S. K. v. Camp Shane, Inc.

1

2023 NY Slip Op 32910(U)

S. K., Plaintiff, v. CAMP SHANE, INC. and DOES 1-5 whose identities are unknown to Plaintiff, Defendants.

Index No. 59823/2020, Motion Seq. No. 002

Supreme Court, Westchester County

February 21, 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Unpublished Opinion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 & Exhibits..........................................................2

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

Nearly forty years ago, when plaintiff was 11 and 12 years old, a camp counselor engaged in sexual conduct with him at the Camp Shane sleepaway camp during two successive summers. At the time, plaintiff told no one of authority at the Camp of the incidents. When the Camp owners were finally alerted to the abuse several summers later, they removed the counselor from the Camp. Plaintiff returned to the Camp as a counselor for several years thereafter. Following the passage of the Child Victims Act in 2019, plaintiff brought this action against the Camp, alleging that its negligence led to the incidents. The Camp now moves, pursuant to CPLR 3212, for summary judgment dismissing the action against it. For the reasons set forth below, its motion is granted.

BACKGROUND

Plaintiff began attending Camp Shane in the summer of 1983 when he was 10 years old. ^[1] Peter Zaragoza was a counselor at the Camp. Zaragoza was in plaintiff's bunk that first summer but there was no sexual activity between the two.

The following summer, plaintiff again attended the Camp. During the latter half of that second summer, at Zaragoza's urging, plaintiff and Zaragoza masturbated in each other's presence in an office next to the stage in the Camp's auditorium. There were one or two other similar incidents that summer and, on at least one occasion, Zaragoza touched plaintiff's penis. All of this conduct occurred in the same office. Plaintiff did not tell anyone of these incidents.

Another individual, who attended the Camp in 1984 and 1985, has attested that in 1984 she saw Zaragoza alone with plaintiff in the office, hugging and kissing, and once saw ejaculate in a can in the office after she had walked in on the two of them. But the camper does not state that she informed any Camp employee of what she observed.

Plaintiff and Zaragoza returned to the Camp during the summer of 1985. Plaintiff informed Zaragoza that he did not wish to engage in any further sexual activity. After Zaragoza pleaded plaintiff agreed to kiss Zaragoza and Zaragoza performed oral sex on him. There were 4 or 5 subsequent sexual interactions between the two, during which Zaragoza would perform oral sex on plaintiff or they would masturbate in each other's presence. On each occasion the acts took place in the same office as before and was not observed by anyone. Towards the end of the summer, plaintiff repelled a sexual advance made by Zaragoza and no further incidents thereafter occurred. Plaintiff did not tell anyone of these episodes in 1985 except he may have discussed them with another camper who informed plaintiff of similar sexual incidents with Zaragoza.

Zaragoza did not work at the Camp in 1986, although plaintiff attended the Camp that year. During that summer, plaintiff told his girlfriend and another camper of the abuse, but there is no evidence that they informed anyone. Plaintiff did not attend the Camp in 1987.

In the summer of 1988, both plaintiff and Zaragoza attended the Camp. Plaintiff then informed Selma and Irving Ettenberg, the now-deceased owners of the Camp, as well as two head counselors, of the abuse that occurred the previous summers. Zaragoza was removed from the Camp.

Plaintiff thereafter attended the Camp for two more summers after 1988 as a counselor.

LEGAL ANALYSIS

As noted above, plaintiff was able to bring his action long after the claimed events as a result of New York State's enactment in 2019 of the Child Victims Act (L. 2019 c.11) ("CVA") which, inter alia, revived civil actions involving certain sex offenses committed against children under 18 for which the statute of limitations had already run. The CVA opened a window for victims of childhood sexual abuse to commence an action against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of the abuse. See Meyer v. State, A.D.3d, WL 1808072 (2d Dept. 2023).

Plaintiff's complaint against the Camp contains causes of action for negligence; negligent hiring supervision and retention; and negligent infliction of emotional distress. To prevail on each of these claims plaintiff must establish that the Camp was on notice of Zaragoza's propensity to sexually abuse minors at the Camp, such that his acts could be anticipated or were foreseeable. Nevaeh T. v. City of New York, 132 A.D.3d 840 (2d Dept. 2015). Because plaintiff has no evidence of such knowledge, actual or constructive, his claims must be dismissed.

A necessary element of a cause of action alleging negligent hiring, retention or supervision of an employee is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury. Fuller v. Family Services of Westchester, Inc., 209 A.D.3d 983 (2d Dept. 2022). 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 regarding the hiring and retention of the employee. Roe v. Domestic and Foreign Missionary Society of the Protestant Episcopal Church, 198 A.D.3d 698, 701 (2d Dept. 2021).

Specifically, with respect to plaintiff's claim alleging negligent hiring, "the duty to investigate a prospective employee, or to 'institute specific procedures for hiring employees,' is triggered only when the employer 'knows of facts that would lead a reasonably prudent person to investigate the prospective employee'." Sandra M. v. St. Luke's Roosevelt Hosp. Center, 33 A.D.3d 875, 879 (2d Dept. 2006).

Where, as here, a complaint also alleges negligent supervision of a child stemming from injuries related to an individual's intentional acts, "the plaintiff generally must demonstrate that the [defendant] 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." Nevaeh T. v. City of New York, 132 A.D.3d at 842, quoting Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d 826, 828 (2d Dept. 2015); see also Mirand v. City of New York, 84 N.Y.2d 44 (1994). "[S]chools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision." Osmanzai v. Sports and Arts in Schools Foundation, Inc., 116 A.D.3d 937 (2d Dept. 2014).

Here, plaintiff concedes that the abuse always occurred in an office, generally unobserved, and that he did not alert any Camp employee of the abuse. Plaintiff relies on two evidentiary submissions to support his opposition to the motion: (1) an affidavit from the camper who observed plaintiff and Zaragoza kissing and (2) testimony of the Ettenbergs' son, who worked part-time at the Camp during the relevant time. But the camper does not attest that she informed anyone of what she saw, reported any suspicions to anyone or observed others nearby. The Ettenbergs' son testified that campers were "never alone," they were "always with staff." But this does not assist plaintiff since he was not alone-he was with a Camp staffer, albeit someone who caused him harm, and there is no evidence that any Camp policy concerning his supervision was violated. The son also testified that he was unaware of any abuse by Zaragoza. The testimony submitted by both the Camp and plaintiff is consistent with the Camp's claim of lack of notice of any abuse by Zaragoza and is not contradicted.

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. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); 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 regardless of the sufficiency of the opposing papers. Alvarez, 68 N.Y.2d at 324; Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985); US Bank N.A. v. Weinman, 123 A.D.3d 1108 (2d Dept. 2014).

Furthermore, as a general rule, a defendant's burden cannot be satisfied merely by pointing to gaps in the plaintiff's proof, but must affirmatively demonstrate the merit of its claim or defense. Reed v. Watts Water Technologies, Inc., A.D.3d WL 219927 (2d Dept. 2023); Vittorio v. U-Haul Co., 52 A.D.3d 823 (2d Dept. 2008). Only when a movant has shown a prima facie right to summary judgment does the burden ordinarily shift to the opposing party to show that a factual dispute exists requiring a trial. 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).

Here it is a close question as to whether the Camp has met its burden. But given the atypical circumstances of this case, the heavy burden ordinarily placed on summary judgment ...