Preview
FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023
STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE
_________--------------------------------X Our File No. 18011DZSIB
N.J.S, an infant, by and through her
Parent and Natural Guardian,
MICHELE SARDO, and
MICHELE SARDO, Individually
Plaintiffs,
- vs - Index No.: 805265/2020
WEST SENECA CENTRAL SCHOOL DISTRICT,
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION AND
WEST SENIOR HIGH SCHOOL,
Defendants.
WEST SENECA CENTRAL SCHOOL DISTRICT,
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION AND
WEST SENIOR HIGH SCHOOL,
Third-Party Plaintiffs AFFIRMATION IN
vs SUPPORT
CHRYSTLER LEE STORTZ,
MICHAEL JAMES STORTZ,
BARBARA ANNE STORTZ and
HEATHER A. THIBEAULT a/k/a HEATHER A. STORTZ
Third-Party Defendants
_________________________________________Ç
LOUIS B. DINGELDEY JR., an attorney duly licensed to
practice law before the Courts of the State of New York, hereby
affirms the following to be true under penalties of perjury:
1. I am a partner of the law firm of BAXTER & SMITH, P.C.,
attorneys for the Defendants / Third-Party Plaintiffs, WEST
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SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL
DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL,
CSD"
(hereinafter, collectively, "West Seneca or "Defendants /
Third-Party Plaintiffs"), in the above-referenced action and, as
such, I am fully familiar with the facts and circumstances of
this case based upon a review of the file maintained by my
office.
2. I submit this Affirmation in support of the motion of
West Seneca CSD, for summary judgment, which seeks dismissal of
this action against the West Seneca CSD based upon Plaintiff's
failure to state a legally sufficient claim as against the moving
Defendant. Simply put, the subject incident, which involved a
sexual assault on the part of the Third-Party Defendant,
Chrystler Lee Stortz, against the Plaintiff, N.J.S., was not the
result of any negligence on the part of West Seneca CSD. The
moving Defendant was not on notice, constructive or otherwise,
that Chrystler Stortz presented a danger to N.J.S. and cannot be
found negligent. As such, this action should be dismissed as
against the moving Defendants / Third-Party Plaintiffs.
Plaintiffs'
3. The Defendants / Third-Party motion should
be granted, especially for the following reasons:
a. The evidence shows that West Seneca CSD had no prior
notice as to any similar dangerous conduct in the vein
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of sexual assault on the part of the Plaintiff,
N.J.S.'s, assailant, Chrystler Stortz;
b. Absent prior notice of the perpetrator having committed
similar dangerous or criminal conduct in the relatively
recent past, a school district is not responsible for
failing to prevent such conduct;
c. Discretionary determination by municipal or school
employees with regard to security measures are afforded
immunity and should not be second-guessed by the
Courts;
d. The Plaintiffs cannot prove causation as controlling
case law holds that the acts of a third-party, in this
case Chrystler Stortz, breaks any causal nexus between
any alleged negligence by the Defendants / Third-Party
Plaintiffs, absent specific notice as to such conduct,
which is indisputably lacking herein.
PROCEDURAL HISTORY AND PLEADINGS
4. The Plaintiffs served a Notice of Claim upon the
Defendant/Third-Party Plaintiff, West Seneca CSD, on or about July
22, 2019 (a copy of which is attached hereto as Exhibit "A").
5. The Plaintiffs then commenced this action by filing a
Summons and Complaint on or about June 3, 2020, (a copy of which
is attached hereto as Exhibit "B").
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6. The moving Defendant/Third-Party Plaintiff, West
Seneca CSD, joined issue and served an Answer, on or about June
19, 2020, (a copy of which is attached hereto as Exhibit "C") .
7. The moving Defendant/Third-Party Plaintiff, West
Seneca CSD, thereafter, brought a Third-Party Complaint against
Defendants, CHRYSTLER LEE STORTZ, MICHAEL JAMES STORTZ, BARBARA
ANN STORTZ AND HEATHER THIBEAULT a/k/a HEATHER A. STORTZ, on or
about January 19, 2021, (a copy of which is attached hereto as
Exhibit "D") .
8. Third-Party Defendant, HEATHER THIBEAULT a/k/a HEATHER
A. STORTZ, served an Answer to Defendant/Third-Party Plaintiff's
Complaint on or about March 26, 2021, (a copy of which is
attached hereto as Exhibit .1
"E")
9. Third-Party Defendant, CHRYSTLER LEE STORTZ, served an
Plaintiff'
Answer to Defendant/Third-Party s Complaint on or
about October 4, 2021, (a copy of which is attached hereto as
Exhibit "F") .
10. Third-Party Defendants, MICHAEL STORTZ AND BARBARA
STORTZ, filed a motion to dismiss on October 4, 2021. The Court
Defendants'
denied the Third-Party motion and an Order denying
same was filed with the Clerk's Office on March 24, 2023, (a copy
of which is attached as Rwhibit "G") .
We are in the process of finalizing a settlement regarding the claims against Ms. Thibeault and expect a
Stipulation will be filed shortly and that she will be removed from the caption and any further involvement in this
matter.
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11. Plaintiffs served a Verified Bill of Particulars,
dated November 16, 2020. They served a Supplemental Bill of
Particulars on September 29, 2023. Copies of these documents
are attached thereto as Exhibit "H".
12. Depositions of the parties and non-party witnesses, as
well as 50-h Hearings of the Plaintiffs were conducted. The
relevant deposition transcripts are provided herewith.
13. The 50-h Hearing of Plaintiff, Michele Sardo, was
taken on November 12, 2019. A copy of the transcript
(hereinafter "M. Sardo 50-h Hearing Trans.") is attached hereto
as Exhibit "I".
14. The 50-h Hearing of Plaintiff, N.J.S., was taken on
November 12, 2019. A copy of the transcript (hereinafter
"N.J.S. 50-h Hearing Trans.") is attached hereto as Exhibit "J".
15. The Plaintiff, Michele Sardo, also appeared for an
examination before trial on May 20, 2023. A copy of the
transcript (hereinafter (M. Sardo Depo. Trans.") is attached
hereto as Exhibit "K".
16. The Plaintiff, N.J.S., also appeared for an
examination before trial on May 20, 2023. A copy of the
transcript (hereinafter "N.J.S. Depo. Trans.") is attached
hereto as Exhibit "L".
17. Third-Party Defendant, CHRYSTLER LEE STORTZ, appeared
for an examination before trial on May 30, 2023. A copy of the
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transcript (hereinafter "C. Stortz Depo. Trans.") is attached
hereto as Exhibit "M".
18. The transcript of the deposition of moving Defendant,
West Seneca CSD's employee, Principal, JOHN BRINKER, which was
attached "N"
taken on May 31, 2023, is hereto as Exhibit
(hereinafter "Brinker Depo. Trans.").
19. The transcript of the deposition of the moving
Defendant, West Seneca CSD's Superintendent, MATTHEW J. BYSTRAK,
which was taken on June 13, 2023, is attached hereto as Exhibit
"O" (hereinafter "Bystrak Depo. Trans.").
20. Third-Party Defendant, HEATHER A. THIBEAULT, appeared
for an examination before trial on September 6, 2023. A copy of
the transcript is attached hereto as Exhibit "P".
21. Third-Party Defendant, MICHAEL JAMES STORTZ, appeared
for an examination before trial on August 24, 2023. A copy of the
transcript (hereinafter "M. Stortz Depo. Trans.") is attached
hereto as Exhibit "Q".
22. Third-Party Defendant, BARBARA ANNE STORTZ, appeared for
an examination before trial on August 24, 2023. A copy of the
transcript (hereinafter "B. Stortz Depo. Trans.") is attached
hereto as Exhibit "R".
23. The deposition transcript of non-party witness,
FRANCIS ROBLES, which was taken virtually on August 31, 2023, is
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"S"
attached hereto as Exhibit (Hereinafter "Robles Depo.
Trans.").
24. On September 29, 2023, the Plaintiffs filed the Note
of Issue signifying this matter's readiness for trial. A copy
of the Note of Issue is attached hereto as Exhibit "T".
25. The instant motion for summary judgment is being made
well prior to one-hundred twenty (120) days of the filing of the
Note of Issue and Certificate of Readiness for trial. Further,
it is being filed on or before November 1, 2023 and, as such, it
is timely per the rules and Scheduling Order of this Court as a
matter of law.
MATERIAL TESTIMONY AND RELEVANT EVIDENCE
Testimony of the Plaintiffs
26. We note that the Plaintiff, N.J.S., testified that she
had contact with Chrystler Stortz for approximately one to two
months. (See N.J.S. 50-h Hearing Trans., page 16, lines 5-14).
27. The Plaintiff, N.J.S., further described that she had
three physical encounters with Chrystler Stortz over a period of
approximately one month. (See Ex. J, N.J.S. 50-h Hearing
Trans., page 16, lines 15-18; page 20, lines, 10-13, page 40,
line 16 to page 41, line 2; page 43, lines 2-3). Her testimony
reflected alleged increasing levels of physical and sexual
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contacts over the course of the three physical encounters. (See
generally, Ex. J, N.J.S. 50-h Hearing Trans.).
28. Plaintiff, N.J.S., testified that Chrystler Stortz
first contacted her via unsolicited text messages. (See Ex. J,
N.J.S. 50-h Hearing Trans., page 14, line 19 to page 15, line
4).
29. She met him in person, after school hours, for the
first time approximately one week after receiving that initial
text message. (See Ex. J, N.J.S. 50-h Hearing Trans., page 16,
lines 12-19; page 17, lines 17-18).
30. N.J.S. testified that during their first encounter, that
there was no physical contact (i.e., nothing happened physically).
However, Chrystler Stortz expressed a romantic interest, including
suggesting that they have sex. The Plaintiff, N.J.S., told him no
and specifically indicated to him that they needed to "slow down".
(See Ex. J, N.J.S. 50-h Trans., page 18, line 9 to page 20, line
9).
31. Notably, the Plaintiff, N.J.S., testified that she did
not tell anyone at school that Chrystler had made a suggestion
about sex in the basement. (See Ex. page lines 8-
having J, 21,
14). N.J.S. also testified during her deposition that she had no
recollection of making anyone aware that she had spent time with
Chrystler Stortz during that first encounter. (See Ex. L, N.J.S.
Depo. Trans., page 44, lines 8-17).
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32. N.J.S. described that she continued to exchange text
messages with Chrystler Stortz after that first physical
meeting. (See Ex. J, N.J.S. 50-H Hearing Trans., page 21, line
15 to page 22, line 3). They decided to meet again after
school. (See Ex. J, N.J.S. 50-H Hearing Trans., page 20, lines
10-13). She further testified that during that weeklong
exchange of text messages, there were further suggestions by
Chrystler Stortz of poss bly engaging in sexual contact. The
Plaintiff, N. J.S., testified that she responded negatively to
these sexual suggestions and that he kept asking. (See Ex. J,
N.J.S. 50-H Hearing Trans., page 23, line 13 to page 24, line
14) .
33. N.J.S. testified that she and Chrystler Stortz had a
second physical meeting, approximately one week after the first,
which also occurred after regular school hours. ( See Ex. J,
N.J.S. 50-h Hearing Trans., page 22, lines 6 to page 23, line 6;
page 27, lines 13-17). During that second encounter, Chrystler
Stortz moved his hands down her the sides of her stomach and upper
body and then put his hand on her buttocks, at which point she
told him to stop, but he persisted in touching her. (See Ex. J,
page 29, line 17 to page 33, line 4). Chrystler Stortz then put
the Plaintiff's hand on his pants in the area of his privates.
The Plaintiff did not know how long the contact lasted. She tried
to pull her hand away, but Chrystler Stortz persisted. (See Ex.
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F., N.J.S. 50-h Trans., page 34, line 1 to page 36, line 5).
Chrystler Stortz then exposed his penis and forced the Plaintiff
to touch it. (See Ex. F., N.J.S. 50-h Trans., page 36, line 6 to
page 37, line 22).
34 . N. J. S. also testified that she spent approximately
twenty-five to thirty minutes with Chrystler Stortz during this
encounter. At no time during that encounter did she scream or
call out for help. (See Ex. F., N.J.S. 50-h Trans., page 38, line
5 to page 39, line 5) . During her deposition, the Plaintiff
testified that she was not certain as
Preview
FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE _________--------------------------------X Our File No. 18011DZSIB N.J.S, an infant, by and through her Parent and Natural Guardian, MICHELE SARDO, and MICHELE SARDO, Individually Plaintiffs, - vs - Index No.: 805265/2020 WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL, Defendants. WEST SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL, Third-Party Plaintiffs AFFIRMATION IN vs SUPPORT CHRYSTLER LEE STORTZ, MICHAEL JAMES STORTZ, BARBARA ANNE STORTZ and HEATHER A. THIBEAULT a/k/a HEATHER A. STORTZ Third-Party Defendants _________________________________________Ç LOUIS B. DINGELDEY JR., an attorney duly licensed to practice law before the Courts of the State of New York, hereby affirms the following to be true under penalties of perjury: 1. I am a partner of the law firm of BAXTER & SMITH, P.C., attorneys for the Defendants / Third-Party Plaintiffs, WEST 1 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 SENECA CENTRAL SCHOOL DISTRICT, WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND WEST SENIOR HIGH SCHOOL, CSD" (hereinafter, collectively, "West Seneca or "Defendants / Third-Party Plaintiffs"), in the above-referenced action and, as such, I am fully familiar with the facts and circumstances of this case based upon a review of the file maintained by my office. 2. I submit this Affirmation in support of the motion of West Seneca CSD, for summary judgment, which seeks dismissal of this action against the West Seneca CSD based upon Plaintiff's failure to state a legally sufficient claim as against the moving Defendant. Simply put, the subject incident, which involved a sexual assault on the part of the Third-Party Defendant, Chrystler Lee Stortz, against the Plaintiff, N.J.S., was not the result of any negligence on the part of West Seneca CSD. The moving Defendant was not on notice, constructive or otherwise, that Chrystler Stortz presented a danger to N.J.S. and cannot be found negligent. As such, this action should be dismissed as against the moving Defendants / Third-Party Plaintiffs. Plaintiffs' 3. The Defendants / Third-Party motion should be granted, especially for the following reasons: a. The evidence shows that West Seneca CSD had no prior notice as to any similar dangerous conduct in the vein 2 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 of sexual assault on the part of the Plaintiff, N.J.S.'s, assailant, Chrystler Stortz; b. Absent prior notice of the perpetrator having committed similar dangerous or criminal conduct in the relatively recent past, a school district is not responsible for failing to prevent such conduct; c. Discretionary determination by municipal or school employees with regard to security measures are afforded immunity and should not be second-guessed by the Courts; d. The Plaintiffs cannot prove causation as controlling case law holds that the acts of a third-party, in this case Chrystler Stortz, breaks any causal nexus between any alleged negligence by the Defendants / Third-Party Plaintiffs, absent specific notice as to such conduct, which is indisputably lacking herein. PROCEDURAL HISTORY AND PLEADINGS 4. The Plaintiffs served a Notice of Claim upon the Defendant/Third-Party Plaintiff, West Seneca CSD, on or about July 22, 2019 (a copy of which is attached hereto as Exhibit "A"). 5. The Plaintiffs then commenced this action by filing a Summons and Complaint on or about June 3, 2020, (a copy of which is attached hereto as Exhibit "B"). 3 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 6. The moving Defendant/Third-Party Plaintiff, West Seneca CSD, joined issue and served an Answer, on or about June 19, 2020, (a copy of which is attached hereto as Exhibit "C") . 7. The moving Defendant/Third-Party Plaintiff, West Seneca CSD, thereafter, brought a Third-Party Complaint against Defendants, CHRYSTLER LEE STORTZ, MICHAEL JAMES STORTZ, BARBARA ANN STORTZ AND HEATHER THIBEAULT a/k/a HEATHER A. STORTZ, on or about January 19, 2021, (a copy of which is attached hereto as Exhibit "D") . 8. Third-Party Defendant, HEATHER THIBEAULT a/k/a HEATHER A. STORTZ, served an Answer to Defendant/Third-Party Plaintiff's Complaint on or about March 26, 2021, (a copy of which is attached hereto as Exhibit .1 "E") 9. Third-Party Defendant, CHRYSTLER LEE STORTZ, served an Plaintiff' Answer to Defendant/Third-Party s Complaint on or about October 4, 2021, (a copy of which is attached hereto as Exhibit "F") . 10. Third-Party Defendants, MICHAEL STORTZ AND BARBARA STORTZ, filed a motion to dismiss on October 4, 2021. The Court Defendants' denied the Third-Party motion and an Order denying same was filed with the Clerk's Office on March 24, 2023, (a copy of which is attached as Rwhibit "G") . We are in the process of finalizing a settlement regarding the claims against Ms. Thibeault and expect a Stipulation will be filed shortly and that she will be removed from the caption and any further involvement in this matter. 4 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 11. Plaintiffs served a Verified Bill of Particulars, dated November 16, 2020. They served a Supplemental Bill of Particulars on September 29, 2023. Copies of these documents are attached thereto as Exhibit "H". 12. Depositions of the parties and non-party witnesses, as well as 50-h Hearings of the Plaintiffs were conducted. The relevant deposition transcripts are provided herewith. 13. The 50-h Hearing of Plaintiff, Michele Sardo, was taken on November 12, 2019. A copy of the transcript (hereinafter "M. Sardo 50-h Hearing Trans.") is attached hereto as Exhibit "I". 14. The 50-h Hearing of Plaintiff, N.J.S., was taken on November 12, 2019. A copy of the transcript (hereinafter "N.J.S. 50-h Hearing Trans.") is attached hereto as Exhibit "J". 15. The Plaintiff, Michele Sardo, also appeared for an examination before trial on May 20, 2023. A copy of the transcript (hereinafter (M. Sardo Depo. Trans.") is attached hereto as Exhibit "K". 16. The Plaintiff, N.J.S., also appeared for an examination before trial on May 20, 2023. A copy of the transcript (hereinafter "N.J.S. Depo. Trans.") is attached hereto as Exhibit "L". 17. Third-Party Defendant, CHRYSTLER LEE STORTZ, appeared for an examination before trial on May 30, 2023. A copy of the 5 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 transcript (hereinafter "C. Stortz Depo. Trans.") is attached hereto as Exhibit "M". 18. The transcript of the deposition of moving Defendant, West Seneca CSD's employee, Principal, JOHN BRINKER, which was attached "N" taken on May 31, 2023, is hereto as Exhibit (hereinafter "Brinker Depo. Trans."). 19. The transcript of the deposition of the moving Defendant, West Seneca CSD's Superintendent, MATTHEW J. BYSTRAK, which was taken on June 13, 2023, is attached hereto as Exhibit "O" (hereinafter "Bystrak Depo. Trans."). 20. Third-Party Defendant, HEATHER A. THIBEAULT, appeared for an examination before trial on September 6, 2023. A copy of the transcript is attached hereto as Exhibit "P". 21. Third-Party Defendant, MICHAEL JAMES STORTZ, appeared for an examination before trial on August 24, 2023. A copy of the transcript (hereinafter "M. Stortz Depo. Trans.") is attached hereto as Exhibit "Q". 22. Third-Party Defendant, BARBARA ANNE STORTZ, appeared for an examination before trial on August 24, 2023. A copy of the transcript (hereinafter "B. Stortz Depo. Trans.") is attached hereto as Exhibit "R". 23. The deposition transcript of non-party witness, FRANCIS ROBLES, which was taken virtually on August 31, 2023, is 6 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 "S" attached hereto as Exhibit (Hereinafter "Robles Depo. Trans."). 24. On September 29, 2023, the Plaintiffs filed the Note of Issue signifying this matter's readiness for trial. A copy of the Note of Issue is attached hereto as Exhibit "T". 25. The instant motion for summary judgment is being made well prior to one-hundred twenty (120) days of the filing of the Note of Issue and Certificate of Readiness for trial. Further, it is being filed on or before November 1, 2023 and, as such, it is timely per the rules and Scheduling Order of this Court as a matter of law. MATERIAL TESTIMONY AND RELEVANT EVIDENCE Testimony of the Plaintiffs 26. We note that the Plaintiff, N.J.S., testified that she had contact with Chrystler Stortz for approximately one to two months. (See N.J.S. 50-h Hearing Trans., page 16, lines 5-14). 27. The Plaintiff, N.J.S., further described that she had three physical encounters with Chrystler Stortz over a period of approximately one month. (See Ex. J, N.J.S. 50-h Hearing Trans., page 16, lines 15-18; page 20, lines, 10-13, page 40, line 16 to page 41, line 2; page 43, lines 2-3). Her testimony reflected alleged increasing levels of physical and sexual 7 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 contacts over the course of the three physical encounters. (See generally, Ex. J, N.J.S. 50-h Hearing Trans.). 28. Plaintiff, N.J.S., testified that Chrystler Stortz first contacted her via unsolicited text messages. (See Ex. J, N.J.S. 50-h Hearing Trans., page 14, line 19 to page 15, line 4). 29. She met him in person, after school hours, for the first time approximately one week after receiving that initial text message. (See Ex. J, N.J.S. 50-h Hearing Trans., page 16, lines 12-19; page 17, lines 17-18). 30. N.J.S. testified that during their first encounter, that there was no physical contact (i.e., nothing happened physically). However, Chrystler Stortz expressed a romantic interest, including suggesting that they have sex. The Plaintiff, N.J.S., told him no and specifically indicated to him that they needed to "slow down". (See Ex. J, N.J.S. 50-h Trans., page 18, line 9 to page 20, line 9). 31. Notably, the Plaintiff, N.J.S., testified that she did not tell anyone at school that Chrystler had made a suggestion about sex in the basement. (See Ex. page lines 8- having J, 21, 14). N.J.S. also testified during her deposition that she had no recollection of making anyone aware that she had spent time with Chrystler Stortz during that first encounter. (See Ex. L, N.J.S. Depo. Trans., page 44, lines 8-17). 8 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 32. N.J.S. described that she continued to exchange text messages with Chrystler Stortz after that first physical meeting. (See Ex. J, N.J.S. 50-H Hearing Trans., page 21, line 15 to page 22, line 3). They decided to meet again after school. (See Ex. J, N.J.S. 50-H Hearing Trans., page 20, lines 10-13). She further testified that during that weeklong exchange of text messages, there were further suggestions by Chrystler Stortz of poss bly engaging in sexual contact. The Plaintiff, N. J.S., testified that she responded negatively to these sexual suggestions and that he kept asking. (See Ex. J, N.J.S. 50-H Hearing Trans., page 23, line 13 to page 24, line 14) . 33. N.J.S. testified that she and Chrystler Stortz had a second physical meeting, approximately one week after the first, which also occurred after regular school hours. ( See Ex. J, N.J.S. 50-h Hearing Trans., page 22, lines 6 to page 23, line 6; page 27, lines 13-17). During that second encounter, Chrystler Stortz moved his hands down her the sides of her stomach and upper body and then put his hand on her buttocks, at which point she told him to stop, but he persisted in touching her. (See Ex. J, page 29, line 17 to page 33, line 4). Chrystler Stortz then put the Plaintiff's hand on his pants in the area of his privates. The Plaintiff did not know how long the contact lasted. She tried to pull her hand away, but Chrystler Stortz persisted. (See Ex. 9 of 45 FILED: ERIE COUNTY CLERK 11/01/2023 01:43 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 11/01/2023 F., N.J.S. 50-h Trans., page 34, line 1 to page 36, line 5). Chrystler Stortz then exposed his penis and forced the Plaintiff to touch it. (See Ex. F., N.J.S. 50-h Trans., page 36, line 6 to page 37, line 22). 34 . N. J. S. also testified that she spent approximately twenty-five to thirty minutes with Chrystler Stortz during this encounter. At no time during that encounter did she scream or call out for help. (See Ex. F., N.J.S. 50-h Trans., page 38, line 5 to page 39, line 5) . During her deposition, the Plaintiff testified that she was not certain as