`NYSCEF DOC. NO. 145
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 11/15/2023
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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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`Defendants.
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`_______________________________________________
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`DECISION
`Index No. 20-46602
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`Plaintiff,
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`Defendants, Lyndonville Central School District and Lyndonville Elementary School,
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`(hereafter collectively Lyndonville), moved for summary judgement pursuant to CPLR 3212,
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`requesting dismissal of the Amended Complaint, (NYSCEF motion 004). Plaintiff cross-moved
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`for summary judgement (NYSCEF motion 005). Both motions were opposed.
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`Plaintiff filed this action pursuant to the Child Victims Act (CPLR 214-g). Plaintiff
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`alleges that between 1986 and 1987, when he was a fifth-grade student attending Lyndonville
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`Elementary School, he was abused by his fifth-grade teacher, Terry Houseman, (hereafter,
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`Houseman). The abuse first occurred at Houseman's residence and all abuse thereafter at the
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`school in Houseman's classroom. Plaintiff alleges the abuse at the school occurred before class,
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`during class and after school. Plaintiff also alleges that Houseman pulled plaintiff out of other
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`classes and recess to abuse him and that a custodian allowed only plaintiff into school in the
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`morning before classes, while all other students waited outside. During these times plaintiff
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`alleges he was abused by Houseman. Plaintiff further alleges that another fifth-grade teacher,
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`Ruth Bane, walked into Houseman's classroom while Houseman was abusing plaintiff.
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PM
`NYSCEF DOC. NO. 145
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 11/15/2023
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`The following causes of action are asserted in the Amended Complaint: negligence –
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`failure to protect plaintiff from harm; negligent hiring; negligent training and supervision of
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`Houseman and other Lyndonville employees; negligent retention; and breach of statutory duty to
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`report.
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`To succeed on a CPLR 3212 motion, "it is necessary that the movant establish his cause
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`of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in
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`his favor, and he must do so by tender of evidentiary proof in admissible form. On the other
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`hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to
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`require a trial of any issue of fact'" (Zuckerman v New York, 49 N.Y.2d 557, 562 [1980] citing to
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`CPLR 3212(b)). "[F]acts must be viewed in the light most favorable to the non-moving party"
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`(Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] citations omitted).
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`As to the first cause of action for failure to protect plaintiff, the plaintiff raised a question
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`of fact. It is well established that a school owes a duty to adequately supervise its students. “[A]
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`teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary
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`prudence would observe in comparable circumstances.” (Mirand v City of New York, 84 N.Y. 2d
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`44, 49 [1994] internal citation omitted). Here, plaintiff submitted evidence that the fifth-grade
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`teacher, Ruth Bane, walked into Houseman's classroom while Houseman was abusing plaintiff
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`and claims the teacher saw the abuse as it was occurring. In addition, there is testimony that
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`Houseman pulled plaintiff out of other classes and at recess, and that a custodian allowed
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`plaintiff into school in the morning before classes while all other students waited outside. Taking
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`the evidence in the light most favorable to the plaintiff, the plaintiff raised a triable issue of fact
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`on the issue of notice and whether the defendant failed to adequately supervise the plaintiff.
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`2
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PM
`NYSCEF DOC. NO. 145
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 11/15/2023
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`(See, Doe v Whitney, 8 AD3d 610 [2nd Dept. 2002]). Lyndonville’s motion to dismiss the first
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`cause of action is therefore denied.
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`The second cause of action is for negligent hiring. "A necessary element of a cause of
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`action alleging negligent hiring "is that the employer knew or should have known of the
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`employee's propensity for the conduct which caused the injury" (Doe v Whitney at 612).
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`Relying on Doe v. New York City Dep’t of Educ., 126 A.D.3d 612 [2d Dept. 2015], Lyndonville
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`argues that it did not and could not have known of Houseman's dangerous propensities. In
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`support of the motion, Lyndonville submitted Houseman's employment application and teaching
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`certificate and pointed out that Houseman had no prior criminal history. As such, Lyndonville
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`met their burden on the issue. In opposition, plaintiff failed to create a question of fact.
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`Lyndonville's motion to dismiss the second cause of action for negligent hiring is granted.
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`With respect to the claims for negligent supervision and retention of Houseman, an
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`essential element is that Lyndonville knew or should have known of Houseman's propensity to
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`sexually abuse children. (Dolgas v. Wales, 215 A.D.3d 51, 55 [3rd Dept. 2023]). When the
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`evidence as previously noted is taken in the light most favorable to the plaintiff a question of fact
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`is raised as to whether Lyndonville knew or should have known of the alleged propensity of
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`Houseman.
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`As to the allegations that Lyndonville employees were improperly trained Lyndonville
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`submitted evidence in the form of deposition testimony of employees that worked during the
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`period of time plaintiff was abused. Those employees testified that if they knew or suspected
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`that a child was being abused, they would report it to their supervisor. As such, Lyndonville met
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`3
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PM
`NYSCEF DOC. NO. 145
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 11/15/2023
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`their burden on the issue of training. Plaintiff failed to establish the employees were negligently
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`trained and/or supervised. Plaintiff's cross-motion for summary judgment on the issue is denied
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`and Lyndonville’s motion to dismiss the failing to train aspect of the third cause of action is
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`granted.
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`The fifth is for breach of the statutory duty to report pursuant to Social Services Law §
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`413. In Matter of Yolanda D., 88 N.Y.2d 790 [1996], it was held that though the determination
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`of whether a particular person has acted as the functional equivalent of a parent is a fact intensive
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`inquiry which will vary according to the particular circumstances of each case, "article 10 should
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`not be construed to include persons who assume fleeting or temporary care of a child such as a
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`supervisor of a play-date or an overnight visitor or those persons who provide extended daily
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`care of children in institutional settings, such as teachers" (emphasis added). More recently,
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`the Second Department decided Hanson v. Hicksville Union Free Sch. Dist., 209 A.D.3d 629
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`[2nd Dept. 2022]. In that case, plaintiff brought a claim pursuant to CPLR 214-g alleging she
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`was sexually abused by her guidance counselor while in junior high school. The Second
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`Department reversed the decision of the lower court and dismissed the cause of action asserted
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`under Social Services Law on the grounds that the law required reporting when the abuse is
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`committed by a person legally responsible for the child's care as defined by the Family Court Act
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`and that a guidance counselor was not such person.
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` Here, there was no evidence submitted to support a finding that the teacher here was
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`acting as a functional equivalent of a parent. Lyndonville's motion to dismiss the fifth cause of
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`action is therefore granted.
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`4
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PM
`NYSCEF DOC. NO. 145
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 11/15/2023
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`Lyndonville also moved to dismiss the allegations related to off premises abuse. Plaintiff
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`testified that the first time that Houseman abused him was off school premises when plaintiff
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`slept over at Houseman's residence. At the time of that particular abuse, Lyndonville did not
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`have custody of control over plaintiff and no duty monitor Houseman's conduct. (See, Tanaysha
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`T. v City of New York, 130 A.D.3d 916, 917 [2nd Dept 2015]). Moreover, no off-premises abuse
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`occurred after Houseman allegedly began to abuse plaintiff on school premises. Lyndonville's
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`motion to dismiss allegations related to off premises abuse prior to the abuse alleged at the
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`school is granted.
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`Lyndonville also argues that Lyndonville Elementary School is not an entity capable of
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`being sued, citing to Guerriero v. Sewanhaka Cent. High Sch. Dist., 150 A.D.3d 831, 832 [2nd
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`Dept 2017] stating "The Supreme Court should have granted that branch of the defendants'
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`motion which was for summary judgment dismissing the complaint insofar as asserted against
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`the School, as the School is not a legal entity capable of being sued"). Plaintiff failed to create a
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`legal question or a question of fact on the issue. Lyndonville's motion to dismiss the Amended
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`Complaint against Lyndonville Elementary School is granted and plaintiff's cross-motion denied.
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`As for plaintiff’s argument the defendant may be liable for the reasonably foreseeable
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`consequence of its actions, plaintiff relies on the expert report of Sherryll Kraizer. This report
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`however is not in admissible form and therefore not considered by the Court. Moreover, even if
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`the Court were to accept the unsworn report, the opinions expressed are unsupported by data or
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`resource. Additionally, defendant’s submission of its expert report raises questions of fact. As
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`such plaintiff’s cross-motion on this theory of liability is denied.
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`5
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`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PM
`NYSCEF DOC. NO. 145
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 11/15/2023
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`Counsel for Lyndonville is to prepare an Order encompassing both motions and submit it
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`on approval of counsel for plaintiff. The Order shall attach the Court's Decision and be
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`submitted in 30 days.
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`DATED: November 13, 2023
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` Buffalo, New York
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`_____________________________
`Hon. Deborah A. Chimes, J.S.C.
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