Kaul v. Brooklyn Friends Sch.

220 A.D.3d 936

199 N.Y.S.3d 117

Maya KAUL, respondent,

v.BROOKLYN FRIENDS SCHOOL, et al., appellants, et al., defendant.

2022–04339

Index No. 512634/20

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

Argued—September 19, 2023

October 25, 2023

Venable LLP, New York, NY (Michael J. Volpe and Doreen S. Martin of counsel), for appellants.

Rheingold Giuffra Ruffo & Plotkin LLP, New York, NY (Sherri L. Plotkin and Jeremy Hellman of counsel), for respondent.

ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, HELEN VOUTSINAS, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants Brooklyn Friends School and Vanessa Aird appeal from an order of the Supreme Court, Kings County (Deborah A. Kaplan, J.), dated March 31, 2022. The order, insofar as appealed from, granted the plaintiff's cross-motion pursuant to CPLR 3025 for leave to amend the complaint, and denied those branches of the motion of the defendants Brooklyn Friends School and Vanessa Aird which were, in effect, pursuant to CPLR 3211(a) to dismiss the first, second, third, and fifth causes of action in the amended complaint insofar as asserted against them.

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

"[O]n a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant ‘bears the initial burden of [establishing], prima facie, that the time in which to sue has expired’ " ( Schearer v. Fitzgerald, 217 A.D.3d 980, 981, 192 N.Y.S.3d 207, quoting Kogut v. Village of Chestnut Ridge, 214 A.D.3d 777, 778, 186 N.Y.S.3d 257 ). CPLR 214–g, enacted as part of the Child Victims Act (hereinafter the CVA), "provides a revival window for civil claims or causes of action alleging intentional or negligent acts or omissions that seek to recover damages for injuries suffered as a result of ‘conduct which would constitute a sexual offense as defined in article [130] of the penal law committed against a child less than eighteen years of age, incest as defined in section 255.27, 255.26 or 255.25 of the penal law committed against a child less than eighteen years of age, or the use of a child in a sexual performance as defined in section 263.05 of the penal law ’ " ( Anonymous v. Castagnola, 210 A.D.3d 940, 941, 178 N.Y.S.3d 587, quoting CPLR 214–g ; see S.H. v. Diocese of Brooklyn, 205 A.D.3d 180, 184, 167 N.Y.S.3d 171 ). Here, the plaintiff's causes of action were brought under the CVA, which revived the time to commence her civil action (see Meyer v. State of New York, 213 A.D.3d 753, 756, 183 N.Y.S.3d 521 ; Anonymous v. Castagnola, 210 A.D.3d at 942–943, 178 N.Y.S.3d 587 ). Accordingly, the Supreme Court properly denied those branches of the motion of the defendants Brooklyn Friends School (hereinafter BFS) and Vanessa Aird (hereinafter together the defendants) which were, in effect, pursuant to CPLR 3211(a)(5) to dismiss the causes of action to recover damages for negligent supervision, negligent hiring and retention, negligent training, and intentional infliction of emotional distress in the amended complaint insofar as asserted against them.

"On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Sullivan v. St. Ephrem R.C. Parish Church, 214 A.D.3d 751, 752, 186 N.Y.S.3d 226, quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Davila v. Orange County, 215 A.D.3d 632, 635, 187 N.Y.S.3d 261 ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 ; see Sullivan v. Port Wash. Union Free Sch. Dist., 213 A.D.3d 966, 967, 182 N.Y.S.3d 649 ).

"Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ( Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d 826, 827, 7 N.Y.S.3d 348 ; see Sullivan v. St. Ephrem R.C. Parish Church, 214 A.D.3d at 752, 186 N.Y.S.3d 226 ). "The standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information" ( Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d at 828, 7 N.Y.S.3d 348 ; see Sullivan v. St. Ephrem R.C. Parish Church, 214 A.D.3d at 753, 186 N.Y.S.3d 226 ). "Where the complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must allege 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" ( Sullivan v. St. Ephrem R.C. Parish Church, 214 A.D.3d at 753, 186 N.Y.S.3d 226 ; see Mirand v. City of New York, 84 N.Y.2d 44, 49, 614 N.Y.S.2d 372, 637 N.E.2d 263 ; Fuller v. Family Servs. of Westchester, Inc., 209 A.D.3d 983, 984, 177 N.Y.S.3d 141 ). Similarly, to establish a cause of action based on negligent hiring and 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" ( Shor v. Touch–N–Go Farms, Inc., 89 A.D.3d 830, 831, 933 N.Y.S.2d 686 ; see Fuller v. Family Servs. of Westchester, Inc., 209 A.D.3d at 984, 177 N.Y.S.3d 141 ).

The plaintiff alleged in the amended complaint, inter alia, that she was a student of BFS, that Aird and the nurse who allegedly abused the plaintiff were employees of BFS, that BFS knew or should have known about its employees’ propensity to engage in such conduct, and that the conduct occurred during school activities and during times at which the plaintiff was under BFS's supervision and care, custody, and control. Here, at the pleading stage of the litigation, where the plaintiff's allegations in the amended complaint are accepted as true and are accorded the benefit of every possible favorable inference, the causes of action to recover damages for negligent supervision, negligent hiring and retention, and negligent training of Aird and the nurse were sufficiently pleaded (see Davila v. Orange County, 215 A.D.3d at 635, 187 N.Y.S.3d 261 ; Novak v. Sisters of the Heart of Mary,...