Sullivan v. Port Wash. Union Free Sch. Dist.

213 A.D.3d 966

182 N.Y.S.3d 649 (Mem)

Stacy SULLIVAN, respondent,

v.PORT WASHINGTON UNION FREE SCHOOL DISTRICT, et al., appellants.

2022–01558

Index No. 900153/21

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

Argued—January 30, 2023

February 22, 2023

Bond, Schoeneck & King, PLLC, Garden City, N.Y. (John F. McKay III, Brittany Frank, and Howard M. Miller of counsel), for appellants.

Slater Slater Schulman, LLP, Melville, N.Y. (Stephenie Lannigan Bross and Samantha A. Breakstone of counsel), for respondent.

ROBERT J. MILLER, J.P., LINDA CHRISTOPHER, BARRY E. WARHIT, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for negligent hiring, supervision, and retention, the defendants appeal from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered February 24, 2022. The order, insofar as appealed from, denied those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214–g ), alleging that in 1974, while she was a student at an elementary school in Port Washington, she was repeatedly sexually abused over a period of several months by a janitor at the school.

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" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Boyle v. North Salem Cent. Sch. Dist., 208 A.D.3d 744, 172 N.Y.S.3d 621 ; Doe v. Enlarged City Sch. Dist. of Middletown, 195 A.D.3d 595, 596, 144 N.Y.S.3d 639 ). "Whether a plaintiff can ultimately establish [his or her] 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 ). Causes of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity (see Boyle v. North Salem Cent. Sch. Dist., 208 A.D.3d at 745, 172 N.Y.S.3d 621 ; Doe v. Enlarged City Sch. Dist. of Middletown, 195 A.D.3d at 596, 144 N.Y.S.3d 639 ; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 162, 654 N.Y.S.2d 791 ).

The Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, alleging negligent hiring, supervision, and retention. Accepting the allegations in the complaint as true and according the plaintiff every possible favorable inference, the complaint sufficiently pleads a cause of action to recover damages for the negligent hiring, supervision, and retention of the janitor (see CPLR 3013 ; Novak v. Sisters of the Heart of Mary, 210 A.D.3d 1104, 1105–1106, 180 N.Y.S.3d 187 ; Boyle v. North Salem Cent. Sch. Dist., 208 A.D.3d at 745, 172 N.Y.S.3d 621 ).

However, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of...