Preview
FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF MADISON
JOHN DOE,
Plaintiff Index No. EF2020-1362
-VS-
CAZENOVIA CENTRAL SCHOOL DISTRICT by
and through its Agents, Officers, and/or Employees,
Defendant.
MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
DEMORE LAW FIRM, PLLC
Attorneys for Plaintiff
Office and Post Office Address
125 East Jefferson Street
Suite 900
Syracuse, New York 13202
Telephone (315) 413-7000
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PRELIMINARY STATEMENT
Plaintiff, John Doe, submits this Memorandum of Law in opposition to Defendant's
motion for Summary Judgment pursuant to N.Y. CPLR 3212.
Defendant's motion should be denied because there are undisputed material questions of
fact demonstrating that Defendant knew or should have known that: (1) Plaintiff, a minor, was
living with George Warner ("Warner"), an adult and Defendant's Business Manager; (2)
Defendant did not follow up with Plaintiff and/or Warner regarding their living arrangement; (3)
Defendant knew, or reasonably should have known, Warner brought Plaintiff with him to a semi-
annual conference in Albany in February of 1996 while Warner was acting within the scope of
his employment as Business Manager; (4) Defendant paid the expenses for the Albany trip; and
(5) Defendant knew, or reasonably should have known, of Warner's propensity to commit sexual
abuse.
FACTS
Defendant failed to submit a Statement of Material Facts in support of its motion for
Summary Judgment as required by 22 N.Y.C.R.R. 202.8-g. However, the relevant facts are fully
set forth in the Affidavit of Giancarlo Facciponte ("Facciponte Affidavit") (NYSCEF No. 42)
submitted in support of Defendant's motion, Plaintiff's Counter-Statement of Facts, and the
Attorney Affidavit of Timothy J. DeMore, Esq., submitted in opposition to Defendant's motion.
STANDARD OF REVIEW
Summary judgment may only "be granted if,upon all papers and proof submitted, the
cause of action or defense shall be established sufficiently to warrant the Court as a matter of law
in directing judgment in favor of any party." N.Y. CPLR 3212(b). Summary judgment is only
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appropriate where the movant establishes its entitlement to judgment as a matter of law "by
tender of evidentiary proof in admissible form." Zuckerman v. New York, 49 N.Y.2d 557, 562
(1980). The burden then shifts to the responding party to "produce evidentiary proof in
admissible form sufficient to require a trial of material questions of fact on which he rests his
claim . . . ." Id. In a motion for Summary Judgment the "facts must be viewed in the light most
favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc., v.
Rabizadeh, 22 N.Y.3d 470, 475 (2013) (quoting Vega v. Restani Constr. Corp., 18 N.Y.3d 499,
503 (2012)). Where there exist triable issues of fact, a motion for Summary Judgment must be
denied. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 767 (2016).
ARGUMENT
The Child Victims Act ("CVA") permitted civil actions brought by any person for
physical, psychological, or other injury suffered as a "result of conduct that would constitute a
sex crime, that was committed against such person when they were less than 18 years of age" to
be commenced against any party "whose intentional or negligent acts or omissions are alleged to
have resulted in the commission of [such] conduct" up until the date the plaintiff reaches the age
of fifty-five (55). S. H. v. Diocese of Brooklyn, 205 A.D.3d 180 (2d Dep't 2022). As part of the
CVA, CPLR 214-g was enacted and opened a one-year window reviving civil claims, such as
this one, alleging "intentional or negligent acts or omissions that seek to recover for injuries
suffered as a result of conduct which would constitute sex crimes, which conduct was committed
against a child less than 18 years of age, for which the statute of limitations had already run." Id.
(citing N.Y. CPLR 214-g).
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A Trial Court may deny a motion for Summary Judgment made by a Defendant school
district even if the sexual abuse by one of its employees occurred off school premises and outside
school hours, specifically when the infant plaintiff was alone with the employee during school
hours on a regular basis. See Johansmeyer v. New York City Dep't of Educ., 165 A.D.3d 634,
636 (2d Dep't 2018) (citing Tanaysha T v.City of New York, 130 A.D.3d 916 (2d Dep't 2015))
(question of fact existed regarding whether the Department of Education knew or reasonably
should have known of employee's propensity for sexual abuse). Additionally, triable issues of
fact exist where a defendant school district failed to conduct a thorough investigation if an
employee behaves inappropriately. Doe v. Chenango Val. Cent. Sch. Dist., 92 A.D.3d 1016,
1017 (3d Dep't 2012) (citing Doe v. Whitney, 8 A.D.3d 610 (2d Dep't 2004)). The adequacy of
the supervision of an employee of a school district is generally a factual issue for a jury to
resolve. Conklin v. Saugerties Cent. Sch. Dist., 106 A.D.3d 1424, 1426 (3d Dep't 2013) (citing
Mirand v. City of New York, 84 N.Y.2d 44, 51 (1994)).
Here, there exist material questions of fact regarding whether Defendant knew or
reasonably should have known of Warner's propensity to commit sexual abuse. Plaintiff was
introduced to Warner through his music teacher and employee of Defendant, Peter Ciarelli. Mr.
Ciarelli brokered a meeting between Plaintiff and Warner to discuss Plaintiff living with Warner
in his home. At the meeting, Mr. Ciarelli left Plaintiff and Warner alone in Warner's office in
the administrative wing of the school, an area that students typically did not frequent. During
this meeting, Plaintiff agreed to rent a room at Warner's home for $200 per month. Warner
would also be living in the house, and their rooms would be right next to each other. Facciponte
Affidavit Exhibit "1" NYSCEF No. 44 pp. 30-46.
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Defendant's employees, including, but not limited to, its Superintendent Charles Read,
knew that Plaintiff, a minor, was living with Warner, an adult, despite the fact it was uncommon
for a student to live with an administrator when they were not related. Additionally, Mr. Read
frequently saw Plaintiff in the administrative offices, including alone with Warner in his office
during the 1995 — 1996 school year. Exhibit "D" pp. 60-62; Facciponte Affidavit Exhibit "1"
NYSCEF No. 44 pp. 53-54. Mr. Read testified that generally there would be no reason for a
student to be in the Business Manager's office. Exhibit "D" p. 33. Mr. Read, nor anyone else
ever conducted an investigation or inquired on the status of Plaintiff living with Warner. Exhibit
"D" p. 61.
Additionally, Vicki Reutter, high school library media specialist, told a private
investigator hired by Plaintiff's previous attorneys, that she had discussions with Linda Holic, a
secretary in the Guidance Counselor's office, indicating that Warner had requested all files of
any student that had been involved in the Family Court system, such as Plaintiff. Facciponte
Affidavit Exhibit "3" NYSCEF No. 46. Superintendent Read testified that there would be no
reason for Warner, as the Business Manager, to request a student's records. Exhibit "D" p. 39.
Despite this, Defendant did nothing to investigate concerns of its employees that Warner was
inappropriately attempting to obtain files of vulnerable students, such as Plaintiff, when he had
no legitimate reason to do so.
There exist material questions of fact as to whether Warner requested private records of
students with history in the Family Court system, such as Plaintiff. However, it is undisputed
that Warner, as Business Manager, had no valid reason to request files of any student. Defendant
failed to investigate Ms. Holic's claim that Warner requested files for certain students.
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Defendant failed to investigate Plaintiff living with Warner, at his home, which was admittedly
highly unusual. Defendant failed to even inquire why Peter Ciarelli, the music teacher,
introduced Plaintiff to Warner for the sole purpose of living with Warner at his personal home,
or why Plaintiff frequently visited Warner's office in the administrative wing during the 1995 —
1996 school year.
Additionally, it is curious that Defendant failed to conduct any independent investigation
relating to Warner's sexual abuse of Plaintiff and the Disciplinary Charges against Warner do not
mention anything related to the sexual abuse as reason for Warner's termination. Facciponte
Affidavit Exhibit "6" NYSCEF No. 49. Defendant financially benefited from Warner's
employment and therefore had additional incentive to ignore and overlook his personal relationship
with a minor student. Defendant received royalties from software that Warner developed that was
used by the Cazenovia Central School District as well as other school districts. This unique business
arrangement between the Defendant and Warner further incentivized the Defendant to wholly
ignore Warner's dangerous and inappropriate relationship with the Plaintiff.
Although Defendant had some policies and procedures in place during the 1995 - 1996
school year when Plaintiff was abused by Warner, the Defendant was negligent in failing to comply
with those existing policies (e.g. failing to investigate the sexual harassment of a student by an
employee). Facciponte Affidavit Exhibit "8" NYSCEF No. 51 pp. 47-50. Defendant also failed to
have any policy in place against "relationships leading to excessive personal involvement" between
employees and students; this policy was only implemented after the abuse by Warner occurred.
Facciponte Affidavit Exhibit "8" NYSCEF No. 51 p. 17.
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Plaintiff submits that, based on the totality of the circumstances, he has met his burden to
demonstrate several issues of material fact preventing this Court from granting Summary Judgment.
With these facts viewed in the light most favorable to the Plaintiff, Defendant's motion for
Summary Judgment should be denied.
DATED: August 4, 2022
DEMO' FI
1
By:
Timothy J. DeMore
Attorneys for Plaintiff
Office and Post Office Address
125 East Jefferson Street
Suite 900
Syracuse, New York 13202
Telephone: (315) 413-7000
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CERTIFICATION OF WORD COUNT
I, Timothy J. DeMore, Esq., affirm that this Memorandum of Law submitted in
opposition to the motion for Summary Judgment submitted by Defendant consists of a total of
1,536 words, excluding the caption and signature block, and as such, it complies with the word
count limit prescribed by Section 202.8-b of the Uniform Civil Rules for the Supreme and
County Court.
DATED: August 4, 2022
Timothy J. DeMo
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Preview
FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MADISON JOHN DOE, Plaintiff Index No. EF2020-1362 -VS- CAZENOVIA CENTRAL SCHOOL DISTRICT by and through its Agents, Officers, and/or Employees, Defendant. MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DEMORE LAW FIRM, PLLC Attorneys for Plaintiff Office and Post Office Address 125 East Jefferson Street Suite 900 Syracuse, New York 13202 Telephone (315) 413-7000 87819.1 1 of 8 FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022 PRELIMINARY STATEMENT Plaintiff, John Doe, submits this Memorandum of Law in opposition to Defendant's motion for Summary Judgment pursuant to N.Y. CPLR 3212. Defendant's motion should be denied because there are undisputed material questions of fact demonstrating that Defendant knew or should have known that: (1) Plaintiff, a minor, was living with George Warner ("Warner"), an adult and Defendant's Business Manager; (2) Defendant did not follow up with Plaintiff and/or Warner regarding their living arrangement; (3) Defendant knew, or reasonably should have known, Warner brought Plaintiff with him to a semi- annual conference in Albany in February of 1996 while Warner was acting within the scope of his employment as Business Manager; (4) Defendant paid the expenses for the Albany trip; and (5) Defendant knew, or reasonably should have known, of Warner's propensity to commit sexual abuse. FACTS Defendant failed to submit a Statement of Material Facts in support of its motion for Summary Judgment as required by 22 N.Y.C.R.R. 202.8-g. However, the relevant facts are fully set forth in the Affidavit of Giancarlo Facciponte ("Facciponte Affidavit") (NYSCEF No. 42) submitted in support of Defendant's motion, Plaintiff's Counter-Statement of Facts, and the Attorney Affidavit of Timothy J. DeMore, Esq., submitted in opposition to Defendant's motion. STANDARD OF REVIEW Summary judgment may only "be granted if,upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party." N.Y. CPLR 3212(b). Summary judgment is only 2 87819.1 2 of 8 FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022 appropriate where the movant establishes its entitlement to judgment as a matter of law "by tender of evidentiary proof in admissible form." Zuckerman v. New York, 49 N.Y.2d 557, 562 (1980). The burden then shifts to the responding party to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim . . . ." Id. In a motion for Summary Judgment the "facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc., v. Rabizadeh, 22 N.Y.3d 470, 475 (2013) (quoting Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012)). Where there exist triable issues of fact, a motion for Summary Judgment must be denied. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 767 (2016). ARGUMENT The Child Victims Act ("CVA") permitted civil actions brought by any person for physical, psychological, or other injury suffered as a "result of conduct that would constitute a sex crime, that was committed against such person when they were less than 18 years of age" to be commenced against any party "whose intentional or negligent acts or omissions are alleged to have resulted in the commission of [such] conduct" up until the date the plaintiff reaches the age of fifty-five (55). S. H. v. Diocese of Brooklyn, 205 A.D.3d 180 (2d Dep't 2022). As part of the CVA, CPLR 214-g was enacted and opened a one-year window reviving civil claims, such as this one, alleging "intentional or negligent acts or omissions that seek to recover for injuries suffered as a result of conduct which would constitute sex crimes, which conduct was committed against a child less than 18 years of age, for which the statute of limitations had already run." Id. (citing N.Y. CPLR 214-g). 3 87819.1 3 of 8 FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022 A Trial Court may deny a motion for Summary Judgment made by a Defendant school district even if the sexual abuse by one of its employees occurred off school premises and outside school hours, specifically when the infant plaintiff was alone with the employee during school hours on a regular basis. See Johansmeyer v. New York City Dep't of Educ., 165 A.D.3d 634, 636 (2d Dep't 2018) (citing Tanaysha T v.City of New York, 130 A.D.3d 916 (2d Dep't 2015)) (question of fact existed regarding whether the Department of Education knew or reasonably should have known of employee's propensity for sexual abuse). Additionally, triable issues of fact exist where a defendant school district failed to conduct a thorough investigation if an employee behaves inappropriately. Doe v. Chenango Val. Cent. Sch. Dist., 92 A.D.3d 1016, 1017 (3d Dep't 2012) (citing Doe v. Whitney, 8 A.D.3d 610 (2d Dep't 2004)). The adequacy of the supervision of an employee of a school district is generally a factual issue for a jury to resolve. Conklin v. Saugerties Cent. Sch. Dist., 106 A.D.3d 1424, 1426 (3d Dep't 2013) (citing Mirand v. City of New York, 84 N.Y.2d 44, 51 (1994)). Here, there exist material questions of fact regarding whether Defendant knew or reasonably should have known of Warner's propensity to commit sexual abuse. Plaintiff was introduced to Warner through his music teacher and employee of Defendant, Peter Ciarelli. Mr. Ciarelli brokered a meeting between Plaintiff and Warner to discuss Plaintiff living with Warner in his home. At the meeting, Mr. Ciarelli left Plaintiff and Warner alone in Warner's office in the administrative wing of the school, an area that students typically did not frequent. During this meeting, Plaintiff agreed to rent a room at Warner's home for $200 per month. Warner would also be living in the house, and their rooms would be right next to each other. Facciponte Affidavit Exhibit "1" NYSCEF No. 44 pp. 30-46. -4 87819.1 4 of 8 FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022 Defendant's employees, including, but not limited to, its Superintendent Charles Read, knew that Plaintiff, a minor, was living with Warner, an adult, despite the fact it was uncommon for a student to live with an administrator when they were not related. Additionally, Mr. Read frequently saw Plaintiff in the administrative offices, including alone with Warner in his office during the 1995 — 1996 school year. Exhibit "D" pp. 60-62; Facciponte Affidavit Exhibit "1" NYSCEF No. 44 pp. 53-54. Mr. Read testified that generally there would be no reason for a student to be in the Business Manager's office. Exhibit "D" p. 33. Mr. Read, nor anyone else ever conducted an investigation or inquired on the status of Plaintiff living with Warner. Exhibit "D" p. 61. Additionally, Vicki Reutter, high school library media specialist, told a private investigator hired by Plaintiff's previous attorneys, that she had discussions with Linda Holic, a secretary in the Guidance Counselor's office, indicating that Warner had requested all files of any student that had been involved in the Family Court system, such as Plaintiff. Facciponte Affidavit Exhibit "3" NYSCEF No. 46. Superintendent Read testified that there would be no reason for Warner, as the Business Manager, to request a student's records. Exhibit "D" p. 39. Despite this, Defendant did nothing to investigate concerns of its employees that Warner was inappropriately attempting to obtain files of vulnerable students, such as Plaintiff, when he had no legitimate reason to do so. There exist material questions of fact as to whether Warner requested private records of students with history in the Family Court system, such as Plaintiff. However, it is undisputed that Warner, as Business Manager, had no valid reason to request files of any student. Defendant failed to investigate Ms. Holic's claim that Warner requested files for certain students. 5 87819.1 5 of 8 FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022 Defendant failed to investigate Plaintiff living with Warner, at his home, which was admittedly highly unusual. Defendant failed to even inquire why Peter Ciarelli, the music teacher, introduced Plaintiff to Warner for the sole purpose of living with Warner at his personal home, or why Plaintiff frequently visited Warner's office in the administrative wing during the 1995 — 1996 school year. Additionally, it is curious that Defendant failed to conduct any independent investigation relating to Warner's sexual abuse of Plaintiff and the Disciplinary Charges against Warner do not mention anything related to the sexual abuse as reason for Warner's termination. Facciponte Affidavit Exhibit "6" NYSCEF No. 49. Defendant financially benefited from Warner's employment and therefore had additional incentive to ignore and overlook his personal relationship with a minor student. Defendant received royalties from software that Warner developed that was used by the Cazenovia Central School District as well as other school districts. This unique business arrangement between the Defendant and Warner further incentivized the Defendant to wholly ignore Warner's dangerous and inappropriate relationship with the Plaintiff. Although Defendant had some policies and procedures in place during the 1995 - 1996 school year when Plaintiff was abused by Warner, the Defendant was negligent in failing to comply with those existing policies (e.g. failing to investigate the sexual harassment of a student by an employee). Facciponte Affidavit Exhibit "8" NYSCEF No. 51 pp. 47-50. Defendant also failed to have any policy in place against "relationships leading to excessive personal involvement" between employees and students; this policy was only implemented after the abuse by Warner occurred. Facciponte Affidavit Exhibit "8" NYSCEF No. 51 p. 17. 6 87819.1 6 of 8 FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022 Plaintiff submits that, based on the totality of the circumstances, he has met his burden to demonstrate several issues of material fact preventing this Court from granting Summary Judgment. With these facts viewed in the light most favorable to the Plaintiff, Defendant's motion for Summary Judgment should be denied. DATED: August 4, 2022 DEMO' FI 1 By: Timothy J. DeMore Attorneys for Plaintiff Office and Post Office Address 125 East Jefferson Street Suite 900 Syracuse, New York 13202 Telephone: (315) 413-7000 7 87819.1 7 of 8 FILED: MADISON COUNTY CLERK 08/04/2022 03:29 PM INDEX NO. EF2020-1362 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 08/04/2022 CERTIFICATION OF WORD COUNT I, Timothy J. DeMore, Esq., affirm that this Memorandum of Law submitted in opposition to the motion for Summary Judgment submitted by Defendant consists of a total of 1,536 words, excluding the caption and signature block, and as such, it complies with the word count limit prescribed by Section 202.8-b of the Uniform Civil Rules for the Supreme and County Court. DATED: August 4, 2022 Timothy J. DeMo -8 87819.1 8 of 8