Dolgas v. Wales
| Decision Date | 06 April 2023 |
| Docket Number | s. 535688,535689 |
| Citation | 2023 NY Slip Op 01830 |
| Parties | Mark Dolgas, Appellant-Respondent, v. Donald Wales, Defendant, and Tri-Valley Elementary School et al., Respondents-Appellants. (Action No. 1.) Jeffrey Cloonan et al., Appellants-Respondents, v. Donald Wales, Defendant, and Tri-Valley Elementary School et al., Respondents-Appellants. (Action No. 2.) |
| Court | New York Supreme Court — Appellate Division |
Calendar Date: February 22, 2023
Powers & Santola, LLP, Albany and Manly, Stewart and Finaldi PC, New York City (Hugh D. Sandler of Krantz Berman LLP, New York City, of counsel), for appellants-respondents.
Whiteman Osterman & Hanna LLP, Albany (William S. Nolan of counsel), for respondents-appellants.
Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald and Ceresia, JJ.
Cross-appeals (1) from an order of the Supreme Court (Stephan G. Schick, J.), entered June 6, 2022 in Sullivan County, which, in action No. 1, among other things, partially granted certain defendants' motion for summary judgment dismissing the amended complaint against them, (2) from an order of said court, entered June 14, 2022 in Sullivan County, which, in action No. 2, among other things, partially granted certain defendants' motion for summary judgment dismissing the complaint against them, and (3) from an order from said court, entered June 20, 2022 in Sullivan County, which, among other things, partially granted plaintiffs' motion to join actions No. 1 and No. 2 for trial.
Plaintiff Mark Dolgas commenced action No. 1 pursuant to the Child Victims Act (see CPLR 214-g) alleging that, while a student, he was sexually abused by defendant Donald Wales, a teacher who formerly worked at defendant Tri-Valley Elementary School, and asserting various causes of action in connection therewith. Plaintiffs Jeffrey Cloonan and Sean Boyle commenced action No. 2, also pursuant to the Child Victims Act, alleging similar claims to that of Dolgas. Following joinder of issue and discovery in each action, Tri-Valley Elementary School, defendants Tri-Valley Central School District and the Board of Education of the Tri-Valley Central School District (hereinafter collectively referred to as the School District) moved for summary judgment dismissing the amended complaint in action No. 1 and moved for summary judgment dismissing the complaint in action No. 2. Dolgas cross-moved for partial summary judgment on his claim of a breach of duty to report abuse under Social Services Law §§ 413 and 420. In a separate cross-motion, Cloonan and Boyle moved for similar relief. In an order entered June 6, 2022, Supreme Court granted the School District's motion in action No. 1 to the extent of dismissing all causes of action asserted against them, except for the cause of action alleging a breach of a statutory duty to report child abuse, and also granted Dolgas' cross-motion for partial summary judgment. In an order entered June 14, 2022, the court similarly dismissed all causes of action asserted against the School District in action No. 2, except for the cause of action alleging a breach of a statutory duty to report child abuse, and granted the cross-motion for partial summary judgment by Cloonan and Boyle.
Plaintiffs also moved to have action No. 1 and action No. 2 joined for trial. The School District opposed and cross-moved to sever Cloonan's claims from Boyle's claims. In an order entered June 20, 2022, Supreme Court granted plaintiffs' motion to the extent of joining Dolgas' and Boyle's claims for trial and granted the School District's cross-motion to the extent of severing Cloonan's claims from Boyle's claims. These appeals ensued.
Turning first to the negligent hiring, retention and supervision causes of action, an essential element for these claims is that the School District knew or should have known of Wales' propensity to sexually abuse children (see Taylor v Point at Saranac Lake, Inc., 135 A.D.3d 1147, 1149 [3d Dept 2016]; Stevens v Kellar, 112 A.D.3d 1206, 1209 [3d Dept 2013]). The School District tendered, among other things, Wales' employment application, his teaching certificate and positive letters of reference on his behalf. This evidence did not give notice of any propensity by Wales to sexually abuse children. Contrary to plaintiffs' assertion, the School District did not have a duty to further investigate Wales' background in view of the information submitted by him (see Samoya W. v 3940 Carpenter Ave., LLC, 187 A.D.3d 678, 679 [1st Dept 2020]; Boadnaraine v City of New York, 68 A.D.3d 1032, 1033 [2d Dept 2009]; K.I. v New York City Bd. of Educ., 256 A.D.2d 189, 192 [1st Dept 1998]). In any event, even if the School District had contacted the school where Wales previously worked, as plaintiffs maintain was required, the district principal and another teacher from that school each gave a positive review of Wales in their respective letters of recommendation - information submitted with Wales' employment application. It is speculative to conclude that these individuals would have disclosed anything different than what was already mentioned in their recommendation letters or any other information indicating that Wales had a propensity to commit the alleged abuse (see Travis v United Health Servs. Hosps., Inc., 23 A.D.3d 884, 885 [3d Dept 2005]; Honohan v Martin's Food of S. Burlington, 255 A.D.2d 627, 628 [3d Dept 1998]; Curtis v County of Oneida, 248 A.D.2d 999, 999 [4th Dept 1998]).
The School District's evidentiary proffer also included deposition testimony of teachers who worked at Tri-Valley Elementary School when Wales did. One teacher stated that Wales was outgoing and friendly, that he was a decent teacher with an excellent reputation, that he had normal interactions with students and that she had no concerns about him. Other teachers similarly had no complaints or suspicions about Wales. Another teacher and a member of the board of education both testified that the first time that they ever learned of any sexual abuse by Wales was when he was arrested for such conduct.
In response, plaintiffs point to evidence that Wales took only male students with him on personal fishing trips, that Wales had a chair by his desk on which only male students sat and that Wales was seen driving in his car only with male students. Even viewing this evidence in the light most favorable to plaintiffs, however, these instances do not, either individually or collectively, show that Wales had a propensity to sexually abuse students (see Doe v New York City Dept. of Educ., 126 A.D.3d 612, 612 [1st Dept 2015]; Mary KK. v Jack LL., 203 A.D.2d 840, 842 [3d Dept 1994]). Indeed, one teacher testified that she did not think it was odd that Wales kept a chair by his desk for students. Another teacher also stated that seeing only male students on this chair did not cause her any concern such that she felt any action about it was required. As to the fishing trips, multiple teachers stated that they had no concerns about them, with one of them even noting that they lived in a small community where many teachers interacted with students outside of school.
Plaintiffs' reliance on rumors and gossip in the community about Wales is likewise unavailing (see Ernest L. v Charlton School, 30 A.D.3d 649, 652 [3d Dept 2006]). The record reflects that any rumors and gossip centered on the fact that Wales took only male students on fishing trips. Critically, the topic of the rumors and gossip did not involve any instances of sexual abuse or other inappropriate behavior by Wales. That said, lacking here is "some foundation upon which the question of foreseeability of harm may be predicated, i.e., at least a minimal showing as to the existence of actual or constructive notice" (Steinborn v Himmel, 9 A.D.3d 531, 534 [3d Dept 2004] [internal quotations marks and citation omitted]). As such, dismissal of the negligent hiring, retention and supervision causes of action was correct (see Brandy B. v Eden Cent. School Dist., 15 N.Y.3d 297, 302 [2010]; Stevens v Kellar, 112 A.D.3d at 1209; Steinborn v Himmel, 9 A.D.3d at 534; Dia CC. v Ithaca City Sch. Dist., 304 A.D.2d 955, 956 [3d Dept 2003], lv denied 100 N.Y.2d 506 [2003]).
Regarding the negligent infliction of emotional distress claim, plaintiffs were obligated to show that there was a breach of a duty owed to them which unreasonably endangered their physical safety or caused them to fear for their own physical safety (see A.M.P. v Benjamin, 201 A.D.3d 50, 57 [3d Dept 2021]; Kenneth S. v Berkshire Farm Ctr. & Servs. for Youth, 36 A.D.3d 1092, 1094 [3d Dept 2007]). According to plaintiffs, the gist of this claim is that, following the abuse by Wales, the School District pressured them to remain silent about the abuse, never told their parents about it and continued to allow Wales to have access to them. Even if plaintiffs were correct about the foregoing atmosphere created by the School District, the record still fails to show that plaintiffs' physical safety was endangered or that they feared for their own safety. Consequently, the negligent infliction of emotional distress cause of action was correctly dismissed (see Passucci v Home Depot, Inc., 67 A.D.3d 1470, 1471 [4th Dept 2009]; Peter T. v Children's Vil., Inc., 30 A.D.3d 582, 585-586 [2d Dept 2006]; Lancelotti v Howard, 155 A.D.2d 588, 590 [2d Dept 1989]).
Regarding plaintiffs' federal claim under 42 USC § 1983, there is no serious dispute that CPLR 214 (5), as the residual statute of limitations for personal injury actions, applies and that the section 1983 claim is governed by a three-year statute of limitations (see McFadden v Amodio, 149 A.D.3d 1282, 1283 [3d Dept 2017]). That said, the section 1983 claim is untimely. Notwithstanding this, the relevant question is whether CPLR 214-g revive...
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