M.N. v. Suffolk Cnty. Sheriff's Dep't

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2023 NY Slip Op 32911(U)

M.N., Plaintiff, v. SUFFOLK COUNTY SHERIFF'S DEPARTMENT, Defendant.

Index No. 608712/2020, Mot. Seq. No. 002

Supreme Court, Suffolk County

July 12, 2023

Unpublished Opinion

DECISION AND ORDER

LEONARD D. STEINMAN, J.S.C.

The following papers, in addition to any memoranda of law and/or statement of material facts, were reviewed in preparing this Decision and Order:

Defendant's Notice of Motion, Affirmation &amp Exhibits…………………….………..1

Plaintiff's Affirmation in Opposition ………….……………………………………..2

Defendant's Reply........................................................................................................3

In this action, plaintiff alleges that he was sexually abused for six years by a neighbor of his mother's, Robert Weis commencing in approximately 1999 when plaintiff was 11 years old. Weis was a corrections officer employed by Suffolk County. Weis mainly abused plaintiff in Weis' home, but on various occasions Weis brought plaintiff to the jail where he worked-under the guise that plaintiff was his nephew-and abused plaintiff in the jail parking lot and bathroom. Suffolk County now moves for summary judgment, pursuant to CPLR 3212, on various grounds. Because the County has not met its prima facie burden of establishing that it had no notice of Weis' propensity to abuse jail visitors, the motion for summary judgment is denied.^[1]

LEGAL ANALYSIS

It is the movant who has the burden to establish an entitlement to summary judgment as a matter of law. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997). "CPLR §3212(b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material facts on every relevant issue raised by the pleadings, including any affirmative defenses." Stone v. Continental Ins. Co., 234 A.D.2d 282, 284 (2d Dept. 1996). Where the movant fails to meet its initial burden, the motion for summary judgment should be denied. US Bank N.A. v. Weinman, 123 A.D.3d 1108 (2d Dept. 2014).

A defendant's burden cannot be satisfied merely by pointing to gaps in the plaintiff's proof. In re New York City Asbestos Litigation (Carriero), 174 A.D.3d 461 (1st Dept. 2019); Vittorio v. U-Haul Co., 52 A.D.3d 823 (2d Dept. 2008).

Once a movant has shown a prima facie right to summary judgment, the burden shifts to the opposing party to show that a factual dispute exists requiring a trial, and such facts presented by the opposing party must be presented by evidentiary proof in admissible form. Zuckerman v. New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979).

Plaintiff's amended complaint contains one cause of action alleging negligence on the part of defendant, Suffolk County Sheriff's Department. Departments of a municipality, such as the Sheriff's Department, do not have a legal identity separate and apart from the municipality and, therefore generally cannot independently sue or be sued. Stevens v. Town of East Fishkill Police Department, 198 A.D.3d 832, 833 (2d Dept. 2021). Although the Sheriff's Department is simply an administrative arm of the County, the Second Department nonetheless has held that actions should not be dismissed based on this distinction where the municipal department is the only named defendant since "an action against the Sheriff's Department is, in effect, an action against the County itself." Maio v. Kralik, 70 A.D.3d 1 (2d Dept. 2009); see also CPLR §2001.

To sustain her negligence claims, plaintiff must allege and prove (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. Pasternack v. Lab. Corp. of Am. Holdings, 27 N.Y.3d 817, 825 (2016); Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985); see also, Turcotte v. Fell, 68 N.Y.2d 432, 437 (1986); Mitchell v. Icolari, 108 A.D.3d 600 (2d Dept 2013). The County's argument that it cannot be held vicariously liable for Weis' abuse is correct (see N.X. v. Cabrini Medical Center, 97 N.Y.2d 247, 251 (2002)), but does not end the required analysis.

Although an employer cannot be held vicariously liable 'for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,' the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee. . . . The employer's negligence lies in having 'placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention' of the employee.

Johansmeyer v. New York City Dept. of Ed., 165 A.D.3d 634 (2d Dept 2018) (internal citations omitted).

Because the County has submitted no evidence establishing that it lacked notice of Weis' propensity to commit sexual abuse in response to plaintiff's allegations, the court cannot assume that the County lacked such notice.^[2] The County has the burden as the moving party to affirmatively demonstrate that it had no notice, a burden that cannot be satisfied merely by pointing to gaps in the plaintiff's proof. Reed v. Watts Water Technologies, Inc., 212 A.D.3d 740 (2d Dept. 2023); Vittorio v. U-Haul Co., 52 A.D.3d 823 (2d Dept. 2008). Nor has the County proffered any evidence concerning its policies and procedures for visitors or whether employees can bring visitors to the jail.

Therefore, the central issue before this court is whether the County had a duty to the plaintiff. The County had no general duty to the plaintiff-who at the relevant time was not an inmate or otherwise in the County's custody-to ensure that its employees did not commit acts of abuse wholly unrelated to the employee's duties and off of the County's premises. See Doe v. Hauppauge Union Free School District, 213 A.D.3d 809 (2d Dept. 2023); Roe v. Domestic and Foreign Missionary Society of the Protestant Episcopal Church, 198 A.D.3d 698 (2d Dept. 2021)(nexus must exist between alleged attacker's employment and the sexual assault). Here, Weis befriended plaintiff in his neighborhood and home and his interactions with the plaintiff away from the jail had nothing to do with Weis' employment. The nexus that must be examined is Weis' abuse of plaintiff on County property.

"[I]f an employer knows that employees are using its property to injure others, especially during working hours, reasonable steps should be taken to prevent foreseeable harm." Waterbury v. New York City Ballet, Inc., 205 A.D.3d 154, 164 (1st Dept. 2022). A negligent hiring, retention or supervision claim does not require the existence of any particular relationship between the plaintiff and the defendant employer. "Rather, the defendant is responsible for the [foreseeable] harm its negligently hired employee causes to any third party." Sandra M. v. St. Luke's Roosevelt Hosp. Center, 33 A.D.3d 875, 879 (2d Dept. 2006). Since the County presented no evidence that it was unaware of Weis' proclivity to sexually abuse people in the jail its motion must be denied absent another persuasive legal defense.

The County argues that it has such a defense: it is purportedly immune from liability for its alleged negligence in hiring supervising and/or retaining Weis as a corrections officer. But courts in this State have recognized that a municipality may be liable for the negligent retention and supervision of a government employee with dangerous propensities. See Gonzales v. City of New York, 133 A.D.3d 65 (1st Dept. 2015); see also McCrink v. City of New York, 296 N.Y.99 (1947); Jones v. City of Buffalo, 267 A.D.2d 1101 (4th Dept. 1999); ...