John Doe PF v. Massapequa Union Free Sch. Dist.
| Docket Number | Index No. 900106/2020,Motion Seq. No. 002 |
| Decision Date | 21 November 2022 |
| Citation | 2022 NY Slip Op 34602 (U) |
| Parties | JOHN DOE PF, Plaintiff, v. MASSAPEQUA UNION FREE SCHOOL DISTRICT, Defendant. |
| Court | New York Supreme Court |
Part CVA-R
DECISION AND ORDER
The following papers, in addition to any memoranda of law and statements of uncontested material facts, were reviewed in preparing this Decision and Order:
Defendant's Notice of Motion, Affirmation & Exhibit ....1
At issue in this action is whether a school district has an obligation to act to protect its students from foreseeable harm once it learns that a teacher is a sexual deviant and if so, whether it matters how or where it learns of this fact. The answer to the first question is obvious and long settled: of course it does. A school district, no less than any other employer, has a common law duty to take appropriate action when it has reason to know that an undue risk of harm exists because of its employee's harmful propensity. See Waterbury v. New York City Ballet, Inc., 205 A.D.3d 154, 164 (1st Dept. 2022). And common-sense dictates that a school district must act to protect its schoolchildren regardless of how it learns of the danger that threatens them. As a result, the motion of defendant Massapequa Union Free School District (the District) for summary judgment in this action is denied in part, as there are issues of fact as to whether the District was on notice of the propensity of its teacher, John Anglin (now deceased), to sexually abuse its students and whether his continued employment after such notice led to the sexual abuse of plaintiff.
BACKGROUND`[1]
Plaintiff attended Parkside Junior High School for three years from seventh grade to ninth grade, approximately in 1958 through 1960. While in seventh grade, he was invited by his social studies teacher, Anglin, to go to Anglin's house after school. Plaintiff did so, arriving at the house on his own. In the house, Anglin proceeded to rub plaintiff's shoulders and back, put his hands down plaintiff's pants and rubbed his genitals. Thereafter, plaintiff visited Anglin at Anglin's home on four or five more occasions while in Anglin's seventh grade class, and the same pattern of abuse was repeated each time.
Anglin ceased being plaintiff's teacher, but the abuse was repeated on approximately ten more occasions while plaintiff was in the eighth and ninth grades (at Anglin's school). While in eighth grade, Anglin and plaintiff began smoking cigarettes and drinking beer during his visits.
Plaintiff then attended Massapequa High School for grades tenth through twelfth. Anglin transferred to Massapequa High School sometime while plaintiff was a student there although plaintiff was not in his classes. Anglin's abuse of plaintiff continued until the beginning of Anglin's eleventh grade year. In total, plaintiff was abused on six to twelve occasions while he was in high school. All of the abuse occurred at Anglin's house and plaintiff kept their rendezvous secret.
At some point during this time period Anglin moved residences.[2] Anglin had a roommate, George Apuzzi, at his new home. Apuzzi was another teacher employed by the District, beginning in 1960. He initially taught at Parkside Junior High and then transferred in 1961 to another high school in the District-Berner High School-where he taught until 1968. Apuzzi witnessed plaintiff's multiple visits with Anglin at their home. Apuzzi also observed incidents, of which there were approximately three, in which Anglin had plaintiff hold down his dog while Anglin applied lotion to the animal's penis and masturbated it until ejaculation. Anglin sought to convince plaintiff to masturbate the dog-stating that the dog had an infection on its penis and that cream had to be rubbed on it-but plaintiff declined. Plaintiff relies on Apuzzi's observations for his assertion that the District had notice of the abuse he endured and Anglin's propensity to commit sexual abuse.
The District now moves for summary judgment dismissing the complaint. It is the movant who has the burden to establish an entitlement to summary judgment as a matter of law. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997). "CPLR §3212(b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material facts on every relevant issue raised by the pleadings, including any affirmative defenses." Stone v. Continental Ins. Co., 234 A.D.2d 282, 284 (2d Dept. 1996). Where the movant fails to meet its initial burden, the motion for summary judgment should be denied. US Bank N.A. v. Weinman, 123 A.D.3d 1108 (2d Dept. 2014).
A defendant's burden cannot be satisfied merely by pointing to gaps in the plaintiff's proof. In re New York City Asbestos Litigation (Carriero), 174 A.D.3d 461 (1st Dept. 2019); Vittorio v. U-Haul Co., 52 A.D.3d 823 (2d Dept. 2008).
Once a movant has shown a prima facie right to summary judgment, the burden shifts to the opposing party to show that a factual dispute exists requiring a trial, and such facts presented by the opposing party must be presented by evidentiary proof in admissible form. Zuckerman v. New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979).
Plaintiff alleges that that the District was negligent in its supervision of him and in its supervision and retention of Anglin. These negligence claims require a finding that the District was on notice that Anglin had a propensity to engage in the sexual abuse at issue, such that his acts could be anticipated or were foreseeable. Nevaeh T. v. City of New York, 132 A.D.3d 840 (2d Dept. 2015). A necessary element of a cause of action alleging negligent retention or supervision of an employee is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury. Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d 634, 635 (2d Dept. 2018). 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. Id. at 635-36.
Similarly where, as here, a complaint also alleges negligent supervision of a child stemming from injuries related to an individual's intentional acts, "the plaintiff generally must demonstrate that the school knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable." Nevaeh T. v. City of New York, 132 A.D.3d at 842, quoting Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d 826, 828 (2d Dept. 2015); see also Mirand v. City of New York, 84 N.Y.2d 44 (1994). A school owes its students such care as a parent of ordinary prudence would observe in comparable circumstances. Doe v. Whitney, 8 A.D.3d 610, 611 (2d Dept. 2004), quoting Doe v. Orange-Ulster Bd. of Coop. Educ. Servs., 4 A.D.3d 387, 388 (2d Dept. 2004).
A review of caselaw concerning allegations by a student of teacher abuse reveals that whether a school district was on sufficient notice of the teacher's propensities is a sui generis inquiry. Sufficient evidence of notice to survive summary judgment was found in Doe v. Whitney, where the teacher/abuser often kept the plaintiff in his first-grade classroom during recess and later removed him from his second and third-grade classrooms without explanation. Doe v. Whitney, 8 A.D.3d at 611. In Murray v. Research Foundation of State University of N.Y., 283 A.D.2d 995 (4th Dept. 2001), the court denied the defendant school district's summary judgment motion where a middle school student was let out of classes based upon student passes provided by the abuser, who abused the student in his school office behind closed doors. In Doe v. Bd. of Educ. of Morris Central School, 9 A.D.3d 588 (3d Dept. 2004), summary judgment was denied because "inappropriate touching occurred on multiple occasions in two different locations over a period of time [one to three week period]" and, therefore, "it simply [could not] be said, as a matter of law, that there were insufficient facts to put defendants on notice of a potentially harmful situation." Id. at 591.
In contrast, in Dia CC. v. Ithaca City School District, 304 A.D.2d 955 (3d Dept. 2003), it was held that releasing a student from class to another teacher for one-on-one instruction was not a breach of the duty to supervise as a matter of law. See also Ghaffari v. North Rockland Cent. School Dist., 23 A.D.3d 342 (2d Dept. 2005)(summary judgment granted due to lack of notice where teacher allowed to meet privately with student). It has also been found that a high school student meeting with a teacher "behind locked doors" is not enough to stave off summary judgment "given the degree of trust reposed in teachers and the fact that such meetings are an integral part of the educational process." Mary KK v. Jack LL, 203 A.D.2d 840, 842 (3d Dept. 1994).
Here, there is at a minimum an issue of fact as to whether Apuzzi's knowledge of Anglin's episodes of masturbating his dog with the assistance of plaintiff was sufficient to put Apuzzi on notice that Anglin had a propensity to commit sexually deviant acts, such as sexually abusing a student.
The more difficult issue is whether Apuzzi's knowledge may be imputed to the District. To answer that question, this court must determine whether Apuzzi had a duty to report to the District the sexual deviancy of Anglin that he witnessed at his home.[3]...
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