BL Doe 5 v. Fleming

215 N.Y.S.3d 628

229 A.D.3d 1076

BL DOE 5, Plaintiff-Respondent,

v.Edwin D. FLEMING, Defendant, andRochester City School District, Defendant-Appellant.

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

Entered: July 3, 2024

Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), entered May 26, 2023. The order and judgment, among other things, denied the motion of defendant Rochester City School District for summary judgment dismissing the complaint against it.

COZEN O’CONNOR, NEW YORK CITY (AMANDA L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT.

BANSBACH LAW P.C., ROCHESTER (JOHN M. BANSBACH OF COUNSEL), AND O’BRIEN & FORD, BUFFALO, FOR PLAINTIFF-RESPONDENT.

PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this personal injury action pursuant to the Child Victims Act (see CPLR 214-g) alleging that she was sexually abused during a period from 1968 to 1970 by defendant Edwin D. Fleming (Fleming) while attending West High School in defendant Rochester City School District (defendant). Defendant filed a pre-answer motion to dismiss the complaint against it, which Supreme Court (Chimes, J.) denied. This Court, on a prior appeal, modified that order by granting those parts of the motion seeking to dismiss the second and third causes of action against defendant (BL Doe 5 v. Fleming, 199 A.D.3d 1426, 1427-1428, 154 N.Y.S.3d 595 [4th Dept. 2021]). Defendant did not challenge on appeal the denial of that part of the motion seeking to dismiss the first cause of action against defendant, for negligence (see id. at 1427, 154 N.Y.S.3d 595). After discovery, plaintiff moved for, inter alia, partial summary judgment on defendant’s liability, and defendant moved for summary judgment dismissing the complaint against it. Supreme Court (Schiano, Jr., J.), inter alia, denied plaintiff's motion to the extent that it sought partial summary judgment on liability and denied defendant’s motion. Defendant now appeals, as limited by its brief, from that part of the order and judgment that denied its motion. We affirm.

[1–4] Plaintiff's negligence cause of action is premised on two theories, specifically defendant’s alleged negligent supervision of plaintiff and defendant’s alleged negligent retention of Fleming, a music teacher employed by defendant. Both theories require consideration of whether Fleming’s misconduct was reasonably foreseeable. "Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994]; see Brandy B. v. Eden Cent. School Dist., 15 N.Y.3d 297, 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 [2010]). This duty "requires that the school exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances" (BL Doe 3 v. Female Academy of the Sacred Heart, 199 A.D.3d 1419, 1422, 158 N.Y.S.3d 474 [4th Dept. 2021] [internal quotation marks omitted]; see David v. County of Suffolk, 1 N.Y.3d 525, 526, 775 N.Y.S.2d 229, 807 N.E.2d 278 [2003]). A plaintiff may succeed on a claim of negligent supervision by establishing "that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury" (Mirand, 84 N.Y.2d at 49, 614 N.Y.S.2d 372, 637 N.E.2d 263). Further, although unanticipated third-party acts generally will not give rise to liability (see Brandy B., 15 N.Y.3d at 302, 907 N.Y.S.2d 735, 934 N.E.2d 304), a school district may nonetheless "be held liable for an injury that is the reasonably foreseeable consequence of circumstances it created by its inaction" (Doe v. Fulton School Dist., 35 A.D.3d 1194, 1195, 826 N.Y.S.2d 543 [4th Dept. 2006] [hereinafter Fulton School Dist.]; see Bell v. Board of Educ. of City of N.Y., 90 N.Y.2d 944, 946-947, 665 N.Y.S.2d 42, 687 N.E.2d 1325 [1997]; Mirand, 84 N.Y.2d at 49-51, 614 N.Y.S.2d 372, 637 N.E.2d 263; Murray v. Research Found of State Univ. of N.Y., 283 A.D.2d 995, 997, 723 N.Y.S.2d 805 [4th Dept. 2001], lv denied 96 N.Y.2d 719, 733 N.Y.S.2d 371, 759 N.E.2d 370 [2001]). Similarly, to establish a claim of negligent retention, "it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury" (Shapiro v. Syracuse Univ., 208 A.D.3d 958, 960, 173 N.Y.S.3d 769 [4th Dept. 2022] [internal quotation marks omitted]; see Pater v. City of Buffalo, 141 A.D.3d 1130, 1131, 36 N.Y.S.3d 323 [4th Dept. 2016], lv denied 29 N.Y.3d 911, 2017 WL 2468578 [2017]).

[5] Defendant contends that the court erred in concluding that there is a triable issue of fact whether it knew or should have known of Fleming’s propensity to sexually abuse minors. In support of its motion, defendant submitted, among other things, plaintiff's deposition wherein she testified that she never explicitly told anyone about the sexual abuse by Fleming during the time that it was occurring and, further, that the actual abuse took place, as relevant, after school hours in the back of a music room that was in a remote part of the school building. Although plaintiff also testified that, prior to her graduation, an orchestra teacher told her that he was aware of the abuse, defendant contends that the court erred in concluding that the orchestra teacher’s statement could be properly considered as a nonhearsay party admission of defendant under CPLR 4549 (see generally Watson v. Peschel, 188 A.D.3d 1693, 1695-1696, 135 N.Y.S.3d 736 [4th Dept. 2020]).

Specifically, plaintiff testified that the orchestra teacher offered her a ride home from a bus stop after an evening event at the school. Instead of taking her home, however, the orchestra teacher took her to a park where, according to plaintiff, he told her "that he knew what was going on because he could hear through the walls from the orchestra room into that back room [where Fleming’s office was located] and that [plaintiff] didn’t want it to get out – [plaintiff] wouldn’t want it to come out, so [she] should be nice to him." When plaintiff responded that she did not know what the orchestra teacher was talking about, he attempted to kiss her.

CPLR 4549 provides that "[a] statement offered against an opposing party shall not be excluded from evidence as hearsay if made … by the opposing party’s agent or employee on a matter within the scope of that relationship and during the existence of that relationship." The rule was enacted in 2021 with the intent of "caus[ing] New York’s hearsay exception to follow the approach of Federal Rule of Evidence 801(d)(2)(D)" (Senate Introducer’s Mem in Support of 2021 NY Senate Bill S7093; see also Mem of Off of Ct Admin in Support of 2021 NY Senate-Assembly Bill S7093/ A8040). Previously, in order for a statement by an employee or agent of a defendant to be admissible as a vicarious party admission, New York law required a showing that the declarant had "authority to speak on behalf of the defendant" (Cohn v. Mayfair Supermarkets, 305 A.D.2d 528, 529, 759 N.Y.S.2d 131 [2d Dept. 2008]; see Hyde v. Transcontinent Record Sales, Inc., 111 A.D.3d 1339, 1340, 974 N.Y.S.2d 727 [4th Dept. 2013]).

The court determined that the entirety of the statement attributed to the orchestra teacher was admissible as a vicarious party admission of defendant under CPLR 4549 and therefore properly considered when evaluating defendant’s motion for summary judgment, because the orchestra teacher was employed by defendant and "[r]ecognizing and responding to the abuse of students while on school grounds certainly falls within the scope of the duties of a teacher employed by [defendant]."

[6, 7] Contrary to defendant’s contention, CPLR 4549 does not predicate admissibility upon the location or timing of the utterance—whether on or off school grounds or during or after school hours. Indeed, while federal courts require a party seeking to invoke Federal Rules of Evidence rule 801 (d) (2) (D) to "establish (1) the existence of the agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency" (Pappas v. Middle Earth Condominium Assn., 963 F.2d 534, 537 [2d Cir. 1992] [emphasis added]), the legislature did not draft the statute so narrowly. Rather, as drafted, CPLR 4549 merely requires that the statement be uttered "during the existence of that [employment] relationship" (emphasis added) and does not also require that it be uttered during the "course" of the relationship—i.e., during work hours, as required by federal caselaw (see United States v. Rioux, 97 F.3d 648, 660 [2d Cir, 1996]; see also Pap- pas, 963 F.2d at 537; cf. Broome Lender LLC v. Empire Broome LLC, 220 A.D.3d 611, 611, 197 N.Y.S.3d 208 [1st Dept. 2023]). Had the legislature intended to mirror the test utilized by the Second Circuit, they certainly could have done so. They did not, and thus we give effect to the plain meaning of the statute as drafted.

[8] We conclude that it is within the scope of a teacher’s employment relationship to identify and assist a student who they believe is being sexually abused, and that the orchestra teacher’s statement indicating awareness of the abuse of plaintiff was therefore "on a matter within the scope of [the employment] relationship" (CPLR 4549). We further conclude that the orchestra teacher’s statement professing knowledge of the abuse occurred "during the existence of" the employment relationship, within the meaning of CPLR 4549, inasmuch as it is undisputed that he was employed by defendant at the time the statement was made. Therefore, we agree with the court that the statement is admissible pursuant to CPLR...