Michael R. v. Westchester Day Sch.

196 A.D.3d 657

148 N.Y.S.3d 385 (Mem)

MICHAEL R. (Anonymous), appellant,

v.WESTCHESTER DAY SCHOOL, et al., respondents.

2020–05443

Index No. 63893/19

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

Argued—June 21, 2021

July 21, 2021

Michael G. Dowd (Sweeney Reich & Bolz LLP, Lake Success, N.Y. [Gerard J. Sweeney and Michael Reich ], of counsel), for appellant.

Fullerton Beck, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., of counsel), for respondents.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent supervision, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated May 13, 2020. The order granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging negligent failure to provide a safe and secure environment.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action asserting causes of action alleging negligent supervision, negligent retention, and negligent failure to provide a safe and secure environment. The plaintiff alleged that from 1970 to 1971, while he was a student at Westchester Day School (hereinafter WDS), he was sexually abused by Stanley Rosenfeld, an educator employed at WDS. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging negligent failure to provide a safe and secure environment. In an order dated May 13, 2020, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), we afford the pleading a liberal construction, accept all facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see id. § 3026; J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334, 970 N.Y.S.2d 733, 992 N.E.2d 1076 ; 260 Mamaroneck Ave., LLC v. Guaraglia, 172 A.D.3d 661, 662, 97 N.Y.S.3d 521 ).

Contrary to the plaintiff's contention, the Supreme Court properly directed the dismissal of the cause of action alleging negligent failure to provide a safe and secure environment, which, in effect, alleged liability under a theory of premises liability, as the complaint alleged that the sexual abuse occurred at Rosenfeld's apartment and not on WDS's premises (see generally Tarnaras v....