.3d 509 (2d Dept. 2005) .................................................................................... 2
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`Doe v. Whitney,
`8 A.D.3d 610 (2d Dept. 2004) ...................................................................................... 6
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`Estevez-Yalcin v. Children’s Village,
`331 F. Supp. 2d 170 (S.D.N.Y. 2004) ........................................................................ 16
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`Fallon v. Duffy,
`95 A.D.3d 1416 (3d Dept. 2012) ................................................................................ 11
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`Fernandez v. VLA Realty, LLC,
`45 A.D.3d 391 (1st Dept. 2007) ................................................................................... 3
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`Frees v. Frank & Walter Eberhart L.P. No. 1,
`71 A.D.3d 491 (1st Dept. 2010) ................................................................................. 11
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`Ghaffari v. N. Rockland Cent. Sch. Dist.,
`23 A.D.3d 342 (2d Dept. 2005) .......................................................................... 2, 7, 10
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`Kenneth R. v. Roman Catholic Diocese of Brooklyn,
`229 A.D.2d 159 (2d Dept. 1997) ................................................................................ 16
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 10/25/2023
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`Mary KK v. Jack LL,
`203 A.D.2d 840 (3d Dept. 1994) .................................................................................. 2
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`Mauro v. Rosedale Enterprises,
`60 A.D.3d 401 (1st Dept. 2009) ................................................................................. 12
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`Menzel v. Plotnick,
`202 A.D.2d 558 (2d Dept. 1994) ................................................................................ 11
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`Pater v. City of Buffalo,
`141 A.D.3d 1130 (4th Dept. 2016) ............................................................................. 17
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`Phillips v. McClellan Street Associates,
`262 A.D.2d 748 (3d Dept. 1999) ................................................................................ 12
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`Pinks v. Turnbull,
`25 Misc. 3d 1245(A) (N.Y. Sup. Ct. 2009) ................................................................... 8
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`Salas v. Adirondack Transit Lines,
`172 A.D.3d 775 (2d Dept. 2019) ................................................................................ 12
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`Ulm I Holding Corp. v. Antell,
`155 A.D.3d 585 (1st Dept. 2017) ............................................................................... 11
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`Vila v. Foxglove Taxi Corp.,
`159 A.D.3d 431 (1st Dept. 2018) .............................................................................. 3, 6
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`Statutes
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`2000 N.Y. Sess. Laws Ch. 182 ..................................................................................... 13
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`N.Y. Soc. Serv. Law § 413 ............................................................................................ 13
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`There is no genuine issue of material fact in this case. From 1970-1990,
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`PRELIMINARY STATEMENT
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`Terry Houseman was a fifth-grade teacher at Lyndonville Central School District (the
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`“District”). During the 1986 to 1987 school year, Plaintiff AB511 Doe was a fifth-grade
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`student at Lyndonville Elementary School and was sexually abused by Houseman.
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`Houseman was arrested in 1990, (3 years after Plaintiff’s alleged abuse) when
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`Lyndonville Elementary School principal Russel Martino reported Houseman to the police
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`for molesting a child. 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. Accordingly, the District cannot be liable for negligent supervision of
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`the Plaintiff, or negligent hiring, training, retention and/or supervision of Houseman. The
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`District established its entitlement to judgment as a matter of law, and Plaintiff failed to
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`rebut the District’s showing, or establish his own entitlement to summary judgment.
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`Therefore, the District’s motion for summary judgment should be granted, Plaintiff’s cross
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`motion for summary judgment denied, and Plaintiff’s Complaint dismissed, in its entirety
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`and with prejudice.
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`ARGUMENT
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`The District Had No Actual or Constructive Knowledge of Houseman’s
`Propensities Prior to December 1990.
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`I.
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`In its moving papers the District established that it had no notice of
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`Houseman’s alleged propensities and that the abuse by Houseman was not foreseeable.
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`Plaintiff failed to rebut the District’s showing with any evidence in admissible form, or to
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`demonstrate that the District had actual or constructive notice of the threat posed by
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`Houseman. Plaintiff relies entirely on an unsworn report of an expert whose opinions have
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`recently been precluded by this Court (and are inadmissible here) and the Plaintiff’s
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`speculation of what another teacher may have seen; ignoring the fact that the teacher
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`denies under oath seeing anything inappropriate between the Plaintiff and Houseman.
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`Plaintiff’s opposition falls woefully short. Accordingly, the District cannot be liable
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`negligent supervision, or negligent hiring, training, retention or supervision.
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`Schools are not insurers of student safety, and a school district may only be
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`held liable for “injuries that are foreseeable and proximately related to the school’s failure
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`to provide adequate supervision.” Dia CC v. Ithaca City Sch. Dist., 304 A.D.2d 955, 956
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`(3d Dept. 2003); Doe v. Rohan, 17 A.D.3d 509, 511 (2d Dept. 2005) (same). The test for
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`determining whether a school provided adequate supervision is whether the district
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`exercised the “same degree of care and supervision over the pupils under its control as
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`a reasonably prudent parent would exercise under the same circumstances.” Mary KK v.
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`Jack LL, 203 A.D.2d 840, 841 (3d Dept. 1994) (citing Logan v. City of New York, 148
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`A.D.2d 167, 171 (1st Dept. 1989)). A school district is entitled to summary judgement
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`where it presents evidence “that it had no specific knowledge or notice of the subject
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`teacher’s propensity for sexual misconduct.” Ghaffari v. N. Rockland Cent. Sch. Dist., 23
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`A.D.3d 342, 343 (2d Dept. 2005).
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`The District has established that it did not have notice of Houseman’s
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`propensities prior to December 1990. Each of the six former District employees who were
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`deposed in this matter testified that they had no reason to suspect Houseman was acting
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`inappropriately with or sexually abusing children prior to his arrest in December 1990.
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`(SOF, ¶¶ 49, 53, 63, 66, 68, 71, 73, 86, 90, 91, 93, 104, 110, 115, 116; Hayes Aff., Exs.
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`E-J generally). No one testified to the contrary. Until 1990 the District had not received
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`any complaints about Houseman. (SOF ¶ 29; Marek Aff., Ex. A, p. 000202-000361).
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`Houseman received only positive evaluations from when he began teaching at the District
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`until his resignation, more than two decades later. (SOF ¶¶ 24-26; Marek Aff., Ex. A, p.
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`000286-000316). There is nothing in Houseman’s personnel file that suggests the District
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`knew or should have known of Houseman’s propensities for sexual abuse. (SOF ¶ 29;
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`Marek Aff., Ex. A, p. 000202-000361). Plaintiff testified that he did not tell anyone about
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`the abuse. (SOF ¶ 123; Hayes Aff., Ex. D, p. 63, 82-83, 89-91). Plaintiff also testified that
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`at the time, he had no reason to think that anyone at the District knew or suspected that
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`he was being abused by Houseman. (SOF ¶ 124; Hayes Aff., Ex. D, pp. 91-92, 99).
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`A. Plaintiff’s Self-Serving Affidavit Does Not Create a Question of Fact.
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`Plaintiff attempts to manufacture notice by submitting a self-serving affidavit
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`altering his testimony about what occurred on the day Ms. Bane allegedly walked in while
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`Houseman was abusing Plaintiff. (Costanzo Aff., Ex. M). It is well settled that “[a]ffidavit
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`testimony that is obviously prepared in support of litigation that directly contradicts
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`deposition testimony previously given is insufficient to defeat the motion for summary
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`judgment.” Behan v. New York Yankees P’ship, 89 A.D.3d 589, 590 (1st Dept. 2011); Vila
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`v. Foxglove Taxi Corp., 159 A.D.3d 431, 431 (1st Dept. 2018) (“[a] party’s affidavit that
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`contradicts his prior sworn testimony creates only a feigned issue of fact and is insufficient
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`to defeat a properly supported motion for summary judgment.”); Fernandez v. VLA Realty,
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`LLC, 45 A.D.3d 391, (1st Dept. 2007) (“self-serving statements…that clearly contradict[]
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`plaintiff’s own deposition testimony…are insufficient to raise a triable issue of fact.”).
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`At his deposition, Plaintiff testified that on one occasion, Houseman had him
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`stay alone after class and “this one certain instance [Houseman] had my hand in his
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`pants, and Mrs. Bane came walking through the door. And I could tell that she was startled
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`and obviously I was startled, he was startled. And she then, after a couple of seconds,
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`you know, started talking to him, and then she left the room.” (Hayes Aff., Ex. D, p. 68-
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`69). Plaintiff testified that when Ms. Bane walked in, his back side was to the door, he
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`turned his entire body around and his hands came off Houseman’s lap, and his body was
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`blocking Houseman’s genital region. (Hayes Aff., Ex. D, pp. 71-72). When asked why he
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`believed Ms. Bane saw his hands in Houseman’s pants, Plaintiff only said, “because she
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`was startled” and testified that Ms. Bane did not say anything that made him believe she
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`was startled. (Hayes Aff., Ex. D, p. 73, “Q: And did Ms. Bane ever say anything that made
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`you believe she was startled? A: No.”).
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`Now, in opposition to the District’s motion for summary judgment Plaintiff
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`submits an affidavit materially altering his deposition testimony. Plaintiff now claims that
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`Ms. Bane let out a loud gasp, stumbled over her words, and that his hand being removed
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`from Houseman’s pants would have been fully visible to Ms. Bane because he stepped
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`to the side. (Costanzo Aff., Ex. M ¶ 4). Yet, Plaintiff testified that when he turned around
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`after Ms. Bane walked in, his body was blocking Houseman’s genital region. (Hayes Aff.
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`Ex. D, pp. 71-72, “Q: So when Miss Bane walked in, did you have to rotate your head to
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`see her? A: Yes. I rotated my whole body…Q: Was your body blocking the area of his
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`genital region? A: Yes.”). Plaintiff’s deposition testimony regarding the incident directly
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`contradicts the assertion in his affidavit that he stepped to the side leaving Houseman’s
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`genital area visible.
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`Further, when asked if he had “any recollection as to whether Mr.
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`Houseman’s pants stayed unzipped while Miss Bane was in the classroom,” Plaintiff
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`replied, “I have no recollection.” (Hayes Aff., Ex. D, p. 74). Plaintiff now claims that during
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`the alleged pause, Houseman turned his chair so that his back was facing the door and
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`adjusted or zipped up his pants, and that Ms. Bane was stumbling over her words when
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`this happened. (Costanzo Aff., Ex. M ¶ 5). This was never testified to in Plaintiff’s
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`deposition, and Plaintiff had in fact testified that he had no recollection of whether
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`Houseman’s pants remained unzipped. (Hayes Aff., Ex. D, p. 74).
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`Finally, Plaintiff was asked at his deposition if he knew “approximately when
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`in the school year this occurred.” Plaintiff testified “I do not.” (Hayes Aff., Ex. D, p. 69).
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`Plaintiff now claims that the incident with Ms. Bane occurred “shortly after [Houseman]
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`began abusing me.” (Costanzo Aff., Ex. M ¶ 3).
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`Plaintiff’s self-serving affidavit is insufficient to defeat the District’s motion
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`for summary judgment and should be disregarded by this Court. Plaintiff’s deposition
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`testimony clearly established that it would have been impossible for Ms. Bane to see
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`Plaintiff’s hand in Houseman’s pants or Houseman’s pants unzipped. (Hayes Aff. Ex. D,
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`pp. 71-72). Plaintiff testified that the only reason he believed that Ms. Bane saw
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`Houseman abusing him is because she looked startled when she walked into
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`Houseman’s classroom. (Hayes Aff. Ex. D, p. 73). Plaintiff never testified that he heard
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`Ms. Bane gasp and stumble over her words, or that Houseman turned his chair so he
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`could adjust his pants, or, most importantly, that Plaintiff turned and stepped to the side
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`so that Houseman’s genital region was in full view of Ms. Bane. Plaintiff’s affidavit is
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`nothing more than a desperate attempt to fabricate a question of fact when none exists,
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`and creates only a “feigned issue of fact.” Vila, 159 A.D.3d at 431. This is patently
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`insufficient to defeat the District’s motion for summary judgement, or to establish Plaintiff’s
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`prima facie entitlement to summary judgment.
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`B. The Abuse by Houseman Was Not Foreseeable.
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`“[A] school has a duty to adequately supervise students in its care, and may
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`be held liable for injuries that are foreseeable and proximately related to the school’s
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`failure to provide adequate supervision.” Dia CC v. Ithaca Central School Dist., 304
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`A.D.2d 955, 956 (3d Dept. 2003). For a school to be liable for negligent supervision, a
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`plaintiff “must demonstrate the school’s prior knowledge or notice of the individual’s
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`propensity or likelihood to engage in such conduct, so that the individual’s acts could be
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`anticipated or were foreseeable.” Id.
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`Plaintiff claims that he was removed from other classes by Houseman, and
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`that this, in and of itself is sufficient to establish that the District breached its duty in loco
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`parentis. (Plaintiff’s Opp., p. 7-8). However, the case Plaintiff cites, Doe v. Whitney, 8
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`A.D.3d 610, 611-612 (2d Dept. 2004), does not support this argument. In Doe v. Whitney,
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`the plaintiff was abused by his first-grade teacher for approximately three years. Id. The
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`abuse began while the plaintiff was in first grade, and continued while plaintiff was in
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`second and third grades. Id. Testimony established that even after the abuser was no
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`longer the plaintiff’s teacher, he would remove the plaintiff from other classes, without
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`reason or explanation. Id.
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`Here, there is no allegation that Plaintiff was abused by Houseman after
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`Houseman was no longer Plaintiff’s teacher. (SOF ¶ 8). Unlike the plaintiff in Doe v.
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`Whitney, Plaintiff was not removed from class by a teacher whom he had no reason to be
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`spending time with. Rather, the facts of this case are more similar to the facts in Dia CC,
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`where the Third Department granted summary judgment in favor of the defendant district.
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`304 A.D.3d at 956. In Dia CC, the plaintiff was evaluated by an English as a Second
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`Language teacher during his enrollment in the school. Id. at 955. On other occasions after
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`the initial evaluation, the ESL teacher removed the plaintiff from his class with the
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`permission of his classroom teacher for further evaluation. The Court held that the
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`“classroom teacher acted reasonably in releasing [the plaintiff] to another teacher.
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`Allowing a teacher to work alone one-on-one with a student did not breach the District’s
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`duty to supervise students.” Id. Like in Dia CC where the alleged abuser had a reasonable
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`explanation for removing the plaintiff from his class, Houseman was Plaintiff’s primary
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`teacher and therefore, allowing Plaintiff to work one-on-one with Houseman was not
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`unreasonable and did not breach the District’s duty to supervise Plaintiff. See also
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`Ghaffari, 23 A.D.3d at 343 (plaintiff failed to raise a triable issue of fact regarding whether
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`defendant “provided inadequate supervision by allowing the subject teacher to meet
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`privately with the infant plaintiff.”).
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`C. Houseman’s Alleged Contact With Students In the Hallways Does Not
`Constitute Notice.
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`Plaintiff alleges that Houseman would touch Plaintiff and other male
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`students on their abdomen, chests and genitals in the school hallway and entrance to the
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`classroom while other teachers were around. (Plaintiff’s Opp., p. 12). Yet, at his
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`deposition Plaintiff did not testify that any teachers or staff were present when Houseman
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`was allegedly touching Plaintiff and other students. (Costanzo Aff., Ex. A pp. 77-78).
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`Additionally, each of the teachers deposed in this matter testified that they never
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`witnessed Houseman touching a student inappropriately. (SOF, ¶¶ 53, 63, 66, 73, 81,
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`91, 95, 116; Hayes Aff., Exs. E-J generally). There is no evidence that anyone other
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`Plaintiff witnessed this alleged touching by Houseman.
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`This Court’s decision in AB 514 Doe v. Amherst Central School District,
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`which Plaintiff relies on in support of his contention that this alleged touching is sufficient
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`to establish notice, is neither persuasive nor authoritative. In AB 514 Doe, evidence
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`established that in addition to the abuser touching the victim in the hallway, employees of
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`the defendant district testified that it was common knowledge that the abuser had
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`inappropriate sexual relationships with students, that multiple employees had reported
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`the abuser for being too friendly with students, and that the abuser’s relationship with the
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`victim had even been reported to administration. (Costanzo Aff., Ex. P, pp. 14-18). Here,
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`there is nothing other than the alleged touching in the hallway (which only Plaintiff testified
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`to), to suggest that Houseman was a danger to students. Plaintiff’s “‘guess work, musings
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`in hindsight, speculation, or intuition’ does not constitute notice.” Pinks v. Turnbull, 25
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`Misc. 3d 1245(A), at *6 (N.Y. Sup. Ct. 2009) (citing Steinborn v. Himmel, 9 A.D.3d 531,
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`534 (3d Dept. 2004)).
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`D. The Affidavit of Patrick Whipple is Insufficient to Establish Notice.
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`Further, Plaintiff’s reliance on the affidavit of Patrick Whipple is misplaced.
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`(Ex. L). Whipple was a classmate of Plaintiff’s at the time of the alleged abuse. (Costanzo
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`Aff., Ex. H, pp. 11-12). Whipple’s observations and impressions of Houseman’s
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`interactions with Plaintiff, offered decades later and with the value of hindsight, cannot
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`create a question of fact sufficient to defeat the District’s prima facie showing that it had
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`no notice of Houseman’s alleged propensities. See Pinks, 25 Misc. 3d at *6. Whipple’s
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`allegation that Plaintiff was let into the school early is not sufficient to establish notice.
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`(Costanzo Aff., Ex. P, ¶ 8). Whipple testified that he did not tell his parents or anyone at
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`the District about Plaintiff being let into the building early. (Costanzo Aff., Ex. H, pp. 35-
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`36). There is no evidence that anyone at the District other than an alleged janitor and
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`Houseman knew that Plaintiff was in the building early. Further, Whipple testified that it
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`was common knowledge that Plaintiff failed a grade and it was generally assumed that
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`Plaintiff was allowed in early to receive extra help from Houseman. (Costanzo Aff., Ex.H,
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`pp. 34-35).
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`E. The District’s Policies and Procedures Were Not Deficient.
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`Plaintiff also argues that the District’s failure to have policies, procedures
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`and training in place to identify child abuse allowed Houseman to abuse Plaintiff.
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`(Plaintiff’s Opp., p. 7). Plaintiff relies on the report of Dr. Kraizer to make this argument.
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`(Id.). However as described in Point II below, any argument based upon Dr. Kraizer’s
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`report must be disregarded as her report is inadmissible and her conclusions are
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`speculative. (Point II infra). Regardless, the District’s expert establishes that the grooming
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`behaviors Plaintiff alleges the District should have recognized were not understood to be
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`warning signs of possible sexual abuse until decades after the incidents at issue here.
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`(Affidavit of Elizabeth Jeglic “Jeglic Aff.” ¶¶ 17-19). Dr. Jeglic concluded that none of
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`Houseman’s observable behaviors would have put the District on notice of the alleged
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`abuse, and that educator sexual abuse prevention training was not standard in U.S.
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`schools during the 1980s. (Jeglic Aff., ¶¶ 20-22). Dr. Jeglic also opines that when the
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`District was confronted with allegations of abuse by educators, the District’s response met
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`or exceeded the standard of care for the time. (Jeglic Aff., ¶¶ 25-26).
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`F. Alleged Abuse By Teachers Other Than Houseman Is Irrelevant.
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`Finally, Plaintiff’s reference to alleged abuse by other former District
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`employees is immaterial. Vague references to other teachers who may have abused
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`students is insufficient to create liability for the District based upon Houseman’s abuse of
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`Plaintiff. The District may only be liable for negligent supervision of Plaintiff if it had notice
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`of Houseman’s specific propensities for abuse. Ghaffari, 23 A.D.3d at 343 (defendant is
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`entitled to summary judgment dismissing a negligent supervision claim where it presents
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`evidence “that it had no specific knowledge or notice of the subject teacher’s propensity
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`for sexual misconduct.”). The District established that it did not know, and it had no reason
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`to know of Houseman’s alleged propensities, and therefore cannot be liable for the
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`alleged negligent supervision of Plaintiff. Further, Plaintiff does not establish that any of
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`the circumstances of the alleged abuse were the same, such that the District should have
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`recognized something about the interactions between Plaintiff and Houseman to put the
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`District on notice. (Plaintiff’s Opp., p. 8). Plaintiff failed to rebut the District’s showing and
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`failed to establish a prima facie case for negligent supervision. The District’s motion for
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`summary judgment must be granted and Plaintiff’s cross motion denied.
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`II.
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`Plaintiff’s “Expert” Report Must Be Disregarded.
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`Plaintiff relies almost exclusively on the “expert” report of Sherryll Kraizer in
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`opposition to the District’s motion for summary judgment and in support of his own cross
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`motion for summary judgment. (Plaintiff’s Opp., generally; Costanzo Aff., ¶¶ 22-32, 43,
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`45). However, Dr. Kraizer’s “expert” report is inadmissible, speculative, conclusory, and
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`must be disregarded.
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`It is well settled that an unsworn expert report is inadmissible and
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`insufficient to raise a triable issue of fact when offered in opposition to a motion for
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`summary judgment. Austin v. CDGA Nat. Bank. Tr., 114 A.D.3d 1298, 1300 (4th Dept.
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`2014); Ulm I Holding Corp. v. Antell, 155 A.D.3d 585, 586 (1st Dept. 2017) (“the unsworn
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`report is not in admissible form and may not be considered in opposition to the motion for
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`summary judgment.”); Fallon v. Duffy, 95 A.D.3d 1416, 1417 (3d Dept. 2012) (expert
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`report “did not constitute admissible evidence, as it was not affirmed or sworn to”);
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`Similarly, an unsworn expert report attached to the affirmation of an attorney in support
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`of a motion is not “evidentiary material in admissible form and [is] without probative value.”
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`Menzel v. Plotnick, 202 A.D.2d 558, 559 (2d Dept. 1994); Frees v. Frank & Walter
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`Eberhart L.P. No. 1, 71 A.D.3d 491, 492 (1st Dept. 2010) (unsworn report was not made
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`in the regular course of business “and thus was inadmissible and could not be considered
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`in support of the motion.”).
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`Plaintiff submits the “expert” report of Sherryll Kraizer as an exhibit to
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`Plaintiff’s attorney affirmation. (Costanzo Aff., Ex. I). Dr. Kraizer did not submit an affidavit
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`or otherwise swear to or affirm her report. (Id.). Dr. Kraizer’s report is clearly inadmissible
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`and is therefore without probative value and cannot be considered in support of Plaintiff’s
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`cross-motion. Menzel, 202 A.D.2d at 559; Frees, 71 A.D.3d at 492. Similarly, Dr. Kraizer’s
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`report does not raise a triable issue of fact in opposition to District’s motion for summary
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`judgment. Austin, 114 A.D.3d at 1300; Ulm I Holding Corp., 155 A.D.3d at 586.
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`Accordingly, Dr. Kraizer’s report must be disregarded in its entirety.
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`Irrespective of admissibility issues, Dr. Kraizer’s report should be
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`disregarded because it is speculative, conclusory, and inherently flawed.1 “[I]t is axiomatic
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`that an expert’s affidavit proffered in opposition to a motion for summary judgment must
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`contain more than mere conclusory assertions.” Phillips v. McClellan Street Associates,
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`262 A.D.2d 748, 749 (3d Dept. 1999). Where an expert’s “ultimate assertions are
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`speculative or unsupported by any evidentiary foundation, however, the opinion should
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`be given no probative force and is insufficient to withstand summary judgment.” Diaz v.
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`New York Downtown Hosp., 99 N.Y.2d 542, 544 (2002); Salas v. Adirondack Transit
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`Lines, 172 A.D.3d 775, 776 (2d Dept. 2019) (“an expert’s affidavit in opposition to a motion
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`for summary judgment must contain more than mere conclusory assertions.”).
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`A purported expert’s affidavit is properly disregarded where the affidavit “is
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`without any semblance of a foundation to support his opinion or the existence of common
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`knowledge and practice within the [subject] industry.” Phillips, 262 A.D.2d at 749. An
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`expert’s affidavit that “fail[s] to set forth any foundation to support the conclusion that an
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`industry standard or practice existed,” does not raise a triable issue of fact. Salas, 172
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`A.D.3d at 776; Phillips, 262 A.D.2d at 749 (an affidavit that “contains no more than
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`conclusory opinions with respect to a deviation from an alleged industry wide practice”
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`does not create an issue of fact); Mauro v. Rosedale Enterprises, 60 A.D.3d 401, 401 (1st
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`Dept. 2009) (the expert affidavit “fails to raise a triable issue of fact, instead citing various
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`broad or inapt engineering rules, regulations and standards.”).
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`1 The opinions offered by Dr. Kraizer have been disregarded as speculative and conclusory in at
`least one other CVA case. See T.S. v. Holland Central School Dist., Erie County Supreme
`Court, Hon. D. Chimes, J.S.C., Index No. 808449/2020 (May 1, 2023) (Hayes Reply Aff., Ex. A).
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`Dr. Kraizer purports to opine on the standard of care for the prevention of
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`sexual abuse by educators in schools. (Costanzo Aff., Ex. I). However, Dr. Kraizer’s report
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`is baseless and makes impermissible legal conclusions. Dr. Kraizer’s opinions are based
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`on legislation and research which are unrelated to the sexual abuse of children in an
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`educational setting. (see Costanzo Aff., Ex. I, generally). Dr. Kraizer opines, without citing
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`any source, that teachers and administrators in the 1970s were “expected to recognize
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`inappropriate behavior, what constituted child sexual abuse, how children ask for help,
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`and the duty of all employees to report suspected abuse.” (Id., p. 6). Dr. Kraizer does not
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`explain what “inappropriate behavior” teachers were expected to recognize, how, or why
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`they were expected to recognize it. (Id., p. 6).
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` Dr. Kraizer also states that sexual misconduct by staff was a foreseeable
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`risk in the 1980s. (Id., p. 8