Law Offices of Stephen J. McGiff

Justice Robert W. Doyle

SUFFOLK COUNTY
Supreme Court

Stephen J. McGiff, P.C.

Attorney For Plaintiffs

Guercio & Guercio

Attorneys For Defendant Connetquot School

Hamill O'Brien. Croutier, Et Al.

Attorneys For Defendant Savastano

Justice Doyle
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ORDERED that defendant Connetquot Central School District's motion for summary judgment dismissing plaintiffs' complaint and plaintiffs' cross motion against co-defendant Savastano on the issue of liability are decided as follows:

Plaintiff Laurie Belfiore commenced this action against the Connetquot Central School District ("the School District") on behalf of her minor daughter Nicole Belfiore ("Nicole") for personal injuries the minor sustained on October 20, 1997, when she was sexually assaulted by her third grade teacher, co-defendant Thomas Savastano. Among other things, plaintiffs' complaint alleges that the School District was negligent in its hiring and retention of the co-defendant; in allowing and permitting sexual abuse to occur on school property; and in allowing the co-defendant to teach and supervise students despite having notice of his abusive propensity. Plaintiffs also assert a derivative claim against the School District for loss of consortium related to the minor's injuries.

The School District now moves for summary judgment dismissing plaintiffs' complaint on the grounds that it neither broached its duty to supervise the minor nor failed to investigate prior complaints against the co-defendant. The School District also contends that it cannot be held liable for the co-defendant's actions under the theories of respondent superior or negligent retention because the co-defendant's acts were committed for personal motives unrelated to the furtherance of its business and the School District neither knew, or had reason to know, of the co-defendant's sexual propensity. In support of their motion defendants submit, inter alia, copies of the pleading; transcripts from the plaintiffs' deposition testimonies and 50-h hearings; the deposition testimony of a non-party witness, Monique Young, and an affidavit from Bethney Ruggiero, who was a student in the Connetquot School District at the time of the incident.

In opposition plaintiffs argue that the School District's motion should be denied because there are numerous issues of fact concerning whether the School District had notice of the co-defendant's propensity and whether the tortious acts committed by the co-defendant were done within the scope of his employment and in furtherance of his official duties. Plaintiffs' opposition also included the deposition transcript of Jo-Ann Croci, the Assistant Principal of the School at the time of the incident.

Plaintiffs also cross-moves for summary judgment against co-defendant Savastano on the ground that Savastano's prior criminal conviction precludes him from relitigating the issue of liability for his criminal acts.

Initially, it should be noted that the portion of plaintiffs' complaint relating to their claim for loss of consortium due to the minor's injuries must be dismissed since such claims are not recognized by common law (see, De Angelis v. Lutheran Med. Ctr., 58 NY2d 1053, 462 NYS2d 626 [1983]; see also, Dunphy v. J & I Sports Enters., 297 AD2d 23, 748 NYS2d 595 [2002]; Devito v. Opatich, 215 AD2d 714, 627 NYS2d 441 [1995]).

A school has a duty to adequately supervise students in its care and may be held liable for injuries that the foreseeable and proximately related to the school's failure to provide adequate supervision (see, Druba v. East Greenbush Cent Sch. Dist., 289 AD2d 767, 734 NYS2d 331 [2001]). The duty owned by a school to its student stems from the fact of its physical custody over the student. By taking physical custody of the child, the school has deprived the child of the protection of her parents or guardian. Therefore, the school is properly required to give the child the protection which its custody has deprived her (see, Pratt v. Robinson, 39 NY2d 554, 384 NYS2d 749 [1976]; Logan v. City of New York, supra). The standard to determine 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 identical situation and armed with the same information" (Dia CC v. Ithaca City Sch. Dist., 304 AD2d 955, 758 NYS2d 197 [2003]; Murray v. Research Found of State Univ. of NY, 283 AD2d 995, 723 NYS2d 805 [2001]; Mary KK v. Jack LL, 203 AD2d 840, 611 NYS2d 347 [1994]). Where liability is imposed on a school for negligent supervision due to injuries related to an individual's intentional acts. the plaintiff generally must demonstrate the school's prior knowledge or notice of the individual's propensity or likelihood to engage in such conduct so that the individual's acts could be anticipated or were foreseeable (see. Druba v. East Greenbush Cent. Sch. Dist., supra; Schrader v. Board of Educ. of Taconic Hills Cent. Sch. Dist., 249 AD2d 741, 671 NYS2d 785 [1998]).

Although the School District established that the co-defendant's act was not done in furtherance of the school's business such that it could not be held liable under the theory of respondent superior (see, N.X. v. Cabrini Med. Ctr., 97 NY2d 247, 739 NYS2d 348 [2002]; Dia CC v. Ithaca City Sch. Dist., supra; Ghaffari v. North Rockland Cent. School Dist., 23 AD3d 342, 804 NYS2d 752 [2005]), in opposition, plaintiffs have demonstrated the existence of an issue of fact as to whether the School District and its employees, namely, Mr Mandel (teacher) and Gerard Devlin (then acting Principal), had notice that the co-defendant previously touched another student, Moniquc Young, in a sexually inappropriate manner (see, N.X. v. Cabrini Med. Ctr., supra; Peter T v. Children's Vil. Inc., 30 AD3d 582, 819 NYS2d 44 [2006]; Doe v. Lorich, 15 AD3d 904, 788 NYS2d 754 [2005]). While Ms. Young testified that she did not inform anyone of Savastano's actions toward her, her testimony that Mr. Mandel subsequently informed her that Savastano wanted to apologize for what happened "because he was so use to hugging his wife and his daughter" indicates that Mr. Mandel had reason to know that Savastano may have anticipated allegations of inappropriate touching from the student but failed to question the student with a view to ensuring that she was not touched in a sexual manner. Furthermore, Ms. Young testified that sometime after falsely informing the co-defendant that principal Devlin knew about the sexual abuse, the co-defendant proceeded to take her to principal's office where she overheard Mr. Devlin loudly asking Savastano behind closed doors "How could you do that? Despite the lapse of time between Savastano's saga with Ms. Young and his subsequent sexual abuse of the plaintiff, whether the School District and its employees had notice of his propensity but breached its duty to provide adequate supervision and protection to the plaintiff is an issue of fact for the jury to resolve (see, N.X. v. Cabrini Med. Ctr., supra; Peter T v. Children's Vil. Inc., supra; Doe v. Lorich, supra; Doe v. Whitney, 8 AD3d 610, 779 NYS2d 570 [2004]). The existence of an issue of fact as to whether the School District and its employees had notice of the co-defendant's propensity also requires denial of the portion of its motion seeking to dismiss plaintiffs' claim for negligent hiring and retention (see, Peter T v. Children's Vil. Inc., supra; Doe v. Whitney, supra).

Accordingly, defendant is granted summary judgment with respect to the portion of plaintiffs' complaint seeking to hold the School District liable on the theory of respondent superior. However, defendant's motion is denied with respect to plaintiffs' remaining causes of action premised on negligent hiring and retention and failure to provide adequate supervision.

With regard to plaintiffs' cross motion, insofar as the "identity of the issue" has been identified and co-defendant Savastano failed to demonstrate that he did not have a full and fair opportunity to litigate said issue in the prior criminal action against him, plaintiffs' have established their prima facie entitlement to judgment against Savastano on the issue of liability (see, In re Nassau Ins. Co., 78 NY2d 888, 573 NYS2d 447 [1991]; Allstate Ins. Co. v. Zuk, 78 NY2d 41, 571 NYS2d 429 [1991]; D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 563 NYS2d 24 [1990]). Accordingly, plaintiffs' cross motion for summary judgment against co-defendant Savastano on the issue of liability is granted.

Nevertheless, the entry of judgment is to be held in abeyance pending resolution of plaintiffs' remaining claims against the School District.