J.A. v. City of N.Y.
| Decision Date | 06 January 2009 |
| Docket Number | No. 22072/01.,22072/01. |
| Citation | 946 N.Y.S.2d 67 |
| Parties | J.A., an infant over the age of 14 years by his mother and natural guardian, Lydia Ramos, and Lydia Ramos, Individually, Plaintiffs, v. The CITY OF NEW YORK and The New York City Department of Education and Tara McDermott, Defendants Marilyn Arce, as Mother and natural guardian of M.C. Plaintiff The City of New York and The New York City Department of Education, Defendants Marilyn Arce, as Mother and natural guardian of M.C., Plaintiff v. The City of New York and The New York City Department of Education, Defendants. |
| Court | New York Supreme Court |
The following papers numbered 1 to 5 read on this motion for summary judgment noticed on August 21, 2007 and duly submitted on the Motion Calendar of June 3, 2008
Notice of Motion–Exhibits [A–P] and Affirmation annexed1
Affirmation in Opposition–Exhibits [A–D]—J.A.2
Affirmation in Opposition–Exhibits [A–C]—Arce 3
Affirmation in Reply–J.A.
Upon the foregoing papers, the above motion is decided as set forth below.
These two cases seeking compensatory 1 damages, stem from the June 8, 2001 sexual assault of the minor plaintiffs by the individual defendant in action No.1, Tara McDermott (“McDermott”). At the time of the assault, the plaintiff J.A.2 was one day shy of his fourteenth birthday, while M.C., was twelve. Both were students at P.S. 211 in the Bronx at which school McDermott was employed as a paraprofessional. The assault occurred after school hours at McDermott's home. A criminal investigation ensued and McDermott was arrested on June 20, 2001. She was suspended without pay on June 21, 2001 pending the investigation, and on September 24, 2002, she entered a plea of guilty to two counts of rape in the third degree [ Penal Law § 130.25]. She was sentenced to two concurrent sentences of one to three years in prison and was released after serving the maximum sentence.
The first entitled action was commenced in August 2001, and as amended, alleges that the defendant McDermott was acting within the scope of her employment when the assault occurred and that the municipal defendants were therefore vicariously liable for her conduct. It is also alleged that defendant was negligent in its hiring, training, retention and supervision of McDermott. Issue was joined with respect to defendants City of New York and New York City Department of Education in the same month, and a note of issue filed on April 11, 2007.
The second action was commenced in June 2003. It was alleged that the infant plaintiff was sexually assaulted due to the defendants' negligent supervision of the students in its charge, and due to the negligent hiring, supervision, and retention of McDermott. Issue was joined by the service of defendant's answer in July, 2003. A note of issue was also filed on April 11, 2007.
The defendants move to dismiss the second action on the ground that the plaintiffs failed to serve the City with Notice of Claim in conformity with a prior order of this court granting leave for same.
Defendants move for an award of summary judgment dismissing the complaints in both actions on the grounds that: 1) at the time of the incident, defendants did not owe the plaintiffs a duty of care; 2) defendants cannot be held liable under a theory of respondeat superior as a matter of law; 3) defendants have no liability under the doctrine of negligent hiring, retention or supervision; 4) defendants are entitled to immunity for their discretionary decisions and, 5) dismissal is warranted as against defendant City of New York as it is not a proper party to these actions. In support of the motion defendants submit copies of the Notices of Claim, the pleadings, and the verified bills of particulars [ Exhibits A–K]; the 04/14/05 testimony of plaintiff M.C. [ Exhibit L], and the 03/21/06 testimony of plaintiff J.A. [ Exhibit M], as well as that of PS. 211 Supervising School Aide, Brenda Savage [ Exhibit O], and former Assistant Principal Eileen Cohen [ Exhibit P], and the affidavits of the Director for Employee Relations for the Division of Human Resources at the Department of Education [ Exhibit R], and the Assistant Principal at Public School 754x concerning a search for contemporaneous “anecdotal records.” [ Exhibit R].
In opposition, plaintiffs in the first action argue that the record herein raises triable issues of fact as to whether defendants breached the requisite duty of care of a reasonably prudent parent under the circumstances by failing to “supervise or control the release of the underage male students to Tara McDermott, whom defendants should have known posed a foreseeable risk of harm, even if that risk was remote.” Plaintiffs also argue that the Department of Education (D.O.E.) is liable under the theory of respondeati superior as there is “no dispute that the determination is always a factual one for the jury unless the undisputed facts provide no basis for applying the doctrine.” Plaintiffs contend that there are also triable issues of fact as to whether defendants are liable under the theory of negligent hiring, supervision, and retention, and maintain that the defendants are not entitled to immunity. Plaintiffs submit a copy of the 01/03/08 examination before trial of defendant McDermott [ Exhibit A], a transcription of her videotaped confession in the criminal proceeding [ Exhibit B], a copy of that video [ Exhibit C], as well as a forensic psychological evaluation of McDermott conducted at the request of her criminal defense attorney [ Exhibit D].
In opposition, plaintiff in the second action adopts the above arguments and maintains that the Notice of Claim was timely served in conformity with the order of the court (Crispino, J) dated January 31, 2003. A copy of the Notice with the stamp receipt of the Corporation Counsel is annexed as Exhibit “C.” Plaintiff also submits copies of McDermott's EBT [ Exhibit B] and the psychologist's report [ Exhibit A].
In reply, defendants contend that the J.A. opposition papers should not be considered as they were not served in conformity with the stipulation of the parties adjourning the submission of the papers. The stipulation called for facsimile service on defendants on or before May 13, 2008. [The affidavit of service indicated that the papers were mailed.] Defendants also argue that the psychological evaluation is inadmissible as it is neither authenticated, and no proper foundation has been established for its admission as a business record. In addition, defendants maintain that plaintiffs' claims for negligent supervision must be dismissed as plaintiffs have failed to rebut defendants showing that at the time and place of the incident, the defendants owed no duty of care to the plaintiffs. Moreover, it is argued that neither plaintiff has raised a triable issue of fact to rebut the showing that there is no basis for claims under the theories of respondent superior, and negligent hiring/retention.
With reference to the procedural issues raised, the court will entertain the opposition papers submitted by plaintiff J.A. despite the fact that there appears to have been no facsimile service of those papers as contemplated in the stipulation of adjournment. The defendants make no showing of prejudice resulting from such consideration.
In addition, it is clear that any challenge to the timeliness of the service of the Notice of Claim in the second entitled action is unavailing. The prior order (Crispino, J.) dated January 31, 2003 provided for service and filing of the notice within thirty days thereof. The Corporation Counsel date-stamp on the copy of plaintiff M.C.'s Notice of Claim reads: February 26, 2003.
During the 2000–2001 school year, CS 211 was a “satellite” or “off site” middle school program under the auspices of Public School 754X, located on Prospect Avenue in the Bronx. The Assistant Principal of the program, which was located in a portion of the fourth floor of the building site, was Eileen Cohen. Ms Cohen reported to the 754X Principal, Michael Burke. There were between fifty-five to sixty 754 X students assigned to the 211 program, ranging in ages from eleven to fourteen years. The students were assigned to the program based upon a determination of need for special education due to emotional disabilities/ behavioral problems [ COHEN EBT: 33–35]. The program was assigned four classrooms, approximately six teachers, and approximately four para-professionals, one assigned to each courtroom [ COHEN EBT: 9–18].
Tara McDermott was a para-professional assigned to CS 211, having first been employed by the defendant department as a substitute para-professional in another school in November 1999, her employment application having been subject to a background investigation with fingerprinting and coordination of those prints with the Division of Criminal Justice Services [ Affidavit of Andrew R. Goodman ¶¶ 3–4, Exhibit R to Moving Papers]. McDermott was assigned to CS 211 at the beginning of the 2000 school year.D.O.E. employee Brenda Savage was also assigned to CS 211 in the capacity of a Supervising School Aide [ SAVAGE EBT: 7]. Ms. Savage testified that during the course of the school year, she could not remember exactly when, other than describing it as “jacket weather”, she observed McDermott after school hours in the company of two male students in a pizza parlor “around the corner” from the school [ EBT: 34–39].She also testified that neither plaintiff was one of these two students [ Id. 38]. She could not recall telling anyone at school of her observation [ Id. 39]. Ms. Savage had occasion to make a similar observation later in the school year “[p]ossibly, the end of May, May, around May.” She could not recall how many male students were with McDermott “[m]aybe, two”, nor could she remember whether they were the same...
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