Preview
FILED: CAYUGA COUNTY CLERK 04/19/2024
04/05/2024 10:03
03:58 AM
PM INDEX NO. E2019-1146
NYSCEF DOC. NO. 80
77 RECEIVED NYSCEF: 04/19/2024
04/05/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CAYUGA
___________________________________________
PAMELA O’GRADY,
Plaintiff,
DECISION, ORDER
& JUDGMENT
Index No. E2019-1146
vs.
AUBURN ENLARGED CITY SCHOOL DISTRICT,
AUBURN BOARD OF EDUCATION,
JOHN AND JANE DOE 1-30, teachers,
supervisors, employees, in their official and
individual capacities, whose identities are
presently unknown to Plaintiff,
THOMAS CAMP,
Defendants.
___________________________________________
AUBURN ENLARGED CITY SCHOOL DISTRICT,
AUBURN BOARD OF EDUCATION,
JOHN AND JANE DOE 1-30, teachers,
supervisors, employees, in their official and
individual capacities, whose identities are
presently unknown to Plaintiff,
Third-Party Plaintiffs,
vs.
THOMAS CAMP,
Third-Party Defendant.
____________________________________________
Submitted on March 25, 2024
Counsel:
Michael G. Dowd, Esq., Law Offices of Michael G. Dowd, for Plaintiff.
Georgia Kosmakos, Esq., Sweeney, Reich & Bolz LLP, Co-Counsel for Plaintiff.
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Nicole Marlow-Jones, Esq., Ferrara Fiorenza P.C., for Defendant/Third-Party
Plaintiffs Auburn Enlarged City School District, City of Auburn School District
Board of Education.
David M. Fulvio, Esq., Barclay Damon, LLP, for Defendant/Third-Party
Defendant Thomas Camp.
Joseph D. Waldorf, J.,
Beginning in or around 1978 and continuing through her high school
graduation in 1981, Pamela O’Grady (“Plaintiff”) alleges that Thomas Camp
(“Camp”) – then a teacher and band director at Auburn High School – sexually
abused her while she was a student. Plaintiff commenced the instant revived
action under the New York State Child Victims Act (CPLR 214-g) seeking
damages against Camp, the Auburn Enlarged City School District and the City
of Auburn School District Board of Education (“the District”). As against the
District, Plaintiff alleges causes of action sounding in negligent supervision (1st
Cause of Action), negligent retention (2nd Cause of Action), negligent failure to
train teachers, administrators, and students related to sexual abuse (3rd
Cause of Action), negligent failure to provide a safe and secure environment
(4th Cause of Action), and failure to report child abuse (5th Cause of Action).
Before the Court is the District’s motion for summary judgment pursuant to
CPLR 3212 dismissing Plaintiff’s complaint. Plaintiff concedes it cannot seek
punitive damages against the District but otherwise opposes the motion. For
the reasons that follow, the District’s motion for summary judgment is
GRANTED in part and DENIED in part.
A “proponent of a summary judgment motion must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient
evidence to demonstrate the absence of any material issues of fact”
necessitating a trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; CPLR
3212 [b]). Proof offered by the moving party must be in admissible form (See
Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Dix v Pines Hotel, Inc.,
188 AD2d 1007 [4th Dept 1992]). Once a prima facie showing has been made,
“the burden shifts to the party opposing the motion for summary judgment to
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produce evidentiary proof in admissible form sufficient to establish the
existence of material issues of fact which require a trial of the action.” (Alvarez,
68 NY2d at 324; see also, Mortillaro v Rochester Gen. Hosp., 94 AD3d 1497,
1499 [4th Dept 2012].)
With respect to Plaintiff’s negligent supervision cause of action, “[a]
school district has the duty to exercise the same degree of care and supervision
over pupils under its control as a reasonably prudent parent would exercise
under the same circumstances.” (Lisa P. v Attica Cent. School Dist., 27 AD3d
1080, 1081 [4th Dept 2006].) And the test for whether or not that duty was
breached looks to if “a parent of ordinary prudence placed in an identical
situation and armed with the same information would invariably have provided
greater supervision.” (Murray v Research Found. of State Univ. Of N.Y., 283
AD2d 995, 996-97 [4th Dept 2001]). And with respect to both Plaintiff’s
negligent supervision cause of action and her negligent retention cause of
action, to establish entitlement to judgment as a matter of law the District
must offer proof in admissible form that it neither knew nor should have
known of Camp’s propensity to sexually abuse children (See e.g., Dolgas v
Wales, 215 AD3d 51, 55 [3d Dept 2023]; Lisa P. v Attica Cent. School Dist., 27
AD3d 1080, 1081 [4th Dept 2006]). Typically, rumor, innuendo, or gossip in
the community will not be enough to establish a school district’s actual or
constructive knowledge or notice of an employee’s propensity or likelihood to
engage in sexually abusive behavior of students and summary judgment in
favor of the school district on such a record would be appropriate (See e.g.,
Doglas, 215 AD3d at 56).
But such is not the instant record. Indeed, summary judgment would be
inappropriate where there is “some foundation upon which the question of
foreseeability of harm may be predicated, i.e., at least a minimal showing as to
the existence of actual or constructive notice.” (Steinborn v Himmel, 9 AD3d
531, 534 [3d Dept 2004]). Such is the case here. The District’s own
submissions raise triable issues of fact warranting denial of its motion to the
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extent it is directed against Plaintiff’s negligent supervision and negligent
retention causes of action without the necessity of considering the sufficiency
of Plaintiff’s opposition papers.
For instance, Plaintiff testified that a school official “walked in [the band
room while she]…was having lunch with [Camp] at his desk sitting on his lap
until they came in the door…A few days after that they put windows in the
doors…to the band office.” (Doc. No. 47, Plaintiff’s EBT at 240:20 to 241:1).
Additionally, former District Superintendent Peter Kachris testified that
Assistant Principal Dixon informed him that Camp and Plaintiff “were seen
together very often, and that this raised questions about whether or not
[Camp’s] behavior was appropriate.” (Doc. No. 48, Former Superintendent
Kachris EBT at 20:19-21). Former Superintendent Kachris testified “that we
keep an eye on the situation…because [a staff member] believed that there was
inappropriate behavior…[t]hat there was sexual harassment, sexual
misconduct.” (Doc. No. 48, Former Superintendent Kachris EBT at 22:20 to
23:2). Such evidence provides “some foundation upon which the question of
foreseeability of harm may be predicated, i.e., at least a minimal showing as to
the existence of actual or constructive notice.” (Steinborn v Himmel, 9 AD3d
531, 534 [3d Dept 2004]).
As such, the District’s submissions raise an issue of fact as to its actual
or constructive notice of Camp’s alleged propensity or likelihood to subject
Plaintiff to sexually abusive behavior (See generally e.g., Lisa P. v Attica Cent.
School Dist., 27 AD3d 1080, 1081-82 [4th Dept 2006]). The instant record is
not one where the school had “[k]knowledge that the employee bought pizza for
students and observed them at play…” (Acosta-Rodriguez v City of New York,
77 AD3d 503, 504 [1st Dept 2010].) And this is not a record where the alleged
abuser/teacher “took only male students with him on personal fishing trips,
that [the teacher] had a chair by his desk on which only male students sat and
that [the teacher] was seen driving in his car only with male students.”
(Doglas, 215 AD3d at 56). On the contrary, here the record evidence adduced
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by the District on the instant motion reveals that the rumors and gossip
concerned sexually inappropriate behavior between Camp and Plaintiff. Such
evidence is sufficient to raise a question of fact as to the District’s actual or
constructive notice of Camp’s alleged propensities (Doglas, 215 AD3d at 56
[“Critically, the topic of the rumors and gossip did not involve any instances of
sexual abuse or other inappropriate behavior by [the teacher]”).
And even assuming, arguendo, the District had met its prima facie
burden entitling it to judgment as a matter of law upon Plaintiff’s negligent
supervision and retention causes of action, on the instant record Plaintiff
raised triable issues of fact in response.
The Court next turns to the District’s summary judgment motion
directed to Plaintiff’s third cause of action alleging negligent failure to train
teachers, administrators, and students related to sexual abuse. Specifically,
that cause of action seeks to hold the District “liable…as the result of their
negligent failure to establish effective training and education programs, policies
and procedures…calculated to detect and prevent inappropriate employee
behavior and conduct, and the sexual abuse of students by employees.” (Doc.
No. 40, Summons and Complaint at ¶ 57).
To be sure, the District established that during the time of the alleged
abuse there was no statutorily recognized duty requiring school districts to
provide such training.1 Here, however, Plaintiff alleges the District breached its
common law duty. And – like the negligent supervision claim – “[a] necessary
element of [a negligent training] cause[] of action is that the employer knew or
should have known of the employee’s propensity for the conduct which caused
the injury.” (Timothy Mc. v Beacon City Sch. Dist., 127 AD3d 826, 828 [2d Dept
2015]). On the instant record, even assuming arguendo that the District met
its prima facie burden there exists questions of fact concerning what it knew or
should have known concerning Camp’s alleged sexually inappropriate conduct
1 As observed by the District, such training was only required of district employees in 2018 and
for students in 2019 (See NY Education Law § 1132 [2]; NY Education Law § 803-B).
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with Plaintiff (See e.g., Hicks ex rel. Nolette v Berkshire Farm Center and
Services for Youth, 123 AD3d 1319, 1320-22 [3d Dept 2014]). Thus, that
portion of the District’s motion is likewise DENIED.
The District also moves for summary judgment dismissing Plaintiff’s
fourth cause of action sounding in premises liability. Specifically, the District
argues that the claim is duplicative of Plaintiff’s negligent supervision and
negligent retention claims. Indeed, a “premises liability…claim[] must be
dismissed as duplicative of [a]…negligent supervision and negligent retention
claim[].” (Fay v Troy City Sch. Dist., 197 AD3d 1423, 1425 [3d Dept 2021]; see
also e.g., Brophy v Big Brothers Big Sisters of America, Inc., 224 AD3d 866, 869
[2d Dept 2024] [dismissing negligence claim alleging a district’s failure to
provide a safe and secure environment as duplicative of plaintiff’ negligent
retention and supervision claims]; PB-36 v Niagara Falls City School District, 72
Misc3d 1052 [Sup Ct, Niagara County 2021] [dismissing premises liability
cause of action in CVA case where it is duplicative of the negligence causes of
action]). Such is the case here. The District established that Plaintiff’s
premises liability cause of action is fully subsumed into her negligent
supervision and retention causes of action and therefore is duplicative. And
with the District having met its initial burden Plaintiff has failed to raise an
issue of fact in response. Thus, the fourth cause of action sounding in
premises liability is DISMISSED.
As to Plaintiff’s fifth cause of action alleging that the District failed to
report Camp’s suspected child abuse under Social Services Law § § 413 and
420, the District has established its entitlement to judgment as a matter of law
and Plaintiff has failed to raise a triable issue of fact in response (See e.g., Solly
v Pioneer Cent. Sch. Dist., 221 AD3d 1447, 1448-49 [4th Dept 2023]).
Finally, because claims as against the District have survived the Court
now considers that portion of the motion for an order bifurcating the liability
and damages phases of the trial pursuant to CPLR 603 and 22 NYCRR §
202.42. Plaintiff opposes bifurcation. For the reasons that follow, that portion
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of the District’s motion for bifurcation is GRANTED but it is ORDERED that the
damages phase of the trial will be conducted immediately following the liability
phase and shall proceed before the same empaneled jury.
Under CPLR 603, the Court may order severance of claims or separate
issues “[i]n the furtherance of convenience or to avoid prejudice.” Additionally,
22 NYCRR § 202.42 (a) encourages judges to bifurcate trials on issues of
liability and damages in personal injury actions if it decides that this will clarify
or simplify the issues and lead to a fair and expeditious disposition of the
action. Whether to grant bifurcation is a decision left to this Court’s discretion
(See e.g., Pittsford Canalside Properties, LLC v Pittsford Village Green, 154 AD3d
1303, 1305 [4th Dept 2017]). Bifurcation may be appropriate where the nature
and extent of claimed injuries does not have “an important bearing on the
question of liability…” (Louise B.G. v New York City Bd. of Educ., 143 AD2d
728, 729 [2d Dept 1988]). Such is the case here.
As such, in the exercise of the Court’s discretion the Court agrees that
bifurcation will assist the factfinder in clarifying what liability – if any –
attaches to the various parties. In the further exercise of the Court’s
discretion, and mindful of judicial economies achieved thereby, the damages
phase of this bifurcated trial shall commence immediately following the liability
phase (if so found) and will proceed before the same empaneled jury.
Accordingly, it is hereby
ORDERED and ADJUDGED, that the District’s motion for summary
judgment pursuant to CPLR 3212 is GRANTED in part insofar as Plaintiff’s
fourth cause of action (negligent failure to provide a safe and secure
environment) and fifth cause of action (failure to report child abuse) are
DISMISSED, and it is further
ORDERED and ADJUDGED, that to the extent Plaintiff claims punitive
damages as against the District said claims are DISMISSED, and it is further
ORDERED, that the District’s motion for summary judgment as to
Plaintiff’s remaining causes of action is DENIED, and it is further
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ORDERED, that the District’s motion for bifurcation pursuant to CPLR
603 is GRANTED but the damages phase of the trial will be conducted
immediately following the liability phase (if so found) and shall proceed before
the same empaneled jury.
Any arguments or prayers for relief advanced by the parties but not
specifically addressed herein are DENIED.
This constitutes the Decision, Order, and Judgment of the Court.
Dated: April 5, 2024
Rochester, New York
__________________________
Honorable Joseph D. Waldorf
Supreme Court Justice
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