Fuller v. Family Servs. of Westchester, Inc.

209 A.D.3d 983

177 N.Y.S.3d 141

Rodney FULLER, respondent,

v.FAMILY SERVICES OF WESTCHESTER, INC., appellant, et al., defendants.

2021–06905

Westchester County Index No. 54510/20

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

Submitted—October 6, 2022

October 26, 2022

Kasowitz Benson Torres LLP, New York, NY (Christian T. Becker, Patrick W. McDonald, and Rafaela Shane Fischman of counsel), for appellant.

Greenstein & Milbauer, LLP, New York, NY (Michael A. Barnett of counsel), for respondent.

COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, negligent hiring, and negligent training and supervision, the defendant Family Services of Westchester, Inc., appeals from an order of the Supreme Court, Nassau County (Part CVA–R) (Steven M. Jaeger, J.), dated August 16, 2021. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the first, second, and third causes of action insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendant Family Services of Westchester, Inc., which were pursuant to CPLR 3211(a)(7) to dismiss the first, second, and third causes of action insofar as asserted against it are granted.

The plaintiff commenced this action pursuant to CPLR 214–g, asserting, inter alia, causes of action alleging negligence (first cause of action), negligent hiring (second cause of action), and negligent training and supervision (third cause of action). The complaint alleged that when the plaintiff was between 10 and 12 years old, he was sexually abused by a youth mentor employed and referred to him by the defendant Family Services of Westchester, Inc. (hereinafter FSW).

FSW moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it. In an order dated August 16, 2021, the Supreme Court, inter alia, denied those branches of FSW's motion which were to dismiss the causes of action alleging negligence, negligent hiring, and negligent training and supervision insofar as asserted against it. FSW appeals.

In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the pleadings are afforded a liberal construction, the facts as alleged in the complaint are accepted as true, and the plaintiff is accorded the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; 106 N. Broadway, LLC v. Lawrence, 189 A.D.3d 733, 736, 137 N.Y.S.3d 148 ). However, "allegations consisting of bare legal conclusions ... are not entitled to any such consideration" ( Simkin v. Blank, 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 [internal quotation marks omitted]).

To sustain a cause of action sounding in negligent supervision of a child under the alleged facts of this case, the plaintiff must establish that the defendant "had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" ( George v. Windham, 169 A.D.3d 876, 877, 94 N.Y.S.3d 363 [internal quotation marks omitted]; see Andrew S. v. Gristina, 97 A.D.3d 651, 652, 950 N.Y.S.2d 137 ). Similarly, " ‘[t]o establish a cause of action based on negligent hiring, negligent retention, or negligent supervision [of an employee], it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury’ " ( S.C. v. New York City Dept. of Educ., 97 A.D.3d 518, 519–520, 949 N.Y.S.2d 71, quoting Shor v. Touch–N–Go Farms, Inc., 89 A.D.3d 830, 831, 933 N.Y.S.2d 686 ; see Sheppard v. United States Tennis Assn. Inc., 199 A.D.3d 846, 847, 154 N.Y.S.3d 251 ; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229...