`FILED: ORLEANS COUNTY CLERK 11/21/2023 10:55 AMFILED: ORLEANS COUNTY CLERK 12/01/2023 10:55 AM
`FILED: ORLEANS COUNTY CLERK 12/01/2023 10:55 AM
`
`NYSCEF DOC. NO. 148NYSCEF DOC. NO. 156
`NYSCEF DOC. NO. 158
`
`INDEX NO. 20-46602INDEX NO. 20-46602
`
`INDEX NO. 20-46602
`
`RECEIVED NYSCEF: 11/21/2023RECEIVED NYSCEF: 12/01/2023
`RECEIVED NYSCEF: 12/81/2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`
`
`

`

`
`
`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PMFILED: ORLEANS COUNTY CLERK 11/21/2023 10:55 AMFILED: ORLEANS COUNTY CLERK 12/01/2023 10:55 AM
`
`
`NYSCEF DOC. NO. 145NYSCEF DOC. NO. 148NYSCEF DOC. NO. 156
`
`
`
`
`
`INDEX NO. 20-46602INDEX NO. 20-46602INDEX NO. 20-46602
`
`
`
`
`
`RECEIVED NYSCEF: 11/15/2023RECEIVED NYSCEF: 11/21/2023RECEIVED NYSCEF: 12/01/2023
`
`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
`_______________________________________________
`
`AB 511 DOE,
`
`
`
`v.
`
`LYNDONVILLE CENTRAL SCHOOL DISTRICT,
`LYNDONVILLE ELEMENTARY SCHOOL,
`
`Defendants.
`
`
`
`
`_______________________________________________
`
`
`
`
`
`
`
`
`
`
`
`
`DECISION
`Index No. 20-46602
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`Defendants, Lyndonville Central School District and Lyndonville Elementary School,
`
`(hereafter collectively Lyndonville), moved for summary judgement pursuant to CPLR 3212,
`
`requesting dismissal of the Amended Complaint, (NYSCEF motion 004). Plaintiff cross-moved
`
`for summary judgement (NYSCEF motion 005). Both motions were opposed.
`
`
`
`Plaintiff filed this action pursuant to the Child Victims Act (CPLR 214-g). Plaintiff
`
`alleges that between 1986 and 1987, when he was a fifth-grade student attending Lyndonville
`
`Elementary School, he was abused by his fifth-grade teacher, Terry Houseman, (hereafter,
`
`Houseman). The abuse first occurred at Houseman's residence and all abuse thereafter at the
`
`school in Houseman's classroom. Plaintiff alleges the abuse at the school occurred before class,
`
`during class and after school. Plaintiff also alleges that Houseman pulled plaintiff out of other
`
`classes and recess to abuse him and that a custodian allowed only plaintiff into school in the
`
`morning before classes, while all other students waited outside. During these times plaintiff
`
`alleges he was abused by Houseman. Plaintiff further alleges that another fifth-grade teacher,
`
`Ruth Bane, walked into Houseman's classroom while Houseman was abusing plaintiff.
`
`

`

`
`
`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PMFILED: ORLEANS COUNTY CLERK 11/21/2023 10:55 AMFILED: ORLEANS COUNTY CLERK 12/01/2023 10:55 AM
`
`
`NYSCEF DOC. NO. 145NYSCEF DOC. NO. 148NYSCEF DOC. NO. 156
`
`
`
`
`
`INDEX NO. 20-46602INDEX NO. 20-46602INDEX NO. 20-46602
`
`
`
`
`
`RECEIVED NYSCEF: 11/15/2023RECEIVED NYSCEF: 11/21/2023RECEIVED NYSCEF: 12/01/2023
`
`
`
`
`
`The following causes of action are asserted in the Amended Complaint: negligence –
`
`failure to protect plaintiff from harm; negligent hiring; negligent training and supervision of
`
`Houseman and other Lyndonville employees; negligent retention; and breach of statutory duty to
`
`report.
`
`
`
`To succeed on a CPLR 3212 motion, "it is necessary that the movant establish his cause
`
`of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in
`
`his favor, and he must do so by tender of evidentiary proof in admissible form. On the other
`
`hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to
`
`require a trial of any issue of fact'" (Zuckerman v New York, 49 N.Y.2d 557, 562 [1980] citing to
`
`CPLR 3212(b)). "[F]acts must be viewed in the light most favorable to the non-moving party"
`
`(Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] citations omitted).
`
`
`
`As to the first cause of action for failure to protect plaintiff, the plaintiff raised a question
`
`of fact. It is well established that a school owes a duty to adequately supervise its students. “[A]
`
`teacher owes it to his [or her] charges to exercise such care of them as a parent of ordinary
`
`prudence would observe in comparable circumstances.” (Mirand v City of New York, 84 N.Y. 2d
`
`44, 49 [1994] internal citation omitted). Here, plaintiff submitted evidence that the fifth-grade
`
`teacher, Ruth Bane, walked into Houseman's classroom while Houseman was abusing plaintiff
`
`and claims the teacher saw the abuse as it was occurring. In addition, there is testimony that
`
`Houseman pulled plaintiff out of other classes and at recess, and that a custodian allowed
`
`plaintiff into school in the morning before classes while all other students waited outside. Taking
`
`the evidence in the light most favorable to the plaintiff, the plaintiff raised a triable issue of fact
`
`on the issue of notice and whether the defendant failed to adequately supervise the plaintiff.
`
`
`
`2
`
`

`

`
`
`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PMFILED: ORLEANS COUNTY CLERK 11/21/2023 10:55 AMFILED: ORLEANS COUNTY CLERK 12/01/2023 10:55 AM
`
`
`NYSCEF DOC. NO. 145NYSCEF DOC. NO. 148NYSCEF DOC. NO. 156
`
`
`
`
`
`INDEX NO. 20-46602INDEX NO. 20-46602INDEX NO. 20-46602
`
`
`
`
`
`RECEIVED NYSCEF: 11/15/2023RECEIVED NYSCEF: 11/21/2023RECEIVED NYSCEF: 12/01/2023
`
`
`
`(See, Doe v Whitney, 8 AD3d 610 [2nd Dept. 2002]). Lyndonville’s motion to dismiss the first
`
`cause of action is therefore denied.
`
`
`
`The second cause of action is for negligent hiring. "A necessary element of a cause of
`
`action alleging negligent hiring "is that the employer knew or should have known of the
`
`employee's propensity for the conduct which caused the injury" (Doe v Whitney at 612).
`
`Relying on Doe v. New York City Dep’t of Educ., 126 A.D.3d 612 [2d Dept. 2015], Lyndonville
`
`argues that it did not and could not have known of Houseman's dangerous propensities. In
`
`support of the motion, Lyndonville submitted Houseman's employment application and teaching
`
`certificate and pointed out that Houseman had no prior criminal history. As such, Lyndonville
`
`met their burden on the issue. In opposition, plaintiff failed to create a question of fact.
`
`Lyndonville's motion to dismiss the second cause of action for negligent hiring is granted.
`
`
`
`With respect to the claims for negligent supervision and retention of Houseman, an
`
`essential element is that Lyndonville knew or should have known of Houseman's propensity to
`
`sexually abuse children. (Dolgas v. Wales, 215 A.D.3d 51, 55 [3rd Dept. 2023]). When the
`
`evidence as previously noted is taken in the light most favorable to the plaintiff a question of fact
`
`is raised as to whether Lyndonville knew or should have known of the alleged propensity of
`
`Houseman.
`
`
`
`As to the allegations that Lyndonville employees were improperly trained Lyndonville
`
`submitted evidence in the form of deposition testimony of employees that worked during the
`
`period of time plaintiff was abused. Those employees testified that if they knew or suspected
`
`that a child was being abused, they would report it to their supervisor. As such, Lyndonville met
`
`
`
`3
`
`

`

`
`
`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PMFILED: ORLEANS COUNTY CLERK 11/21/2023 10:55 AMFILED: ORLEANS COUNTY CLERK 12/01/2023 10:55 AM
`
`
`NYSCEF DOC. NO. 145NYSCEF DOC. NO. 148NYSCEF DOC. NO. 156
`
`
`
`
`
`INDEX NO. 20-46602INDEX NO. 20-46602INDEX NO. 20-46602
`
`
`
`
`
`RECEIVED NYSCEF: 11/15/2023RECEIVED NYSCEF: 11/21/2023RECEIVED NYSCEF: 12/01/2023
`
`
`
`their burden on the issue of training. Plaintiff failed to establish the employees were negligently
`
`trained and/or supervised. Plaintiff's cross-motion for summary judgment on the issue is denied
`
`and Lyndonville’s motion to dismiss the failing to train aspect of the third cause of action is
`
`granted.
`
`
`
`The fifth is for breach of the statutory duty to report pursuant to Social Services Law §
`
`413. In Matter of Yolanda D., 88 N.Y.2d 790 [1996], it was held that though the determination
`
`of whether a particular person has acted as the functional equivalent of a parent is a fact intensive
`
`inquiry which will vary according to the particular circumstances of each case, "article 10 should
`
`not be construed to include persons who assume fleeting or temporary care of a child such as a
`
`supervisor of a play-date or an overnight visitor or those persons who provide extended daily
`
`care of children in institutional settings, such as teachers" (emphasis added). More recently,
`
`the Second Department decided Hanson v. Hicksville Union Free Sch. Dist., 209 A.D.3d 629
`
`[2nd Dept. 2022]. In that case, plaintiff brought a claim pursuant to CPLR 214-g alleging she
`
`was sexually abused by her guidance counselor while in junior high school. The Second
`
`Department reversed the decision of the lower court and dismissed the cause of action asserted
`
`under Social Services Law on the grounds that the law required reporting when the abuse is
`
`committed by a person legally responsible for the child's care as defined by the Family Court Act
`
`and that a guidance counselor was not such person.
`
` Here, there was no evidence submitted to support a finding that the teacher here was
`
`acting as a functional equivalent of a parent. Lyndonville's motion to dismiss the fifth cause of
`
`action is therefore granted.
`
`
`
`4
`
`

`

`
`
`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PMFILED: ORLEANS COUNTY CLERK 11/21/2023 10:55 AMFILED: ORLEANS COUNTY CLERK 12/01/2023 10:55 AM
`
`
`NYSCEF DOC. NO. 145NYSCEF DOC. NO. 148NYSCEF DOC. NO. 156
`
`
`
`
`
`INDEX NO. 20-46602INDEX NO. 20-46602INDEX NO. 20-46602
`
`
`
`
`
`RECEIVED NYSCEF: 11/15/2023RECEIVED NYSCEF: 11/21/2023RECEIVED NYSCEF: 12/01/2023
`
`Lyndonville also moved to dismiss the allegations related to off premises abuse. Plaintiff
`
`testified that the first time that Houseman abused him was off school premises when plaintiff
`
`slept over at Houseman's residence. At the time of that particular abuse, Lyndonville did not
`
`have custody of control over plaintiff and no duty monitor Houseman's conduct. (See, Tanaysha
`
`T. v City of New York, 130 A.D.3d 916, 917 [2nd Dept 2015]). Moreover, no off-premises abuse
`
`occurred after Houseman allegedly began to abuse plaintiff on school premises. Lyndonville's
`
`motion to dismiss allegations related to off premises abuse prior to the abuse alleged at the
`
`school is granted.
`
`Lyndonville also argues that Lyndonville Elementary School is not an entity capable of
`
`being sued, citing to Guerriero v. Sewanhaka Cent. High Sch. Dist., 150 A.D.3d 831, 832 [2nd
`
`Dept 2017] stating "The Supreme Court should have granted that branch of the defendants'
`
`motion which was for summary judgment dismissing the complaint insofar as asserted against
`
`the School, as the School is not a legal entity capable of being sued"). Plaintiff failed to create a
`
`legal question or a question of fact on the issue. Lyndonville's motion to dismiss the Amended
`
`Complaint against Lyndonville Elementary School is granted and plaintiff's cross-motion denied.
`
`As for plaintiff’s argument the defendant may be liable for the reasonably foreseeable
`
`consequence of its actions, plaintiff relies on the expert report of Sherryll Kraizer. This report
`
`however is not in admissible form and therefore not considered by the Court. Moreover, even if
`
`the Court were to accept the unsworn report, the opinions expressed are unsupported by data or
`
`resource. Additionally, defendant’s submission of its expert report raises questions of fact. As
`
`such plaintiff’s cross-motion on this theory of liability is denied.
`
`
`
`5
`
`

`

`
`
`FILED: ORLEANS COUNTY CLERK 11/15/2023 04:45 PMFILED: ORLEANS COUNTY CLERK 11/21/2023 10:55 AMFILED: ORLEANS COUNTY CLERK 12/01/2023 10:55 AM
`
`
`NYSCEF DOC. NO. 145NYSCEF DOC. NO. 148NYSCEF DOC. NO. 156
`
`
`
`
`
`INDEX NO. 20-46602INDEX NO. 20-46602INDEX NO. 20-46602
`
`
`
`
`
`RECEIVED NYSCEF: 11/15/2023RECEIVED NYSCEF: 11/21/2023RECEIVED NYSCEF: 12/01/2023
`
`Counsel for Lyndonville is to prepare an Order encompassing both motions and submit it
`
`on approval of counsel for plaintiff. The Order shall attach the Court's Decision and be
`
`submitted in 30 days.
`
`
`DATED: November 13, 2023
`
` Buffalo, New York
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`_____________________________
`Hon. Deborah A. Chimes, J.S.C.
`
`
`
`
`6
`
`