Doe v. Bd. of Educ. of Greenport Union Free Sch. Dist.

• Decision Date: 14 November 2012
• Citation: 2012 N.Y. Slip Op. 07633,100 A.D.3d 703,955 N.Y.S.2d 600
• Parties: “John DOE 1,” etc., et al., respondents, v. BOARD OF EDUCATION OF GREENPORT UNION FREE SCHOOL DISTRICT, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 703
955 N.Y.S.2d 600
2012 N.Y. Slip Op. 07633

“John DOE 1,” etc., et al., respondents,
v.
BOARD OF EDUCATION OF GREENPORT UNION FREE SCHOOL DISTRICT, et al., appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 14, 2012.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale,

[955 N.Y.S.2d 601]

N.Y. (Christine Gasser of counsel), for appellants.

Joseph W. Prokop, PLLC, Central Islip, N.Y., for respondents.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

[100 A.D.3d 703]In an action to recover damages for personal injuries, etc., the defendants Board of Education of the Greenport Union Free School District, Gary Charters, Greenport Union Free School District, and Charles Kozora appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.), entered December 2, 2010, as, upon granting the plaintiffs' cross motion for leave to serve and file a second amended complaint, denied those branches of their motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in vicarious liability and negligent hiring and [100 A.D.3d 704]supervision insofar as asserted against them in the second amended complaint, or alternatively, pursuant to CPLR 3211(c) for summary judgment dismissing those causes of action insofar as asserted against them in the second amended complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in vicarious liability and negligent hiring and supervision insofar as asserted against the appellants in the second amended complaint, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.

The infant plaintiff “John Doe 1” (hereinafter the infant plaintiff) was a student in the defendant Greenport Union Free School District (hereinafter the school district), when the defendant Maria Commins, a teacher's aide employed by the school district, allegedly engaged in an inappropriate sexual relationship with him. The infant plaintiff and his parents, “John Doe 2” and “Jane Doe 1,” commenced an action against Commins as well as the school district, the Board of Education of the Greenport Union Free School District, Gary Charters, the president of the school district, and Charles Kozora, the superintendent of the school district (hereinafter collectively the school defendants). The second amended complaint asserted various causes of action against the school defendants, including a cause of action alleging that the school defendants were vicariously liable for the actions of Commins, and were liable for the negligent hiring and supervision of Commins. At a hearing held pursuant to General Municipal Law § 50–h, the infant plaintiff repeatedly and unequivocally testified that he first met Commins...