Preview
FILED: MONROE COUNTY CLERK 02/01/2021 02:39 PM INDEX NO. E2020001689
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/01/2021
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2615889
Book Page CIVIL
Return To: No. Pages: 9
Rochester City School District
Instrument: MISCELLANEOUS DOCUMENT
Control #: 202102011078
Index #: E2020001689
Date: 02/01/2021
DOE, LG 41 Time: 3:24:51 PM
CITY OF ROCHESTER NEW YORK
ROCHESTER CITY SCHOOL DISTRICT
ROCHESTER CITY SCHOOL DISTRICT BOARD OF
EDUCATION
ENRICO FERMI SCHOOL NO. 17
GERST, LAWRENCE S
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
202102011078 Index #
INDEX : E2020001689
NO. E2020001689
FILED: MONROE COUNTY CLERK 02/01/2021 02:39 PM
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/01/2021
Following a Motion Term of the
Supreme Court of the State of New
York, held in the County of Monroe,
City of Rochester, at the Monroe
County Hall of Justice, on the 5th day
of January, 2021.
PRESENT: Hon. Deborah A. Chimes
Supreme Court Justice
STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
_____________________________________________
LG 41 DOE,
Plaintiff, ORDER
- against - Index No.: E2020001689
CITY OF ROCHESTER NEW YORK, ROCHESTER
CITY SCHOOL DISTRICT, ROCHESTER CITY
SCHOOL DISTRICT BOARD OF EDUCATION,
ENRICO FERMI SCHOOL NO. 17 and
LAWRENCE S. GERST,
Defendants.
______________________________________________
NOW the Defendants, Rochester City School District, Rochester City School District
Board of Education and Enrico Fermi School No. 17 (the “District Defendants”), having moved
pursuant to CPLR R 3211(a)(7), to dismiss the complaint of the Plaintiff, LG 41 Doe, as against
the District Defendants, with prejudice; and Plaintiff having cross-moved pursuant to CPLR R
3025(b) to amend the complaint; and
UPON reading the District Defendants’ Notice of Motion, dated July 7, 2020, ECF Doc.
No. 29, and the Affirmation of Alison K.L. Moyer, dated July 7, 2020, ECF Doc. No. 30; and
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E2020001689
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UPON reading Plaintiff’s Notice of Cross-Motion, dated November 24, 2020, ECF Doc.
No. 34, and the Affirmation of Amy C. Keller, Esq., dated November 24, 2020, ECF Doc. No. 35,
along with accompanying Exhibits, ECF Doc Nos. 36-47, and the Affidavit of the Plaintiff, sworn-
to on November 16, 2020, ECF Doc. No. 48; and
UPON the reading the Affirmation in Opposition to the Cross-Motion and Reply to the
Motion of the District Defendants, by Alison K.L. Moyer, dated December 23, 2020; and
UPON the motion and all related briefs having been considered following submission on
the papers, without oral argument, on January 5, 2021; and
UPON due deliberation thereon and upon the Court’s Decision, dated January 11, 2021,
filed January 12, 2021, ECF Doc. Nos. 51 and 52, which are identical decisions pertaining to ECF
Doc. Nos. 29 and 34; and ECF Doc. No. 51 being incorporated herein and attached hereto as
Exhibit “A,” it is hereby
ORDERED that the District Defendants’ motion to dismiss the complaint and Plaintiff’s
motion to amend are resolved as follows:
(1) The District Defendants’ motion to dismiss the First, Fifth, and Sixth
Causes of Action in the Complaint is granted, as to the District Defendants only, with
prejudice;
(2) The District Defendants’ motion to dismiss the Second, Third, and Fourth
Causes of Action is denied;
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(3) The District Defendants’ motion to dismiss Plaintiff’s claim for punitive
damages is granted, as to the District Defendants only, with prejudice; and
(4) Plaintiff’s motion for leave to amend the Complaint is granted.
Dated: February _____, 2021
Rochester, New York
HON. DEBORAH A. CHIMES, J.S.C.
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NYSCEF DOC. NO. 51
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EXHIBIT "A"
STATE OF NEW YORK
SUPREME COURT: COUNTY OF MONROE
____________________________________________________
LG 41 DOE
Plaintiff,
-vs- DECISION
Index No. E2020001689
City of Rochester New York,
Rochester City School District,
Rochester City School District
Board of Education,
Enricho Fermi School No. 17, and
Lawrence S. Gerst,
Defendant(s),
______________________________________________________
Decision
Defendants, Rochester City School District and Rochester City School
District Board of Education, (hereinafter, RCSD), made a motion to dismiss all
causes of action pursuant to CPLR 3211(a)(7) (NYSCEF motion 002). Plaintiff
opposed the motion and cross-moved to amend the Complaint (NYSCEF motion
003). RCSD opposed the cross-motion.
Plaintiff brought this claim pursuant to the Child Victims Act (CPLR 214-g).
According to the Complaint, plaintiff claims sexual abuse from 1986 to 1987 by
her art teacher, defendant, Lawrence S. Gerst, an employee of RCSD. Plaintiff
alleged the following causes of action against RCSD: Assault and battery, with
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punitive damages; negligent training, hiring, selecting and assignment of Gerst;
negligent retention of Gerst; negligent supervision of Gerst; vicariously liability for
the acts of Gerst; and vicarious liability for conferring power and authority to
teachers.
On a motion to dismiss for failure to state a cause of action under CPLR
3211 (a)(7), "[w]e accept the facts as alleged in the complaint as true, accord
plaintiff the benefit of every possible favorable inference, and determine only
whether the facts as alleged fit within any cognizable legal theory…Dismissal of
the complaint is warranted if the plaintiff fails to assert facts in support of an
element of the claim, or if the factual allegations and inferences to be drawn from
them do not allow for an enforceable right of recovery" (Connaughton v Chipotle
Mexican Grill, Inc., 29 N.Y.3d 137, 141-142 [2017]).
"As a general rule, employers are held vicariously liable for their employees'
torts only to the extent that the underlying acts are within the scope of the
employment." (Adams v New York City Transit Authority, 88 NY2d 116, 119
[1996]). Further, "[u]nder the doctrine of respondeat superior, an employer may be
vicariously liable for the tortious acts of its employees only if those acts were
committed in furtherance of the employer's business and within the scope of
employment." (Doe v Rohan, 17 AD3d 509, 512 [2d Dept 2005], lv denied 6
NY3d 701 [2005]). "Sexual abuse is a clear departure from scope of employment,
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'committed solely for personal reasons and unrelated to the furtherance of his
employer's business.'" (Torrey v Portville Cent. Sch., 2020 NY Slip Op 50244(U),
66 Misc. 3d 1225(A) [Sup. Ct. Erie County 2020] citing to Doe v Rohan, 17 AD3d
at 512; see also, Mazzarella v Syracuse Diocese, 100 AD3d 1384, 1385 [4th Dept
2012]; and Mary KK v Jack LL, 203 AD2d 840, 841 [3d Dept 1994]). As sexual
abuse of a student was outside Gerst's scope of employment, RCSD's motion is
granted with respect to the first, fifth and sixth causes of action.
Regarding the allegations of negligent hiring, retention and supervision, "An
employer may be liable for a claim of negligent hiring or supervision if an
employee commits an independent act of negligence outside the scope of
employment and the employer was aware of, or reasonably should have foreseen,
the employee's propensity to commit such an act" (Medical Care of W. N.Y. v
Allstate Ins. Co., 175 A.D.3d 878, 880 [4th Dept 2019]). Upon review of the
complaint, plaintiff pled the necessary elements to support the causes of action.
RCSD's motion to dismiss the second, third and fourth causes of action based on
negligence is denied.
As for punitive damages, " a municipality is not liable for punitive damages
flowing from its employees' misconduct in the absence of express legislative
authorization to the contrary" (Krohn v NY City Police Department, 2 NY3d 329,
336 [2004]). School Districts are public corporations and punitive damages cannot
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be assessed against them (see, Dixon v William Floyd Union Free School District,
136 AD3d 972, 973 [2nd Dept 2016]; Hargraves v Bath Central School District,
237 AD2d 977, 978 [4th Dept 1997]; and (Torrey v Portville Cent. Sch., 2020 NY
Slip Op 50244(U), 66 Misc. 3d 1225(A) [Sup. Ct. Erie County 2020]). Therefore,
RCSD's motion to dismiss plaintiff's claim for punitive damages is granted.
Plaintiff cross-moved for leave to amend the Complaint to add two
additional causes of action based on negligence and a cause of action for the failure
to report abuse pursuant to Social Services Law §§ 413 and 420. It is well
established that "[l]eave to amend a pleading should be freely granted in the
absence of prejudice to the nonmoving party where the amendment is not patently
lacking in merit" (Great Lakes Motor Corp. v Johnson, 156 AD3d 1369, 1370-71
[4th Dept 2017]). Here, where the case is at its very early stage, there is no
prejudice to defendants. In addition, the additional causes of action based on
negligence and for violation of the Social Services Law do not lack merit. (See,
Mirand v City of N.Y., 84 N.Y.2d 44, 49 [1994], stating "[s]chools are under a duty
to adequately supervise the students in their charge and they will be held liable for
foreseeable injuries proximately related to the absence of adequate supervision";
and Kimberly S.M. by Mariann D.M. v Bradford Central School, 226 A.D.2d 85,
91 [4th Dept 1996], holding "a mandated reporter is obligated to report suspected
cases of child sexual abuse based upon facts and circumstances within the
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knowledge of the reporter at the time the abuse is suspected and may be held liable
for a breach of that duty"). As such, plaintiff's motion for leave to amend is
granted.
Counsel for RCSD is to prepare and submit an Order on both motions in 30
days, attaching the Court's Decision.
DATED: Buffalo, New York
11
January_____, 2021
___________________________________
DEBORAH CHIMES
Justice of the Supreme Court
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Preview
FILED: MONROE COUNTY CLERK 02/01/2021 02:39 PM INDEX NO. E2020001689 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/01/2021 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2615889 Book Page CIVIL Return To: No. Pages: 9 Rochester City School District Instrument: MISCELLANEOUS DOCUMENT Control #: 202102011078 Index #: E2020001689 Date: 02/01/2021 DOE, LG 41 Time: 3:24:51 PM CITY OF ROCHESTER NEW YORK ROCHESTER CITY SCHOOL DISTRICT ROCHESTER CITY SCHOOL DISTRICT BOARD OF EDUCATION ENRICO FERMI SCHOOL NO. 17 GERST, LAWRENCE S Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 202102011078 Index # INDEX : E2020001689 NO. E2020001689 FILED: MONROE COUNTY CLERK 02/01/2021 02:39 PM NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/01/2021 Following a Motion Term of the Supreme Court of the State of New York, held in the County of Monroe, City of Rochester, at the Monroe County Hall of Justice, on the 5th day of January, 2021. PRESENT: Hon. Deborah A. Chimes Supreme Court Justice STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE _____________________________________________ LG 41 DOE, Plaintiff, ORDER - against - Index No.: E2020001689 CITY OF ROCHESTER NEW YORK, ROCHESTER CITY SCHOOL DISTRICT, ROCHESTER CITY SCHOOL DISTRICT BOARD OF EDUCATION, ENRICO FERMI SCHOOL NO. 17 and LAWRENCE S. GERST, Defendants. ______________________________________________ NOW the Defendants, Rochester City School District, Rochester City School District Board of Education and Enrico Fermi School No. 17 (the “District Defendants”), having moved pursuant to CPLR R 3211(a)(7), to dismiss the complaint of the Plaintiff, LG 41 Doe, as against the District Defendants, with prejudice; and Plaintiff having cross-moved pursuant to CPLR R 3025(b) to amend the complaint; and UPON reading the District Defendants’ Notice of Motion, dated July 7, 2020, ECF Doc. No. 29, and the Affirmation of Alison K.L. Moyer, dated July 7, 2020, ECF Doc. No. 30; and 202102011078 IndexNO. INDEX #: E2020001689 E2020001689 FILED: MONROE COUNTY CLERK 02/01/2021 02:39 PM NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/01/2021 UPON reading Plaintiff’s Notice of Cross-Motion, dated November 24, 2020, ECF Doc. No. 34, and the Affirmation of Amy C. Keller, Esq., dated November 24, 2020, ECF Doc. No. 35, along with accompanying Exhibits, ECF Doc Nos. 36-47, and the Affidavit of the Plaintiff, sworn- to on November 16, 2020, ECF Doc. No. 48; and UPON the reading the Affirmation in Opposition to the Cross-Motion and Reply to the Motion of the District Defendants, by Alison K.L. Moyer, dated December 23, 2020; and UPON the motion and all related briefs having been considered following submission on the papers, without oral argument, on January 5, 2021; and UPON due deliberation thereon and upon the Court’s Decision, dated January 11, 2021, filed January 12, 2021, ECF Doc. Nos. 51 and 52, which are identical decisions pertaining to ECF Doc. Nos. 29 and 34; and ECF Doc. No. 51 being incorporated herein and attached hereto as Exhibit “A,” it is hereby ORDERED that the District Defendants’ motion to dismiss the complaint and Plaintiff’s motion to amend are resolved as follows: (1) The District Defendants’ motion to dismiss the First, Fifth, and Sixth Causes of Action in the Complaint is granted, as to the District Defendants only, with prejudice; (2) The District Defendants’ motion to dismiss the Second, Third, and Fourth Causes of Action is denied; -2- 202102011078 IndexNO. INDEX #: E2020001689 E2020001689 FILED: MONROE COUNTY CLERK 02/01/2021 02:39 PM NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 02/01/2021 (3) The District Defendants’ motion to dismiss Plaintiff’s claim for punitive damages is granted, as to the District Defendants only, with prejudice; and (4) Plaintiff’s motion for leave to amend the Complaint is granted. Dated: February _____, 2021 Rochester, New York HON. DEBORAH A. CHIMES, J.S.C. -3- 202101130870 202102011078 Index Index# INDEX #:: E2020001689 NO. E2020001689 FILED: MONROE COUNTY CLERK 01/12/2021 02/01/2021 11:22 02:39 AM PM NYSCEF DOC. NO. 51 53 RECEIVED NYSCEF: 01/12/2021 02/01/2021 EXHIBIT "A" STATE OF NEW YORK SUPREME COURT: COUNTY OF MONROE ____________________________________________________ LG 41 DOE Plaintiff, -vs- DECISION Index No. E2020001689 City of Rochester New York, Rochester City School District, Rochester City School District Board of Education, Enricho Fermi School No. 17, and Lawrence S. Gerst, Defendant(s), ______________________________________________________ Decision Defendants, Rochester City School District and Rochester City School District Board of Education, (hereinafter, RCSD), made a motion to dismiss all causes of action pursuant to CPLR 3211(a)(7) (NYSCEF motion 002). Plaintiff opposed the motion and cross-moved to amend the Complaint (NYSCEF motion 003). RCSD opposed the cross-motion. Plaintiff brought this claim pursuant to the Child Victims Act (CPLR 214-g). According to the Complaint, plaintiff claims sexual abuse from 1986 to 1987 by her art teacher, defendant, Lawrence S. Gerst, an employee of RCSD. Plaintiff alleged the following causes of action against RCSD: Assault and battery, with -1- 2 of 6 202101130870 202102011078 IndexNO. INDEX #: E2020001689 E2020001689 FILED: MONROE COUNTY CLERK 01/12/2021 02/01/2021 11:22 02:39 AM PM NYSCEF DOC. NO. 51 53 RECEIVED NYSCEF: 01/12/2021 02/01/2021 punitive damages; negligent training, hiring, selecting and assignment of Gerst; negligent retention of Gerst; negligent supervision of Gerst; vicariously liability for the acts of Gerst; and vicarious liability for conferring power and authority to teachers. On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a)(7), "[w]e accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory…Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141-142 [2017]). "As a general rule, employers are held vicariously liable for their employees' torts only to the extent that the underlying acts are within the scope of the employment." (Adams v New York City Transit Authority, 88 NY2d 116, 119 [1996]). Further, "[u]nder the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." (Doe v Rohan, 17 AD3d 509, 512 [2d Dept 2005], lv denied 6 NY3d 701 [2005]). "Sexual abuse is a clear departure from scope of employment, -2- 3 of 6 202101130870 202102011078 IndexNO. INDEX #: E2020001689 E2020001689 FILED: MONROE COUNTY CLERK 01/12/2021 02/01/2021 11:22 02:39 AM PM NYSCEF DOC. NO. 51 53 RECEIVED NYSCEF: 01/12/2021 02/01/2021 'committed solely for personal reasons and unrelated to the furtherance of his employer's business.'" (Torrey v Portville Cent. Sch., 2020 NY Slip Op 50244(U), 66 Misc. 3d 1225(A) [Sup. Ct. Erie County 2020] citing to Doe v Rohan, 17 AD3d at 512; see also, Mazzarella v Syracuse Diocese, 100 AD3d 1384, 1385 [4th Dept 2012]; and Mary KK v Jack LL, 203 AD2d 840, 841 [3d Dept 1994]). As sexual abuse of a student was outside Gerst's scope of employment, RCSD's motion is granted with respect to the first, fifth and sixth causes of action. Regarding the allegations of negligent hiring, retention and supervision, "An employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee's propensity to commit such an act" (Medical Care of W. N.Y. v Allstate Ins. Co., 175 A.D.3d 878, 880 [4th Dept 2019]). Upon review of the complaint, plaintiff pled the necessary elements to support the causes of action. RCSD's motion to dismiss the second, third and fourth causes of action based on negligence is denied. As for punitive damages, " a municipality is not liable for punitive damages flowing from its employees' misconduct in the absence of express legislative authorization to the contrary" (Krohn v NY City Police Department, 2 NY3d 329, 336 [2004]). School Districts are public corporations and punitive damages cannot -3- 4 of 6 202101130870 202102011078 IndexNO. INDEX #: E2020001689 E2020001689 FILED: MONROE COUNTY CLERK 01/12/2021 02/01/2021 11:22 02:39 AM PM NYSCEF DOC. NO. 51 53 RECEIVED NYSCEF: 01/12/2021 02/01/2021 be assessed against them (see, Dixon v William Floyd Union Free School District, 136 AD3d 972, 973 [2nd Dept 2016]; Hargraves v Bath Central School District, 237 AD2d 977, 978 [4th Dept 1997]; and (Torrey v Portville Cent. Sch., 2020 NY Slip Op 50244(U), 66 Misc. 3d 1225(A) [Sup. Ct. Erie County 2020]). Therefore, RCSD's motion to dismiss plaintiff's claim for punitive damages is granted. Plaintiff cross-moved for leave to amend the Complaint to add two additional causes of action based on negligence and a cause of action for the failure to report abuse pursuant to Social Services Law §§ 413 and 420. It is well established that "[l]eave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit" (Great Lakes Motor Corp. v Johnson, 156 AD3d 1369, 1370-71 [4th Dept 2017]). Here, where the case is at its very early stage, there is no prejudice to defendants. In addition, the additional causes of action based on negligence and for violation of the Social Services Law do not lack merit. (See, Mirand v City of N.Y., 84 N.Y.2d 44, 49 [1994], stating "[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision"; and Kimberly S.M. by Mariann D.M. v Bradford Central School, 226 A.D.2d 85, 91 [4th Dept 1996], holding "a mandated reporter is obligated to report suspected cases of child sexual abuse based upon facts and circumstances within the -4- 5 of 6 202101130870 202102011078 IndexNO. INDEX #: E2020001689 E2020001689 FILED: MONROE COUNTY CLERK 01/12/2021 02/01/2021 11:22 02:39 AM PM NYSCEF DOC. NO. 51 53 RECEIVED NYSCEF: 01/12/2021 02/01/2021 knowledge of the reporter at the time the abuse is suspected and may be held liable for a breach of that duty"). As such, plaintiff's motion for leave to amend is granted. Counsel for RCSD is to prepare and submit an Order on both motions in 30 days, attaching the Court's Decision. DATED: Buffalo, New York 11 January_____, 2021 ___________________________________ DEBORAH CHIMES Justice of the Supreme Court -5- 6 of 6