FILED: ORLEANS COUNTY CLERK 02/22/2024 02:47 PM
`NYSCEF DOC. NO. 282
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
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`Index No.: 20-46602
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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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`Plaintiff,
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`Defendants.
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`DEFENDANTS’ REPLY MEMORANDUM OF LAW
`IN FURTHER SUPPORT OF ITS MOTIONS IN LIMINE
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`WEBSTER SZANYI LLP
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`Attorneys for Defendants
`Ryan G. Smith
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`Shannon B. Vandermeer
`Meghan M. Hayes
`424 Main Street, Suite 1400
`Buffalo, New York 14202
`(716) 842-2800
`rsmith@websterszanyi.com
`svandermeer@websterszanyi.com
`mhayes@websterszanyi.com
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 02:47 PM
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`TABLE OF CONTENTS
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`Page
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`TABLE OF AUTHORITIES ............................................................................................... ii
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`PRELIMINARY STATEMENT .......................................................................................... 1
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`STATEMENT OF FACTS ................................................................................................. 1
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`ARGUMENT .................................................................................................................... 1
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`I. Allegations or Evidence That Houseman Sexually Abused Other Students
`Should Be Precluded ...................................................................................... 1
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`II. Allegations That Other District Employees Engaged in Sexually Inappropriate
`Conduct with Other Students Should Be Precluded ........................................ 4
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`III. Houseman Must Be Added To The Verdict Sheet For Apportionment of
`Liability ............................................................................................................ 6
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`CONCLUSION ...............................................................................................................11
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`Cases
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`TABLE OF AUTHORITIES
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`Cherry v. Decker,
`280 A.D.2d 867 (3d Dept. 2001) ................................................................................ 10
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`Coleman v. New York City Transit Authority,
`37 N.Y.2d 137 (1975) ................................................................................................... 5
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`Estate of Moran,
`145 N.Y.S.2d 241 (N.Y. Co. Sur. Ct. 1955) ................................................................... 9
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`Fleury v. Edwards,
`14 N.Y.2d 334 (1964) .................................................................................................. 3
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`Gaston v. East Ramapo Cent. Sch. Dist.,
`165 A.D.3d 761 (2d Dept. 2018) .................................................................................. 2
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`
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`In re Estate of D’Angelo,
`12 Misc.3d 1187(A) WL 2089217 (N.Y. Sur. Ct. 2006) ................................................. 9
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`J.B. v. Monroe-Woodbury Central School Dist.,
`2024 WL 592330 (2d Dept. 2024) ................................................................................ 5
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`M.C. v. City of New York,
`173 A.D.3d 728 (2d Dept. 2019) .................................................................................. 2
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`
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`Matter of Seward,
`118 A.D.3d 1312 (4th Dept. 2014) ............................................................................... 9
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`Melfe v. Roman Catholic Diocese of Albany,
`196 A.D.3d 811 (3d Dept. 2021) .................................................................................. 4
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`Mullen v. Wishner,
`178 A.D.3d 830 (2d Dept. 2019) .............................................................................. 1, 2
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`Norton v. Port Authority of N.Y. & N.J.,
`94 A.D.3d 677 (1st Dept. 2012) ................................................................................... 6
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`People v. Delancy,
`254 A.D.2d 815 (4th Dept. 1998) ................................................................................. 3
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`People v. Jarrells,
`190 A.D.2d 120, (1st Dept. 1993) ................................................................................ 3
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`Singh v. Arbor Prop. Trust,
`12 A.D.3d 660 (2d Dept. 2004) .................................................................................... 6
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`Spath v. Storybook Child Care, Inc.,
`137 A.D.3d 1736 (4th Dept. 2016) ............................................................................... 2
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`Van Giessen v. Bridgford,
`83 N.Y. 348 (1881) ....................................................................................................... 9
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`Statutes
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`CPLR § 1602 ................................................................................................................... 7
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`CPLR § 4517 ................................................................................................................... 4
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`CPLR § 4514 ................................................................................................................... 3
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`EPTL § 1-2.15 ............................................................................................................... 10
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`SCP § 1001 ..................................................................................................................... 8
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`SCP § 201 ................................................................................................................. 8, 10
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`SCP § 307 ....................................................................................................................... 8
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`SCP § 702 ....................................................................................................................... 8
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`PRELIMINARY STATEMENT
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`This reply memorandum of law is submitted on behalf of Defendant1
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`Lyndonville Central School District (“the District”) in further support of its motions in limine
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`to preclude various evidence, testimony and/or other references at trial, and to add the
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`alleged abuser, Terry Houseman (“Houseman”), to the verdict sheet.
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`STATEMENT OF FACTS
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`The specific facts material to this motion are set forth in the Affirmation of
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`Ryan G. Smith dated February 9, 2024 (with exhibits) and Reply Affirmation of Ryan G.
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`Smith dated February 22, 2024 (with exhibit) and are incorporated herein by reference.
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`ARGUMENT
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`Point I
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`Allegations or Evidence That Houseman Sexually Abused Other Students
`Should Be Precluded
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`In opposition to this motion, Plaintiff cites no authority holding that
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`unreported allegations of abuse by an employee are admissible against an employer in
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`this context.
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`For example, the Mullen v. Wishner decision involved a motion to sever a
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`claim against the individual physician from the remaining claims against his employer.
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`See 178 A.D.3d 830 (2d Dept. 2019). It did not involve a motion to admit or preclude
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`certain evidence at trial. And despite any suggestion to the contrary, nowhere in that
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`decision does the Appellate Division rule that evidence of prior abuse was admissible. In
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`fact, the Court acknowledged that,
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`1 All claims against Defendant Lyndonville Elementary School were dismissed per this
`Court’s Order granted November 29, 2023. See Smith Aff., ¶ 42 (Dkt. 157-158).
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`[i]n general, it is improper to prove that a person did an act on
`a particular occasion by showing that he [or she] did a similar
`act on a different, unrelated occasion…. Thus, generally,
`evidence of prior unrelated bad acts of negligent treatment of
`other patients, even if relevant, constitutes impermissible
`propensity evidence that lacks probative value and has the
`potential to induce the jury to decide the case based on
`evidence of [a] defendant's character.
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`Id. at 831-832 (citations and internal quotation marks omitted).
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`In M.C. v. City of New York, the court found that “reports of prior incidents
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`may be material and necessary to whether school officials had actual or constructive
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`notice of conduct similar to the subject incident.” 173 A.D.3d 728 (2d Dept. 2019)
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`(emphasis added). Nowhere in that decision does it state that unreported incidents are
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`admissible against an employer to establish actual or constructive notice.
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`In Gaston v. East Ramapo Cent. Sch. Dist., the court found that the school
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`district failed to eliminate triable issues of fact on summary judgment “as to whether it had
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`knowledge of the offending student’s dangerous propensities based on his involvement
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`in other assaultive altercations with fellow students in the recent past.” 165 A.D.3d 761,
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`763 (2d Dept. 2018). Nowhere in that decision is there any indication or suggestion that
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`the court was referring to unreported or unknown altercations. And it would be fair to
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`presume that the school district was aware of the prior physical altercations between its
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`students that were at issue.
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`In Spath v. Storybook Child Care, Inc., the infant plaintiff sustained a head
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`injury at the defendant daycare and there were no eye witnesses to the injury-causing
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`event, including the infant plaintiff. See 137 A.D.3d 1736, 1737 (4th Dept. 2016). In a
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`bifurcated bench trial on liability, the court rejected the defendants’ argument that it was
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`error to admit evidence that the employee had been involved in two other incidents
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`involving children under his care at the daycare center. See 137 A.D.3d 1736, 1738 (4th
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`Dept. 2016). Again, nowhere in that decision is there any indication or suggestion that
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`the court was referring to unreported or unknown prior incidents.
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`There is simply no authority for the proposition that evidence of unreported
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`or unknown prior incidents of child sex abuse should be admissible here. And Plaintiff’s
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`reliance on an alleged decision from Judge Furlong – which was apparently never
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`memorialized in a written decision, order or transcript – must be rejected.
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`To the extent Plaintiff’s opposition on this point argues that such evidence
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`is relevant for the purposes of impeaching former District employees, this must be
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`rejected. Plaintiff cannot impeach former District employees based on testimony that
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`Houseman provided at his criminal trial. It is well-established that the credibility of a trial
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`witness cannot be impeached based on testimony of a non-testifying individual. See
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`People v. Delancy, 254 A.D.2d 815 (4th Dept. 1998); People v. Jarrells, 190 A.D.2d 120,
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`125-126 (1st Dept. 1993). This is particularly true where the party against whom the
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`statement is being used did not have an opportunity to cross-examine the witness at the
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`prior proceeding, which is precisely the case here. See Fleury v. Edwards, 14 N.Y.2d
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`334, 339 (1964).
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`Consistent therewith, impeachment based on prior inconsistent statements
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`must be based on the witness’s own statement, not the statement of another witness in
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`an entirely separate proceeding. See CPLR Rule 4514 (“…any party may introduce proof
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`that any witness has made a prior statement inconsistent with his testimony if the
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`statement was made in a writing subscribed by him or was made under oath”); CPLR
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`4517 (“…testimony of a witness that was taken at a prior trial in the same action or at a
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`prior trial involving the same parties or their representatives and arising from the same
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`subject matter” may be used “for the purpose of contradicting or impeaching the testimony
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`of the same witness.” (Emphasis added).).
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`Houseman has been deceased for years – he was never deposed in this
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`case and will not be testifying at trial. His criminal prosecution is inherently different than
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`the case at hand, and the District was obviously not a party to that proceeding.
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`Accordingly, his testimony cannot be used to impeach former District employees.
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`Point II
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`Allegations That Other District Employees Engaged in Sexually Inappropriate
`Conduct with Other Students Should Be Precluded
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`Whether other employees were supposedly accused of having any sexually
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`inappropriate contact with students has absolutely no relevance to the issues at hand,
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`and Plaintiff cites no authority to the contrary.
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`For example, Plaintiff’s reliance on Melfe v. Roman Catholic Diocese of
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`Albany, 196 A.D.3d 811 (3d Dept. 2021) is misplaced. For one, that decision involved a
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`motion to compel evidence regarding the handling of other abuse allegations, as opposed
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`to any determination regarding the admissibility of that information at trial. In addition, the
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`Melfe decision acknowledges that “New York courts have long resisted allowing evidence
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`of specific acts of carelessness or carefulness to create an inference that such conduct
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`was repeated when like circumstances were again presented,” and that only where there
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`is “proof of a deliberate and repetitive practice” may a party introduce evidence of habit
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`to allow an inference of negligence. Id. at 813 (citations and internal quotation marks
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`omitted). Furthermore, the plaintiffs in that case alleged that the diocese had knowledge
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`of abuse by multiple priests and permitted both to remain at the diocese. See id. at 814.
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`Plaintiff’s reliance on J.B. v. Monroe-Woodbury Central School Dist., 2024
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`WL 592330 (2d Dept. 2024) is also misplaced. In that case, there was a school district
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`policy that specifically prohibited children from being alone behind closed doors with a
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`physician during medical examinations, and the plaintiff in that case alleged that she was
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`sexually abused by the physician during a medical examination at the school, in direct
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`violation of that policy. Nothing of the sort is present in the case at hand.
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`In his opposition, Plaintiff appears to argue that these other incidents
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`involving other employees are supposedly relevant for the purposes of cross-examining
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`former District employees as “interested witnesses.” This must be rejected as well.
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`Despite Plaintiff’s argument to the contrary, none of the former District
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`employees who testified can fairly be characterized as “interested witnesses.” See
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`Costanzo Aff. (Dkt. 243), ¶ 18. The fact that they were previously employed by the District
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`decades ago is not in and of itself sufficient to deem them “interested witnesses.”
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`Furthermore, they are not parties to this action, they were subpoenaed as nonparty
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`witnesses for depositions, they have no personal stake in the outcome, and there is no
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`evidence that they receive any income whatsoever from the District in retirement
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`(presumably, they receive a pension from the New York State retirement system, not the
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`District), let alone that such income could be affected in any way by the outcome of this
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`case.
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`In Coleman v. New York City Transit Authority, the Court of Appeals
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`acknowledged that the mere existence of a current or former employer-employee
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`relationship between a party and witness does not make the employee an interested
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`witness. See 37 N.Y.2d 137, 142 (1975). To the extent Plaintiff relies upon case law
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`where an employee or former employee was an active participant in the underlying
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`accident, that is simply inapplicable here. Furthermore, a trial court’s decision to decline
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`to charge a former employee as an interested witness has been upheld where there is no
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`evidence of bias or that the individual had personal interest in the outcome of the matter,
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`as is the case here. See Norton v. Port Authority of N.Y. & N.J., 94 A.D.3d 677, 677 (1st
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`Dept. 2012) (“The trial court did not err in declining to charge defendant’s former
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`employee as an interested witness in the absence of any evidence that his testimony was
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`biased or that he was personally interested in the outcome of the matter.”); Singh v. Arbor
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`Prop. Trust, 12 A.D.3d 660, 661 (2d Dept. 2004) (“The court properly declined to give an
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`interested witness charge with regard to certain managerial personnel formerly employed
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`by one of the defendants, as those individuals were not directly involved in the alleged
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`underlying negligence at issue in the case.”)
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`To the extent Plaintiff seeks to impeach former employees regarding their
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`recollections of these various collateral matters involving other students and other
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`employees that occurred several decades ago, this is simply improper and should not be
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`permitted for the reasons stated above.
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`Point III
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`Houseman Must Be Added To The Verdict Sheet For Apportionment Of Liability
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`Significantly, Plaintiff does not dispute, and therefore concedes, that the
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`limited liability provisions of CPLR Article 16 apply here and that there is no applicable
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`exception under CPLR 1602. And by failing to plead an exception under CPLR 1602 in
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`his Amended Complaint, Plaintiff is barred from making any such argument now.
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`Thus, the only issue left for the Court to decide with respect to adding
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`Houseman to the verdict sheet is whether Plaintiff proved that he acted with due diligence
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`and could not obtain jurisdiction over Houseman. And Plaintiff clearly failed to do so here.
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`As demonstrated by both Plaintiff’s opposition and the District’s moving papers, there is
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`no question that Plaintiff could have obtained jurisdiction over Houseman. In a desperate
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`attempt to avoid having Houseman on the verdict sheet, Plaintiff’s opposition consists of
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`flawed logic and a fundamental misunderstanding of estate law. Plaintiff’s arguments
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`should therefore be rejected, as explained further below.
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`Plaintiff does not dispute that to obtain jurisdiction over Houseman, Plaintiff
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`could have petitioned the Surrogate’s Court to issue letters of administration to
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`Houseman’s distributees, and then added Houseman’s estate as a defendant. Plaintiff’s
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`argument that the Court has no jurisdiction over Houseman because he is dead is a nullity
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`given the action can proceed against his estate upon issuance of the letters of
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`administration. Plaintiff acknowledges that he checked the Surrogate Court’s website to
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`confirm if an estate was ever opened. (Doc. 243, ¶ 53). Upon confirming no estate had
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`been opened, Plaintiff admits that he located Houseman’s wife, a distributee who would
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`be authorized to receive letters of administration. (Doc. 243, ¶ 52). Plaintiff also admits
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`that he located Houseman’s son, a distributee who is authorized to receive letters of
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`administration. (Doc. 243, ¶ 52).
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`Plaintiff’s argument that he could not have obtained jurisdiction over them
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`because they live out of state is simply incorrect. The domiciliary of a distributee is
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`irrelevant. Houseman lived in Lyndonville when he passed away, and the Surrogate’s
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`Court has full and complete jurisdiction in law and in equity to administer justice in all
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`matters relating to estates and the affairs of him as the decedent. See SCP § 201. The
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`Surrogate’s Court Act even recognizes that relevant persons may reside out of state
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`where it notes that “[s]ervice of the process may be made on any person by personal
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`delivery to him of a copy of the process either within or without the state.” See SCP §
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`307 (emphasis added). Furthermore, even where jurisdiction over the distributees cannot
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`be obtained, SCP § 1001(8) provides that letters of administration shall be granted to the
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`public administrator in such circumstance. There is simply no basis for Plaintiff’s claim
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`that he could not have obtained jurisdiction over Houseman.
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`That Houseman supposedly owns no real property in New York is
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`immaterial to whether letters of administration may be issued, and this argument is
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`nothing more than a red herring. The Surrogate’s Court retains full and complete
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`jurisdiction “in all matters relating to estates and the affairs of decedents, and upon the
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`return of any process to try and determine all questions, legal or equitable, arising
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`between any or all of the parties to any action or proceeding, or between any party and
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`any other person having any claim or interest therein….” SCP § 201(3). By virtue of the
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`Surrogate’s Court jurisdiction, letters of appointment can be issued for reasons other than
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`whether the decedent has property. As set forth in SCP § 702, letters may be issued in
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`circumstances, like here, when it relates “to the defense of any claim or cause of action
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`against a decedent.”
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`None of
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`the authority cited by Plaintiff
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`involves
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`factually similar
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`circumstances to those presented here, nor do those cases support the notion that issuing
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`letters of administration is contingent upon whether the decedent has real property. The
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`cited cases involve scenarios in which a decedent had a will. See, e.g., Van Giessen v.
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`Bridgford, 83 N.Y. 348 (1881); Matter of Seward, 118 A.D.3d 1312 (4th Dept. 2014); Estate
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`of Moran, 145 N.Y.S.2d 241 (N.Y. Co. Sur. Ct. 1955). Moran, for example, dealt with an
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`application for successive letters of administration after a release of the executrix was
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`given, and the court rejected the application since there were no unadministered assets.
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`See 145 N.Y.S.2d at 243. Seward dealt with a petition for appointment seeking an
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`injunction for a charitable gift after the estate had been closed. 118 A.D.3d at 1314. The
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`court declined to issue letters since no unadministered assets remained in the estate, and
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`the petition should have been directed to the Attorney General, who handles enforcement
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`of charitable gifts. See id. Neither case involves the circumstances at issue here, nor do
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`the holdings in either case otherwise support Plaintiff’s argument.
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`More importantly, in Van Geissen v. Bridgford (cited in Seward), the Court
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`of Appeals held that, “[t]here may be cases where letters of administration are necessary
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`to be granted for other purposes than the recovery and distribution of assets, and we do
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`not intend to say that the existence of assets is essential to the jurisdiction of the surrogate
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`to grant letters of administration.” 83 N.Y. 348, 355 (1881) (emphasis added). Consistent
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`therewith, in In re Estate of D’Angelo, the Surrogate’s Court explicitly rejected the
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`argument that “since the decedent allegedly left no assets, administration of his estate is
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`unnecessary,” which is precisely what Plaintiff is arguing here. 12 Misc.3d 1187(A), 2006
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`WL 2089217, at *2 (N.Y. Sur. Ct. 2006). The Surrogate’s Court explained that there are
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`other reasons to appoint letters of administration, including “to the defense of any claim
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`or cause of action against a decedent,” like here. Id. There is simply no requirement that
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`the issuance of letters of administration be contingent upon whether the decedent retains
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`a real property interest. And in reality, many times a decedent’s assets are unknown at
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`the time of death, and a valid asset search cannot be conducted until letters of
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`administration are issued.
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`Even
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`if
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`the Court considers Plaintiff’s
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`flawed argument regarding
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`Houseman’s assets, Plaintiff is relying on pure speculation that Houseman has no assets.
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`Plaintiff has only shown that Houseman allegedly has no remaining real property;
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`however, property encompasses anything that Houseman may own that is real or
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`personal. EPTL § 1-2.15. At this point, whether Houseman has property other than real
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`estate remains unknown, and is another basis for letters of administration to be issued.
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`Plaintiff’s guess or assumption that Houseman has no assets for an estate to exist simply
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`does not constitute due diligence with pursuing letters of administration.
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`Moreover, the fact that Houseman has been deceased since 2008 is
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`irrelevant. There is no statute of limitations on when letters of administration can be
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`issued. Letters of administration can be issued at any time after the decedent has passed.
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`They can even be re-issued after an estate is closed. See generally, Cherry v. Decker,
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`280 A.D.2d 867 (3d Dept. 2001). From an estate proceeding perspective, this makes
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`sense. There are many situations that may arise after a decedent’s passing that require
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`letters of administration to be issued or re-issued, such as where all property interests of
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`a decedent are not known at the time of death but become known at some point after
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`death. The Surrogate’s Court, therefore, continues to retain jurisdiction long after a
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`decedent passes to address issues related to the affairs of a decedent whenever they
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`arise. See SCP § 201.
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`14 of 16
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 02:47 PM
`NYSCEF DOC. NO. 282
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`In sum, Plaintiff has failed to come forward with any proof or legal authority
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`that he could not obtain jurisdiction over Houseman. As demonstrated above, Plaintiff’s
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`position is simply contrary to the fundamentals of N.Y. Estates Law and Surrogates Court
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`Procedure Act and should be rejected. And notwithstanding the clear legal grounds to
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`apportion fault to Houseman, as a matter of fundamental fairness in the context of a CVA
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`case involving allegations of abuse perpetrated by Houseman approximately 40 years
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`ago, he must be added to the verdict sheet so that the jury can properly apportion fault.
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`Accordingly, Defendant’s request to add Houseman to the verdict sheet for apportionment
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`of liability should be granted.
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`CONCLUSION
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`For the reasons set forth herein, and the reasons set forth in the
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`accompanying Reply Affirmation of Ryan G. Smith as well as the District’s original motion
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`papers, the District respectfully requests that the Court grant the District’s motions in
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`limine in their entirety, and for any other or further relief that it deems appropriate.
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`DATED:
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`February 22, 2024
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`WEBSTER SZANYI LLP
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`
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`Attorneys for Defendants
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`By: s/ Ryan G. Smith
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`Ryan G. Smith
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`Shannon B. Vandermeer
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`Meghan M. Hayes
`424 Main Street, Suite 1400
`Buffalo, New York 14202
`(716) 842-2800
`rsmith@websterszanyi.com
`svandermeer@websterszanyi.com
`mhayes@websterszanyi.com
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`11
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`FILED: ORLEANS COUNTY CLERK 02/22/2024 02:47 PM
`NYSCEF DOC. NO. 282
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 02/22/2024
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`WORD COUNT LIMIT CERTIFICATION
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` hereby certify pursuant to 22 NYCRR 202.8-b that the foregoing Memorandum of Law
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`
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` I
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`was prepared on a computer using Microsoft Word.
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`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 Memorandum of Law, inclusive of point
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`headings and footnotes and exclusive of pages containing the table of contents, table of
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`citations, proof of service and this Statement is 3,077.
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`
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`Dated:
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`February 22, 2024
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`s/ Ryan G. Smith
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` Ryan G. Smith
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`16 of 16
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