Preview
FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023
EXHIBIT U
FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
________________________________________________Ç
John Doe II,
Plaintiff,
-against-
HOLLAND CENTRAL SCHOOL DISTRICT, and Index No. 808184/2020
HOLLAND MIDDLE SCHOOL,
Defendants.
State of Colorado )
SS
County of Denver )
Affidavit of Sherryll Kraizer, Ph.D.
Sherryll Kraizer, Ph.D., being duly sworn, deposed, and states:
1. I am the founder and director of the Coalition for Children, a not-for-profit
organization working to prevent child abuse, sexual misconduct, bullying, and interpersonal
years'
violence. I have over 50 experience as a teacher, administrator, and researcher. I am an
expert in the field of prevention, recognition, and reporting of child abuse, sexual harassment,
and sexual assault. I am also an expert in the standard of care for educational organizations
including hiring, retention, policies and procedures, training, and supervision of staff and
students. I have been hired by Plaintiff's counsel, Herman Law, to offer my expert opinions on
standard-of-care-matters in this case. My CV is attached.
2. I have reviewed in this matter: the 1973 New York State Child Protective Services
Act (attached as Exhibit A), the 1978 New York State Department of Education ("NYSDOE") Child
Abuse & Neglect Resource Packet (attached as Exhibit B), the 1979 New York State Department
Neglect"
of Social Services ("NYSDSS") "Guidelines on Reporting Child Abuse and (attached as
Exhibit C). In addition, I have also reviewed, Plaintiff's Complaint, Verified Bill of Particulars, and
Answers to Interrogatories; the deposition transcripts of Christopher O'Brien, Brian Glover, R.L.,
Gail Lewis, Michael Lewis, Thomas Lewis, M.R., John Doe Ill, Leon Schiltz, T.S., Marc Smith, T.Y.,
Claudia Young, Ann Marie McNeill, Christopher Penziul, Margaret Fite, Maureen Mullen, Jeffrey
Dix, Corrinne Gallagher, John Doe 111, John Doe, David Mills, Mary B. Mills, Brian Tavernier, Eric
Lawton, E.U., Glenn Maue, James Coatsworth, Leonard Grieco, Suzanne Updike; Defendant's
Statement of Material Facts, Memorandum of Law in Support of MSJ, Affidavit in Support of MSJ,
Memorandum of Law in Reply, Reply Statement of Material Facts in Support of MSJ, and
FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023
Supplemental Memorandum of Law in Support of MSJ; Plaintiff's Statement of Material Facts,
Affirmation in Opposition to MSJ, and Supplemental Affirmation in Opposition to MSJ; and the
Court's Summary Judgment Decisions in E.U., T.S., and John Doe.
3. It is my opinion that the New York standard of care for a public school regarding
the prevention of sexual abuse of students by district employees is dependent on the facts of
each particular case, including what is known by and available to educational institutions in
general, and what is known by and available to each education institution in particular, during
the applicable period, in this case 1978-1981. The foregoing methodology is standard and typical
in the field of prevention, recognition, and reporting of child abuse, sexual harassment, and
sexual assault. Based on my review of the evidence and testimony regarding what was known by
and available to Holland Central School District ("HCSD") in the applicable period, it is my opinion
that HCSD deviated from the standard of care, resulting in the sexual abuse of Plaintiff.
Factual Background
4. Carl Penziul ("Penziul") was employed by HCSD from 1975-1981. On December 28,
1981, after being identified as a serial sexual predator, Penziul was not terminated but permitted
to resign his position with the District. Between 1977-1981, prior to his resignation, Penziul
exhibited the following behaviors towards male students at Holland Middle School ("HMS")
which demonstrated a pattern of risk to students:
" Babysitting E.U. at E.U.'s residence and spending the night.
" Driving E.U off campus in the middle of the school day.
" Driving male students off campus after school hours.
boys'
" Taking male students into the locker room.
" Being alone with male students in the classroom.
" Taking male students on non-sanctioned overnight trips.
" Engaging in sports activities on campus with male students.
" Giving gifts to male students.
5. HCSD knew about Penziul's out of school activities with students prior to the time
he received tenure in September 1978. In recommending him for tenure, HCSD wrote, "He finds
him."
time to be with students during out of school hours and in turn they work well for HCSD's
district employees, including Maureen Mullen, Leonard Grieco, Glenn Maue, and Mary Mills, also
knew about the following interactions between Penziul and male students from at least 1979
through 1981:
" Grieco and Maue, went to E.U.'s home to check on him when Penziul was there.
" Grieco knew Penziul was driving E.U. off campus in the middle of the school day.
" Mills knew Penziul was time alone with male students in his classroom.
spending
boys'
" Mullen knew that Penziul entered the locker room alone with male students.
boys'
" An unidentified teacher saw Penziul with a male student in the locker room.
2
FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023
" Mullen knew that Penziul was male students off
driving campus after school.
" Grieco, Mullen, and Maue knew Penziul went to the Boys Club of Holland.
" Mullen and Maue knew Penziul ran after-school sports activities at HMS.
" things"
Grieco knew Penziul was "buying for students.
" Grieco knew that Penziul took male students on weekend a trip to
trips, including
Canada.
6. During the spring of the 1980-1981school year, Penziul allegedly sexually abused
Plaintiff on at least two (2) occasions at HMS. During that time period, Penziul exhibited the
following behaviors with respect to Plaintiff which demonstrated a pattern of heightened risk to
Plaintiff:
" Being alone with Plaintiff in classrooms on several occasions.
" Driving Plaintiff off campus after school hours on several occasions.
" Taking Plaintiff on non-sanctioned overnight trips.
" Being involving in after school sports activities with Plaintiff.
Boys'
" Being involved with Plaintiff at the Club of Holland.
Standard of Care - to Child Protective Services
Reporting
7. The standard of care for New York school districts between 1978-1981 required
school officials, including teachers, to report suspected child abuse regardless of the identity of
the abuser. In 1973, New York State enacted The Child Protective Services Act. I was employed
within the New York City Public School System between 1973-1975, when this law was enacted
and implemented in public schools throughout New York State. The Act amended the Social
Services Law, provided for a central registry of child abuse and maltreatment cases, provided
procedures for investigating reports, provided procedures for reporting abuse and maltreatment
of children, and outlined protective actions. The purpose of the 1973 law states:
" "Abused and maltreated children in this state are in urgent need of an effective
child protective service to prevent them from suffering further injury and
impairment. It is the purpose of this title to encourage more complete reporting
of suspected child abuse and maltreatment and to establish in each county of the
state a child protective service capable of investigating such reports swiftly and
completely and capable of providing protection for the child or children from
further abuse or maltreatment and rehabilitative services for the child or children
involved."
and parents (Exhibit A, Bates ACSD0021820)
8. The Act's stated purpose is to protect children from all suspected child abuse and
maltreatment and to encourage reporting. While the Act focused on familial child sexual abuse,
it did not exclude teachers from reporting suspected sexual abuse by non-family members. For
example, the Act required school officials to include in their reports, "the name of the person or
known."
persons responsible for causing the injury, abuse or maltreatment, if (Exhibit A, Bates
3
FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023
ACSD0021823) (emphasis added). Furthermore, the NYSDOE issued a resource packet to every
school district in 1978 entitled, "School District Responsibilities in the Area of Child Abuse and
Neglect."
This document defined the forms of child abuse, listed the indicators for child abuse,
referenced resources for further staff education, and provided supplementary articles. The
NYSDOE resource packet stated, in part, the following:
neglect."
" "School personnel are required to report all suspected cases of child abuse and
(Exhibit B, Bates ACSD0021772) (emphasis added)
" "This Section of law basically provides that any professional staff member of the school
must report any situation in which they suspect that a child may be abused or
maltreated."
(Exhibit B, Bates ACSD0021775) (emphasis added)
9. In January 1979, the NYSDSS issued "Guidelines on Reporting Child Abuse and
Neglect,"
which summarized the child abuse and maltreatment reporting requirements. This
memo was provided to all school districts in New York State. In discussing "Who should report
maltreatment?"
abuse and the memo stated:
" Any person who has reasonable cause to suspect the child is abused or maltreated should
report this information to the New York State child abuse and maltreatment 1-
register,
800-342-3720. (Exhibit B, Bates ACSD0001197).
10. In my opinion, the standard of care required public school teachers to report
suspected child abuse regardless of the identity of the abuser. The Act did not require teachers
to inquire as to the identity of the abuser or determine whether a child was being abused by a
family or non-family member; rather, that was a determination to be made by Child Protective
Services. (Exhibit Bates ACSD0021827 - ACSD0021828). This was consistent with the Act's
A,
policy to encourage reporting by school officials, including teachers. This was also consistent with
my professional experience as a public school employee in New York State between 1973-1975.
Accordingly, by 1978, professional staff members of school districts were required to report any
situation in which they suspect a child may be abused or maltreated.
11. In my opinion, HCSD deviated from the standard of care between 1978-1981 by
failing to report Penziul to Child Protective Services. In particular, two teachers, Grieco and Maue,
came unannounced to a students home to check on the activities of a male teacher with a 12-
year-old student, which evidenced a level of concern about Penziul's activities that should have
prompted both teachers to report in accordance with their statutory duty and school district
guidelines. Based on my training and experience, such information provided HCSD with
abused"
"reasonable cause to suspect [a] child is within the meaning of the 1973 Act. (Exhibit B,
Bates ACSD0001197). It was reasonably foreseeable that Penziul would sexually abuse male
students during his employment with the district if suspected child abuse by Penziul were not
promptly reported to Child Protective Services. Additionally, the standard of care at the time
required that they contact Superintendent Arnold regarding their concerns.
4
FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023
Standard of Care- Reporting to Administrators
12. The standard of care in New York State school districts between 1978-1981,
required New York school districts to supervise and limit the conduct of district employees to
protect students from the foreseeable harm of sexual abuse by district employees. The standard
of care additionally required schoolteachers and staff to maintain appropriate boundaries with
students. The standard of care required school districts to employ safety strategies to prevent
children from sexual abuse by employees, which included: never to be in a one student/one
teacher situation, not taking children off school property in a one-to-one situation and
maintaining professional boundaries with all children. The standard of care also required district
employees to report all suspected child sexual abuse by a district employee against a student.
When a school district either suspected a district employee of engaging in inappropriate behavior
or received a report of sexual abuse by a district employee, the school district had a duty to
remove the employee from the school district pending a report to Child Protective Services
and/or the police and the outcome of any subsequent investigation.
13. In my opinion, HCSD deviated from the standard of care to supervise and limit the
conduct of Penziul, based on his known open flouting of the rules and norms of that time, to
protect students from sexual abuse, a known and foreseeable harm. There were multiple events
involving Penziul and male students, known by administrators and staff alike, that were a
legitimate cause for concern, including driving a male student off campus in the middle of the
boys'
school day, spending time alone with male students: on overnight trips out of town, in the
Boys' Holland-
locker room, in classrooms, and during sports activities at HMS and the Club of
and never engaging in similar conduct with female students. These events required reporting to
school administration for further investigation and re-establishing appropriate student/teacher
boundaries. Exercising the applicable standard of care, an investigation should have been
conducted and norms limiting interactions with male students outside of school should have
been reiterated to Penziul and enforced. District employees should have had an increased
concern regarding Penziu>s violations of boundaries with male students, particularly given that
teachers described him as immature, attention seeking, silly with students, wanting the students
[him.]"
to be his friends, and creating an environment where "the kids wanted to please It was
reasonably foreseeable that Penziul would sexually abuse male students in the absence of
corrective action by school administration. The corrective actions should have included: written
warnings, investigation, and enhanced supervision of his behavior with male students.
Standard of Care - Policies and Training
14. The standard of care for New York school districts between 1978-1981was to have
policies and training to protect students from the foreseeable harm of sexual abuse by district
employees. Specifically, the standard required school districts to have policies and trainings for
teachersregarding theirdutyto:1)recognizesigns of inappropriate relationshipsandchild sexual
abuse from any source, including school staff, 2) report to the police, child protective services,
and/or administrators for the protection of children in their school, and 3) employing safety
strategies to protect children from sexual abuse.
5
FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023
15. The 1978 NYSDOE Child Abuse & Neglect Resource Packet recognized the
prevalence of child sexual abuse and the critical role teachers play in reporting such abuse:
" "In 1976, 65% of the children found to be abused and neglected in New York State were
between five and eighteen years of age. Of the initial reports of suspected child abuse or
neglect 10% came from school officials. In order for school personnel to fulfill their
responsibilities toward abused and neglected children, they must know what constitutes
identification."
abuse or neglect, how to identify it, and what to do following (Exhibit B,
Bates ACSD0021776) (emphasis added).
16. The 1978 NYSDOE resource packet defined the forms of child abuse, listed the
indicators for child abuse, referenced resources for further staff education, and provided
supplementary articles. With respect to policies and training, the NYSDOE Resource Packet
provided the following:
" "Each district should also possess a written school policy which provides school personnel
with clear and adequate procedures for dealing with suspected cases of child abuse and
neglect."
(Exhibit B, Bates ACSD0021772).
" "It is recommended that each school district develop a written Child Abuse and Neglect
Policy to present to the School Board ... the adoption of this policy signifies that the School
Board and the administration are committed to protecting abused and neglected
children."
(Exhibit B, Bates ACSD0021776).
" "Intra-school procedures should be developed and disseminated. They should
Preview
FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023 EXHIBIT U FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE ________________________________________________Ç John Doe II, Plaintiff, -against- HOLLAND CENTRAL SCHOOL DISTRICT, and Index No. 808184/2020 HOLLAND MIDDLE SCHOOL, Defendants. State of Colorado ) SS County of Denver ) Affidavit of Sherryll Kraizer, Ph.D. Sherryll Kraizer, Ph.D., being duly sworn, deposed, and states: 1. I am the founder and director of the Coalition for Children, a not-for-profit organization working to prevent child abuse, sexual misconduct, bullying, and interpersonal years' violence. I have over 50 experience as a teacher, administrator, and researcher. I am an expert in the field of prevention, recognition, and reporting of child abuse, sexual harassment, and sexual assault. I am also an expert in the standard of care for educational organizations including hiring, retention, policies and procedures, training, and supervision of staff and students. I have been hired by Plaintiff's counsel, Herman Law, to offer my expert opinions on standard-of-care-matters in this case. My CV is attached. 2. I have reviewed in this matter: the 1973 New York State Child Protective Services Act (attached as Exhibit A), the 1978 New York State Department of Education ("NYSDOE") Child Abuse & Neglect Resource Packet (attached as Exhibit B), the 1979 New York State Department Neglect" of Social Services ("NYSDSS") "Guidelines on Reporting Child Abuse and (attached as Exhibit C). In addition, I have also reviewed, Plaintiff's Complaint, Verified Bill of Particulars, and Answers to Interrogatories; the deposition transcripts of Christopher O'Brien, Brian Glover, R.L., Gail Lewis, Michael Lewis, Thomas Lewis, M.R., John Doe Ill, Leon Schiltz, T.S., Marc Smith, T.Y., Claudia Young, Ann Marie McNeill, Christopher Penziul, Margaret Fite, Maureen Mullen, Jeffrey Dix, Corrinne Gallagher, John Doe 111, John Doe, David Mills, Mary B. Mills, Brian Tavernier, Eric Lawton, E.U., Glenn Maue, James Coatsworth, Leonard Grieco, Suzanne Updike; Defendant's Statement of Material Facts, Memorandum of Law in Support of MSJ, Affidavit in Support of MSJ, Memorandum of Law in Reply, Reply Statement of Material Facts in Support of MSJ, and FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023 Supplemental Memorandum of Law in Support of MSJ; Plaintiff's Statement of Material Facts, Affirmation in Opposition to MSJ, and Supplemental Affirmation in Opposition to MSJ; and the Court's Summary Judgment Decisions in E.U., T.S., and John Doe. 3. It is my opinion that the New York standard of care for a public school regarding the prevention of sexual abuse of students by district employees is dependent on the facts of each particular case, including what is known by and available to educational institutions in general, and what is known by and available to each education institution in particular, during the applicable period, in this case 1978-1981. The foregoing methodology is standard and typical in the field of prevention, recognition, and reporting of child abuse, sexual harassment, and sexual assault. Based on my review of the evidence and testimony regarding what was known by and available to Holland Central School District ("HCSD") in the applicable period, it is my opinion that HCSD deviated from the standard of care, resulting in the sexual abuse of Plaintiff. Factual Background 4. Carl Penziul ("Penziul") was employed by HCSD from 1975-1981. On December 28, 1981, after being identified as a serial sexual predator, Penziul was not terminated but permitted to resign his position with the District. Between 1977-1981, prior to his resignation, Penziul exhibited the following behaviors towards male students at Holland Middle School ("HMS") which demonstrated a pattern of risk to students: " Babysitting E.U. at E.U.'s residence and spending the night. " Driving E.U off campus in the middle of the school day. " Driving male students off campus after school hours. boys' " Taking male students into the locker room. " Being alone with male students in the classroom. " Taking male students on non-sanctioned overnight trips. " Engaging in sports activities on campus with male students. " Giving gifts to male students. 5. HCSD knew about Penziul's out of school activities with students prior to the time he received tenure in September 1978. In recommending him for tenure, HCSD wrote, "He finds him." time to be with students during out of school hours and in turn they work well for HCSD's district employees, including Maureen Mullen, Leonard Grieco, Glenn Maue, and Mary Mills, also knew about the following interactions between Penziul and male students from at least 1979 through 1981: " Grieco and Maue, went to E.U.'s home to check on him when Penziul was there. " Grieco knew Penziul was driving E.U. off campus in the middle of the school day. " Mills knew Penziul was time alone with male students in his classroom. spending boys' " Mullen knew that Penziul entered the locker room alone with male students. boys' " An unidentified teacher saw Penziul with a male student in the locker room. 2 FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023 " Mullen knew that Penziul was male students off driving campus after school. " Grieco, Mullen, and Maue knew Penziul went to the Boys Club of Holland. " Mullen and Maue knew Penziul ran after-school sports activities at HMS. " things" Grieco knew Penziul was "buying for students. " Grieco knew that Penziul took male students on weekend a trip to trips, including Canada. 6. During the spring of the 1980-1981school year, Penziul allegedly sexually abused Plaintiff on at least two (2) occasions at HMS. During that time period, Penziul exhibited the following behaviors with respect to Plaintiff which demonstrated a pattern of heightened risk to Plaintiff: " Being alone with Plaintiff in classrooms on several occasions. " Driving Plaintiff off campus after school hours on several occasions. " Taking Plaintiff on non-sanctioned overnight trips. " Being involving in after school sports activities with Plaintiff. Boys' " Being involved with Plaintiff at the Club of Holland. Standard of Care - to Child Protective Services Reporting 7. The standard of care for New York school districts between 1978-1981 required school officials, including teachers, to report suspected child abuse regardless of the identity of the abuser. In 1973, New York State enacted The Child Protective Services Act. I was employed within the New York City Public School System between 1973-1975, when this law was enacted and implemented in public schools throughout New York State. The Act amended the Social Services Law, provided for a central registry of child abuse and maltreatment cases, provided procedures for investigating reports, provided procedures for reporting abuse and maltreatment of children, and outlined protective actions. The purpose of the 1973 law states: " "Abused and maltreated children in this state are in urgent need of an effective child protective service to prevent them from suffering further injury and impairment. It is the purpose of this title to encourage more complete reporting of suspected child abuse and maltreatment and to establish in each county of the state a child protective service capable of investigating such reports swiftly and completely and capable of providing protection for the child or children from further abuse or maltreatment and rehabilitative services for the child or children involved." and parents (Exhibit A, Bates ACSD0021820) 8. The Act's stated purpose is to protect children from all suspected child abuse and maltreatment and to encourage reporting. While the Act focused on familial child sexual abuse, it did not exclude teachers from reporting suspected sexual abuse by non-family members. For example, the Act required school officials to include in their reports, "the name of the person or known." persons responsible for causing the injury, abuse or maltreatment, if (Exhibit A, Bates 3 FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023 ACSD0021823) (emphasis added). Furthermore, the NYSDOE issued a resource packet to every school district in 1978 entitled, "School District Responsibilities in the Area of Child Abuse and Neglect." This document defined the forms of child abuse, listed the indicators for child abuse, referenced resources for further staff education, and provided supplementary articles. The NYSDOE resource packet stated, in part, the following: neglect." " "School personnel are required to report all suspected cases of child abuse and (Exhibit B, Bates ACSD0021772) (emphasis added) " "This Section of law basically provides that any professional staff member of the school must report any situation in which they suspect that a child may be abused or maltreated." (Exhibit B, Bates ACSD0021775) (emphasis added) 9. In January 1979, the NYSDSS issued "Guidelines on Reporting Child Abuse and Neglect," which summarized the child abuse and maltreatment reporting requirements. This memo was provided to all school districts in New York State. In discussing "Who should report maltreatment?" abuse and the memo stated: " Any person who has reasonable cause to suspect the child is abused or maltreated should report this information to the New York State child abuse and maltreatment 1- register, 800-342-3720. (Exhibit B, Bates ACSD0001197). 10. In my opinion, the standard of care required public school teachers to report suspected child abuse regardless of the identity of the abuser. The Act did not require teachers to inquire as to the identity of the abuser or determine whether a child was being abused by a family or non-family member; rather, that was a determination to be made by Child Protective Services. (Exhibit Bates ACSD0021827 - ACSD0021828). This was consistent with the Act's A, policy to encourage reporting by school officials, including teachers. This was also consistent with my professional experience as a public school employee in New York State between 1973-1975. Accordingly, by 1978, professional staff members of school districts were required to report any situation in which they suspect a child may be abused or maltreated. 11. In my opinion, HCSD deviated from the standard of care between 1978-1981 by failing to report Penziul to Child Protective Services. In particular, two teachers, Grieco and Maue, came unannounced to a students home to check on the activities of a male teacher with a 12- year-old student, which evidenced a level of concern about Penziul's activities that should have prompted both teachers to report in accordance with their statutory duty and school district guidelines. Based on my training and experience, such information provided HCSD with abused" "reasonable cause to suspect [a] child is within the meaning of the 1973 Act. (Exhibit B, Bates ACSD0001197). It was reasonably foreseeable that Penziul would sexually abuse male students during his employment with the district if suspected child abuse by Penziul were not promptly reported to Child Protective Services. Additionally, the standard of care at the time required that they contact Superintendent Arnold regarding their concerns. 4 FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023 Standard of Care- Reporting to Administrators 12. The standard of care in New York State school districts between 1978-1981, required New York school districts to supervise and limit the conduct of district employees to protect students from the foreseeable harm of sexual abuse by district employees. The standard of care additionally required schoolteachers and staff to maintain appropriate boundaries with students. The standard of care required school districts to employ safety strategies to prevent children from sexual abuse by employees, which included: never to be in a one student/one teacher situation, not taking children off school property in a one-to-one situation and maintaining professional boundaries with all children. The standard of care also required district employees to report all suspected child sexual abuse by a district employee against a student. When a school district either suspected a district employee of engaging in inappropriate behavior or received a report of sexual abuse by a district employee, the school district had a duty to remove the employee from the school district pending a report to Child Protective Services and/or the police and the outcome of any subsequent investigation. 13. In my opinion, HCSD deviated from the standard of care to supervise and limit the conduct of Penziul, based on his known open flouting of the rules and norms of that time, to protect students from sexual abuse, a known and foreseeable harm. There were multiple events involving Penziul and male students, known by administrators and staff alike, that were a legitimate cause for concern, including driving a male student off campus in the middle of the boys' school day, spending time alone with male students: on overnight trips out of town, in the Boys' Holland- locker room, in classrooms, and during sports activities at HMS and the Club of and never engaging in similar conduct with female students. These events required reporting to school administration for further investigation and re-establishing appropriate student/teacher boundaries. Exercising the applicable standard of care, an investigation should have been conducted and norms limiting interactions with male students outside of school should have been reiterated to Penziul and enforced. District employees should have had an increased concern regarding Penziu>s violations of boundaries with male students, particularly given that teachers described him as immature, attention seeking, silly with students, wanting the students [him.]" to be his friends, and creating an environment where "the kids wanted to please It was reasonably foreseeable that Penziul would sexually abuse male students in the absence of corrective action by school administration. The corrective actions should have included: written warnings, investigation, and enhanced supervision of his behavior with male students. Standard of Care - Policies and Training 14. The standard of care for New York school districts between 1978-1981was to have policies and training to protect students from the foreseeable harm of sexual abuse by district employees. Specifically, the standard required school districts to have policies and trainings for teachersregarding theirdutyto:1)recognizesigns of inappropriate relationshipsandchild sexual abuse from any source, including school staff, 2) report to the police, child protective services, and/or administrators for the protection of children in their school, and 3) employing safety strategies to protect children from sexual abuse. 5 FILED: ERIE COUNTY CLERK 04/18/2023 01:36 PM INDEX NO. 808184/2020 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 04/18/2023 15. The 1978 NYSDOE Child Abuse & Neglect Resource Packet recognized the prevalence of child sexual abuse and the critical role teachers play in reporting such abuse: " "In 1976, 65% of the children found to be abused and neglected in New York State were between five and eighteen years of age. Of the initial reports of suspected child abuse or neglect 10% came from school officials. In order for school personnel to fulfill their responsibilities toward abused and neglected children, they must know what constitutes identification." abuse or neglect, how to identify it, and what to do following (Exhibit B, Bates ACSD0021776) (emphasis added). 16. The 1978 NYSDOE resource packet defined the forms of child abuse, listed the indicators for child abuse, referenced resources for further staff education, and provided supplementary articles. With respect to policies and training, the NYSDOE Resource Packet provided the following: " "Each district should also possess a written school policy which provides school personnel with clear and adequate procedures for dealing with suspected cases of child abuse and neglect." (Exhibit B, Bates ACSD0021772). " "It is recommended that each school district develop a written Child Abuse and Neglect Policy to present to the School Board ... the adoption of this policy signifies that the School Board and the administration are committed to protecting abused and neglected children." (Exhibit B, Bates ACSD0021776). " "Intra-school procedures should be developed and disseminated. They should