John Doe v. Hauppauge Union Free Sch. Dist.

213 A.D.3d 809

184 N.Y.S.3d 150

John DOE, appellant,

v.HAUPPAUGE UNION FREE SCHOOL DISTRICT, respondent, et al., defendant.

(Suffolk County Index No. 605541/21)

2021–07703

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

Argued—January 6, 2023

February 15, 2023

Gersowitz Libo & Korek, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Jillian Rosen, and Michael H. Zhu ], of counsel), for appellant.

Mulholland Minion Davey McNiff & Beyrer, Williston Park, NY (Matthew Williams of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent supervision, hiring, and retention, the plaintiff appeals from an order of the Supreme Court, Nassau County (Part CVA–R) (Steven M. Jaeger, J.), dated October 18, 2021. The order, insofar as appealed from, granted the motion of the defendant Hauppauge Union Free School District pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.

ORDERED that order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action, inter alia, to recover damages for negligent supervision, hiring, and retention against the defendant Hauppauge Union Free School District (hereinafter the district) and the defendant Mark Kimes based on an allegation that Kimes assaulted him when he was a high school student in the district and Kimes was employed by the district as a choral teacher. Specifically, the plaintiff alleged that on September 3, 2017, into September 4, 2017, he was physically and sexually assaulted by Kimes while attending a party at Kimes's home.

The district moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it. In an order dated October 18, 2021, the Supreme Court, inter alia, granted the motion on the ground that the complaint failed to state a cause of action insofar as asserted against the district. The plaintiff 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, 87–88, 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]; see Fuller v. Family Servs. of Westchester, Inc., 209 A.D.3d 983, 177 N.Y.S.3d 141 ).

Here, to the extent that the plaintiff purports to have alleged a cause of action against the district to recover damages for breach of a duty in loco parentis, this is not a cognizable cause of action under New York law. Rather, the concept of in loco parentis forms the basis of the duty owed by a school district to students within its charge in the context of a negligent supervision claim (see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; see also Boyle v. Brewster Cent. Sch. Dist., 209 A.D.3d 619, 619–620, 175 N.Y.S.3d 343 ; Giresi v. City of New York, 125 A.D.3d 601, 602–603, 3 N.Y.S.3d 88 ).

To the extent that the plaintiff alleged a cause of action against the district sounding in negligence based on allegations that the district owed him a duty of care, as an invitee on property that the district owned and/or operated, to safely manage its premises, and breached that duty by allowing Kimes to work on its premises, such cause of action was legally insufficient. The plaintiff's own allegations in the complaint, if accepted as true, demonstrated that the subject incident took place at Kimes's home (see Steven B. v. Westchester Day Sch., 196 A.D.3d 624, 625, 148 N.Y.S.3d 384 ).

Further, to the extent that the plaintiff alleged a negligent supervision cause of action against the district based on allegations that it failed to adequately supervise him and/or Kimes, such cause of action was legally insufficient, since the plaintiff's own allegations in the complaint, if accepted as true, demonstrated that the subject incident took place when the district had no custody or control of the plaintiff and no duty to monitor or supervise Kimes's conduct (see "John Doe 1" v. Board of Educ. of Greenport Union Free Sch. Dist., 100 A.D.3d 703, 705, 955 N.Y.S.2d 600 ; see also Pratt v. Robinson, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 ). Contrary to the plaintiff's contention, the complaint does not include factual allegations regarding any improper interactions between him and Kimes that took place on school grounds during school hours prior to the subject incident (cf. Johansmeyer v. New York City Dept. of Educ., 165 A.D.3d 634, 636, 85 N.Y.S.3d 562 ).

To the extent...