Johansmeyer v. N.Y.C. Dep't of Educ.

• Decision Date: 03 October 2018
• Docket Number: 2015–10262,Index No. 29923/10
• Citation: 85 N.Y.S.3d 562,165 A.D.3d 634
• Parties: Anthony JOHANSMEYER, etc., et al., respondents, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 634

85 N.Y.S.3d 562

Anthony JOHANSMEYER, etc., et al., respondents,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, et al., appellants, et al., defendants.

2015–10262

Index No. 29923/10

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

Argued - March 9, 2018

October 3, 2018

Rutherford and Christie, New York, N.Y. (Lauren E. Bryant of counsel), for appellants New York City Department of Education and City of New York.

Marshall, Conway & Bradley, P.C., New York, N.Y. (Amy S. Weissman and Lauren Turkel of counsel), for appellant Child Center of NY, Inc.

Betti & Associates, New York, N.Y. (Callan & Byrnes and Pollack, Pollack, Isaac & De Cicco, LLP [Brian J. Isaac and Michael H. Zhu ], of counsel), for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent hiring, supervision, and retention, the defendants New York City Department of Education and City of New York appeal, and the defendant Child Center of NY, Inc., separately appeals, from an order of the Supreme Court, Queens County (Phyllis Orlikoff Flug, J.), dated September 8, 2015. The order, insofar as appealed from, denied those branches of the motion of the defendants New York City Department of Education and of City of New York and the cross motion of the defendant the Child Center of NY, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

This action arises out of acts of sexual abuse and molestation inflicted upon the infant plaintiff by the defendant Joseph Denice. At all relevant times, the infant plaintiff was a student at IS 25 Adrien Block School (hereinafter the school), a part of the defendant New York City Department of Education (hereinafter the DOE). He was also a participant in an after school program on the school's premises which was operated by the defendant Child Center of NY, Inc. (hereinafter Child Center). Denice was employed by Child Center in the after school program, and also served as an intern in the school's guidance department.

In 2010, the infant plaintiff, by his mother, and his parents suing derivatively, commenced this action against the DOE, the City of New York, and Child Center, among others. The plaintiffs alleged, inter alia, that the DOE and Child Center were negligent in their hiring, supervision, and retention of Denice. The DOE and the City (hereinafter together the DOE defendants) moved, and Child Center cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied that branch of the DOE defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the DOE, on the ground that triable issues of fact existed as to the DOE's negligence. The court denied that branch of Child Center's cross motion which was for summary judgment dismissing the complaint insofar as asserted against it as untimely. The DOE defendants and Child Center appeal.

"Although an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business’ " ( Jackson v. New York Univ. Downtown Hosp. , 69 A.D.3d 801, 801, 893 N.Y.S.2d 235, quoting Fernandez v. Rustic Inn, Inc. , 60 A.D.3d 893, 896, 876 N.Y.S.2d 99 ), the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee (see Chichester v. Wallace , 150 A.D.3d 1073, 55 N.Y.S.3d 378 ; Kenneth R. v. Roman Catholic Diocese of Brooklyn , 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 ). "[A] necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" ( Kenneth R. v. Roman Catholic Diocese of Brooklyn , 229 A.D.2d at 161, 654 N.Y.S.2d 791 ; see Detone v. Bullit Courier Serv. , 140 A.D.2d 278, 528 N.Y.S.2d 575 ). The employer's negligence lies in having " ‘placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention’ " of the employee ( Sandra M. v. St. Luke's Roosevelt Hosp. Ctr. , 33 A.D.3d 875, 878–879, 823 N.Y.S.2d 463, quoting Detone v. Bullit Courier Serv. , 140 A.D.2d at 279, 528 N.Y.S.2d 575 ).

Here, the DOE defendants failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision of Denice. The DOE defendants' own submissions in support of their motion for summary judgment raised a triable issue of fact as to whether the DOE took the appropriate measures to evaluate Denice's employment and fitness at the time he was allowed to intern at the school (see Giangrasso v. Association for Help of Retarded Children , 243 A.D.2d 680, 664 N.Y.S.2d 569 ; Pratt v. Ocean Med. Care , 236...