SR v. Gates Chili Bd. of Educ.

• Docket Number: Index No. E2020007409
• Decision Date: 24 February 2023
• Parties: SR, Plaintiff, v. GATES CHILI BOARD OF EDUCATION, Gates Chili Central School District and Gates Chili High School, Defendants. Gates Chili Board of Education, Gates Chili Central School District and Gates Chili High School, Third-Party Plaintiffs, v. Steven Wilson, Third-Party Defendant.
• Court: New York Supreme Court

185 N.Y.S.3d 912

SR, Plaintiff,
v.
GATES CHILI BOARD OF EDUCATION, Gates Chili Central School District and Gates Chili High School, Defendants.

Gates Chili Board of Education, Gates Chili Central School District and Gates Chili High School, Third-Party Plaintiffs,
v.
Steven Wilson, Third-Party Defendant.

Index No. E2020007409

Supreme Court, Monroe County, New York.

Decided on February 24, 2023

185 N.Y.S.3d 915

For the Plaintiff: Steven G. Schwarz, Esq., Lesley E. Niebel, Esq., Faraci Lange, LLP, 1882 South Winton Road, Ste. 1, Rochester, New York 14614

For the Defendants: Michael E. Appelbaum, Esq., Goldberg and Segalla LLP, 665 Main Street, Buffalo, NY 14203

Charles A. Schiano, Jr., J.

In this action, plaintiff, SR, seeks to recover damages for alleged sexual abuse of her in 1991 by Steven Wilson (hereafter "Wilson") when plaintiff was a student at Gates Chili High School where Wilson taught and coached the soccer and basketball teams on which plaintiff played her Sophomore, Junior and Senior (Soccer only) years. Wilson is alleged to have used his position as a teacher and coach to develop a close and intimate relationship with plaintiff culminating in intimate kisses and sexual intercourse. The kissing is alleged to have begun during plaintiff's senior year on November 8, 1991, days before plaintiff turned seventeen. Three instances of sexual intercourse between plaintiff and Wilson are alleged to have occurred at Wilson's home, after plaintiff turned seventeen, on November 15, November 23, and on December 6, 1991.

In 1992, the Gates-Chili Board of Education and Gates-Chili Central School District brought a proceeding pursuant to Education Law Section 3020-a to address Wilson's conduct with plaintiff. A hearing panel was convened (the "Panel") and an evidentiary hearing occurred over eight days in 1993. The Panel issued a written decision on July 1, 1993, and concluded that the "findings on the record show that the [Gates Chili Central School] District has proven beyond a preponderance of the evidence that [Wilson] is guilty of conduct unbecoming a teacher and that the penalty of termination is an appropriate one" (Decision of the Hearing Panel, July 1, 1993, New York State Courts Electronic Filing [NYSCEF] Doc No. 41 at 23). Specific determinations of the Panel are discussed below.

On September 25, 2020, Plaintiff commenced this action pursuant to CPLR 214-g, a statute enacted under the Child Victims Act (hereinafter "CVA"), against the Gates Chili Board of Education, Gates Chili Central School District and Gates Chili High School (hereinafter collectively "defendants"¹ ). Plaintiff's complaint asserts causes of action in negligence and intentional infliction of emotional distress.

Issue was joined, discovery completed, and on December 14, 2022, plaintiff and defendant each filed a Notice of Motion for summary judgement. Plaintiff seeks partial summary judgment as to defendants’ liability in negligence. Defendants seek summary judgement dismissing plaintiff's complaint. The Court will consider Defendants’ motion first.

It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence

185 N.Y.S.3d 916

of any material issues of fact" ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] [citations omitted]; see also Potter v. Zimber , 309 A.D.2d 1276, 764 N.Y.S.2d 736 [4th Dept. 2003] ). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" ( Giuffrida v. Citibank Corp. , 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772 [2003] [citing Alvarez , 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the responsive papers" ( Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] [citations omitted]; see also Hull v. City of N. Tonawanda , 6 A.D.3d 1142, 1142-43, 775 N.Y.S.2d 656 [4th Dept. 2004] ). When deciding a summary judgment motion, the evidence must be viewed in the light most favorable to the nonmoving party (see Russo v. YMCA of Greater Buffalo , 12 A.D.3d 1089, 784 N.Y.S.2d 782 [4th Dept. 2004] ). The court's duty is to determine whether an issue of fact exists, not to resolve it (see Barr v. County of Albany , 50 N.Y.2d 247, 428 N.Y.S.2d 665, 406 N.E.2d 481 [1980] ; Daliendo v. Johnson , 147 A.D.2d 312, 317, 543 N.Y.S.2d 987 [2d Dept. 1989] ).

Defendants’ primary contention in support of their motion for summary judgment is that the CVA does not revive plaintiff's claims. Defendants’ contend that "[t]he [CVA] permits plaintiffs to pursue claims if, and only if, the alleged conduct would be considered one of a number of enumerated Penal Law offenses.... it allows recovery for conduct that would constitute violations of Penal Law § 130 ...."² (Memorandum of Law in Support of Defendants’ Motion for Summary Judgement, pps. 2,5, NYSCEF Doc. No. 61). Defendant's argue, citing plaintiff's own pre-trial deposition testimony, that the alleged instances of sexual abuse here happened only after plaintiff reached the age of consent in New York, seventeen.³ Further, plaintiff characterized the instances of alleged abuse as consensual in her 1993 testimony before the Education Law § 3020-a panel.

Defendants’ maintain that the standard to determine whether plaintiff consented is found only in reference to the standards found in Penal Law (PL) § 130. Penal Law § 130 provides that a person less than seventeen years of age is deemed incapable of consenting to a sexual act (PL § 130.05[3][a]). The statute further provides that where a person is seventeen or over and is otherwise deemed capable of consenting to a sexual act, as defendants’ assert is the case here, lack of consent results when:

the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to

185 N.Y.S.3d 917

engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances

(PL § 130.05[2][d]).⁴

Defendants’ rely upon plaintiff's Education Law Section 3020-a hearing testimony in 1993 wherein plaintiff stated she consented to the kissing and sexual intercourse with Wilson, and point to the lack of any evidence that plaintiff "clearly expressed that ... she did not consent to engage in such act[s], and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances" (PL § 130.05[2][d]). Accordingly, defendants’ maintain that the alleged abuse by Wilson of plaintiff did not constitute a penal law violation because plaintiff was old enough to consent to them and did so consent.

Defendants’ maintain it is irrelevant that plaintiff testified at her deposition in this case that she, at the time of her 1993 testimony, believed consent related only to the use of force, and that she did not want to have sexual intercourse with Wilson at the times alleged. She did so, according to her deposition testimony, only as the result of Wilson's psychological manipulation and grooming. Defendants’ argue that psychological manipulation and grooming as described by plaintiff do not constitute a basis to find lack of consent under Penal Law § 130. In sum, therefore, defendants assert that plaintiff had consensual sexual intercourse and intimate kissing with Wilson at an age when she was old enough to consent, she did consent, no crime was committed, and this matter cannot be revived under CPLR 214-g.

CPLR 214-g, enacted as part of the Child Victims Act, provides a revival window for civil claims or causes of action that would otherwise be time barred under the statute of limitations. It provides that

Notwithstanding any provision of law which imposes a period of limitation to the contrary ..., every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age....

( CPLR 214-g ).

Defendants’ argument raises a question of a law that was recently decided by the Appellate Division in Anonymous v. Castagnola , 210 A.D.3d 940, 178 N.Y.S.3d 587 (2d Dept. 2022). In that case, plaintiff brought an action pursuant to the CVA against, in addition to individual defendants, the Brewster Central School District, Brewster Central School District Board of Education and Brewster High...