Preview
FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
______________________________________
N.J.S., an infant, by and through her Index No.: 805265/2020
parent and natural guardian,
MICHELE SARDO, and MEMORANDUM OF LAW
MICHELE SARDO individually IN SUPPORT OF MOTION
TO DISMISS
Plaintiffs,
v.
WEST SENECA CENTRAL SCHOOL DISTRICT
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCTION
WEST SENIOR HIGH SHCOOL
Defendants.
________________________________________
WEST SENECA CENTRAL SCHOOL DISTRICT
WEST SENECA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCTION
WEST SENIOR HIGH SHCOOL
Third-Party Plaintiffs
v.
CHRYSTLER LEE STORTZ
MICHAEL JAMES STORTZ
BARBARA ANNE STORTZ
HEATHER A. THIBEULT a/k/a HEATHER A. STORTZ
Third-Party Defendants.
________________________________________
Eric M. Soehnlein
Sean O’Brien
Lippes Mathias Wexler Friedman LLP
50 Fountain Plaza, Suite 1700
Buffalo, New York 14203
Attorneys for Michael and Barbara Stortz
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PRELIMINARY STATEMENT
Third Party Plaintiffs West Seneca Central School District, West Seneca
School District Board of Education, and West Senior High School (collectively
“Plaintiffs”) allege, in a conclusory fashion, a negligence cause of action against Third-
Party Defendants Michael and Barbara Stortz (collectively “Defendants”). Although
it is not clear from the Third-Party Complaint (“Complaint”) what precise theory of
liability Plaintiffs intend to rely upon to prove their negligence claim, even taking the
allegations in the Complaint as true, the claim fails as a matter of law.
First, Defendants did not owe a generalized duty to Plaintiffs. Even if they did,
the factual allegations do not support such a claim as a matter of law. As a result, the
Second and Third causes of action against Defendants should be dismissed.
ARGUMENT
I. Standard of law
On a pre-answer motion to dismiss pursuant to CPLR § 3211, “the pleading is
to be afforded a liberal construction and the plaintiff’s allegations are accepted as
true and accorded the benefit of every possible favorable inference.” Granada Condo.
III Ass’n v. Palomino, 78 A.D.3d 996, 996 (2d Dept. 2010). “The allegations of the
pleading cannot be vague and conclusory but must contain sufficiently particularized
allegations from which a cognizable cause of action reasonably could be found.” V.
Groppa Pools, Inc. v. Massello, 106 A.D.3d 722, 723 (2d Dept. 2013) (internal citation
omitted). “The test of the sufficiency of a complaint is whether it gives sufficient notice
of the transactions, occurrences, or series of transactions or occurrences intended to
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be proved and whether the requisite elements of any cause of action known to our law
can be discerned from its averments.” Pace v. Perk, 81 A.D.2d 444, 449 (2d Dept.
1981).
Accordingly, “although the facts pleaded are presumed to be true and are to
be accorded every favorable inference, ‘bare legal conclusions as well as factual claims
flatly contradicted by the record are not entitled to any such consideration.’”
Silverman v. Nicholson, 110 A.D.3d 1054, 1055 (2d Dept. 2013 (quoting Lutz v.
Caracappa, 35 A.D.3d 673, 674 (2d Dept. 2006). “[N]evertheless, allegations
consisting of bare legal conclusions, as well as factual claims either inherently
incredible or flatly contradicted by documentary evidence are not entitled to such
consideration.” Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220, 220 (1st Dept. 1991)
(internal quotation omitted).
II. Negligence
To prevail on a negligence claim, “a plaintiff must demonstrate (1) a duty owed
by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately
resulting therefrom.” Pasternack v. Lab'y Corp. of Am. Holdings, 27 N.Y.3d 817, 825
(2016) (quoting Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985)). In the
absence of a duty, as a matter of law, there can be no liability Id. at 1028; see also
Lauer v. City of New York, 95 N.Y.2d 95, 100 (2000) (“[w]ithout a duty running
directly to the injured person there can be no liability in damages, however careless
the conduct or foreseeable the harm”).
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The definition and scope of an alleged tortfeasor's duty owed to a plaintiff is a
question of law. Palka v. Servicemaster Mgt. Servs. Corp.,83 N.Y.2d 579, 585 (1994).
Courts “fix the duty point by balancing factors, including the reasonable expectations
of [the] parties and society generally, the proliferation of claims, the likelihood of
unlimited or insurer-like liability, disproportionate risk and reparation allocation,
and public policies affecting the expansion or limitation of new channels of liability.”
532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 727 (2001).
To establish the existence of a legal duty, “[t]he injured party must show that
a defendant owed not merely a general duty to society but a specific duty to him or
her ... in order to avoid subjecting an actor to limitless liability to an indeterminate
class of persons conceivably injured by any negligence in that act.” Stephanie L. v.
House of the Good Shepherd, 186 A.D.3d 1009, 1011–12, (4th Dept. 2020), reargument
denied, 189 A.D.3d 2171 (2020) (quoting Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d
222, 232 (2001), opinion after certified question answered, 264 F.3d 21 (2d Cir. 2001)).
III. Duty to warn
Plaintiffs assert that Defendants had a duty “provide reasonable and adequate
warning as to any danger, negligence or otherwise, that [their] son, Chrystler Lee
Stortz (“Stortz”), may pose to the public at large….” Third Party Complaint, Doc. 9,
¶¶ 22-23. In support of this claim, Plaintiffs contend that Defendants were aware of
facts that should have put them on notice that Stortz presented a danger to other
students and failed to inform Plaintiffs of same. Doc. 9, p. 9-11.
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It is well settled that “[p]arental liability for the torts of a child does not arise
merely from the parental relationship.” Brahm v. Hatch, 203 A.D.2d 640, 641 (1994);
see also Gordon v. Harris, 86 A.D.2d 948, 448 N.Y.S.2d 598 (3d. Dept. 1982). Instead,
such liability may arise only where the parent (1) fails to supervise a child that he or
she knows has a known propensity toward vicious conduct; or (2) entrusts a child with
a dangerous instrument. See La Torre v. Genesee Mgmt. Inc., 228 A.D.2d 995 (3d.
Dept. 1996), aff'd sub nom. LaTorre v. Genesee Mgmt., Inc., 90 N.Y.2d 5761284 (1997).
That limited duty was analyzed from a tort perspective by the Court of Appeals
in LaTorre v. Genesee Mgmt., Inc., 90 N.Y.2d 576, 582 (1997) (“it would be
unreasonable to burden parents and guardians generally, especially those charged
with special responsibilities for children who happen to suffer developmental
disabilities, by exposing them to rebound liability, flowing from a child's or adult's
natural deficits or personal qualities merely on the basis of general allegations of the
kind presented here.”).
Plaintiffs contend that Defendants had a duty to warn them of Stortz’s
purportedly violent and aggressive propensities. That duty, however, is not
recognized in New York, and for good reason. It is easy to imagine the influx of
litigation and potential liability across a myriad of circumstances where a parent is
provided notice of an incident, does not inform every third party where the child
interacts, and a second incident then occurs. Doc. 9, p. 9-12. That is precisely the
unreasonable burden on parents warned against by the Court of Appeals in Latorre.
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As a result, Defendants did not have a duty to warn Plaintiffs and their claim
in that regard must be dismissed.
i. The facts in the Complaint do not support a duty to warn theory of
liability
Even if the Court determined Plaintiffs’ generalized duty to warn theory of
liability was viable, the facts do not support it as a matter of law.
First, any claim would require that Defendants failed to supervise Stortz.
Critically, however, failure to supervise allegations against a parent fail where he or
she does not have the ability or opportunity to supervise the child under the specific
circumstances. See, e.g., Johnson v. Cantie, 74 A.D.3d 1724, 1725 (4th Dept. 2010);
Davies v. Inc. Vill. of E. Rockaway, 272 A.D.2d 503, 504 (2d. Dept. 2000); LoPiccolo v.
Chelsea GCA Realty, Inc., 267 A.D.2d 149, 150 (1st Dept. 1999); Dawes v. Ballard,
133 A.D.2d 662 (2d. Dept. 1987).
Here, the Complaint contends that the assault occurred in the basement of the
West Seneca Central School District. Doc. 9., ¶ 8. There is no allegation that
Defendants were present at the time of the alleged assault or would have otherwise
been able to restrain or control Stortz’s behavior at the time. As a result, Plaintiffs’
negligent supervision claim fails, and dismissal is warranted.
Second, Plaintiffs’ allegations are insufficient to survive a motion to dismiss.
As stated in Part I supra, “although the facts pleaded are presumed to be true and
are to be accorded every favorable inference, ‘bare legal conclusions as well as factual
claims flatly contradicted by the record are not entitled to any such consideration.’”
Silverman, 110 A.D.3d at 1055.
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LaTorre v. Genesee Mgmt., Inc., is instructive in that regard. See LaTorre, 90
N.Y.2d 576. There, an infant and her mother were at a shopping mall. After the
mother left the infant alone in the mall, the infant assaulted a third party, causing
injuries. Id. The Court of Appeals concluded as a matter of law, that the mother could
not be held liable for leaving her child unsupervised at a shopping mall, despite her
knowledge of the child's propensity for violent physical outbursts. Id. In coming to
that decision, the Court noted that the “conclusory, generalized assertion[s] [are]
patently insufficient under presently governing principles to satisfy the requisite
pertinent knowledge of the kind of dangerous propensities.” Id.
Here, Plaintiffs allege, in wholly conclusory fashion, that Defendants were
aware of inappropriate behavior or conduct that would put them on notice that Stortz
could present a future danger to others. Doc. 9, p. 9-12. Plaintiffs do not, however,
articulate any facts with some reasonable specificity to support that conclusion.
As a result, the Complaint does not contain sufficient facts to state a claim and
dismissal is warranted.
CONCLUSION
Based on the foregoing, Defendants request that the Court enter an Order
dismissing Counts II and III of the Third-Party Complaint against them with
prejudice.
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Dated: October 4, 2021
LIPPES MATHIAS WEXLER FRIEDMAN LLP
/s Eric M. Soehnlein
Eric M. Soehnlein, Esq.
Sean M. O'Brien, Esq.
50 Fountain Plaza, Suite 1700
Buffalo, New York 14202
P: 716.853.5100
F: 716.853.5199
E: esoehnlein@lippes.com
E: sobrien@lippes.com
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Preview
FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE ______________________________________ N.J.S., an infant, by and through her Index No.: 805265/2020 parent and natural guardian, MICHELE SARDO, and MEMORANDUM OF LAW MICHELE SARDO individually IN SUPPORT OF MOTION TO DISMISS Plaintiffs, v. WEST SENECA CENTRAL SCHOOL DISTRICT WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCTION WEST SENIOR HIGH SHCOOL Defendants. ________________________________________ WEST SENECA CENTRAL SCHOOL DISTRICT WEST SENECA CENTRAL SCHOOL DISTRICT BOARD OF EDUCTION WEST SENIOR HIGH SHCOOL Third-Party Plaintiffs v. CHRYSTLER LEE STORTZ MICHAEL JAMES STORTZ BARBARA ANNE STORTZ HEATHER A. THIBEULT a/k/a HEATHER A. STORTZ Third-Party Defendants. ________________________________________ Eric M. Soehnlein Sean O’Brien Lippes Mathias Wexler Friedman LLP 50 Fountain Plaza, Suite 1700 Buffalo, New York 14203 Attorneys for Michael and Barbara Stortz 1 of 8 FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021 PRELIMINARY STATEMENT Third Party Plaintiffs West Seneca Central School District, West Seneca School District Board of Education, and West Senior High School (collectively “Plaintiffs”) allege, in a conclusory fashion, a negligence cause of action against Third- Party Defendants Michael and Barbara Stortz (collectively “Defendants”). Although it is not clear from the Third-Party Complaint (“Complaint”) what precise theory of liability Plaintiffs intend to rely upon to prove their negligence claim, even taking the allegations in the Complaint as true, the claim fails as a matter of law. First, Defendants did not owe a generalized duty to Plaintiffs. Even if they did, the factual allegations do not support such a claim as a matter of law. As a result, the Second and Third causes of action against Defendants should be dismissed. ARGUMENT I. Standard of law On a pre-answer motion to dismiss pursuant to CPLR § 3211, “the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference.” Granada Condo. III Ass’n v. Palomino, 78 A.D.3d 996, 996 (2d Dept. 2010). “The allegations of the pleading cannot be vague and conclusory but must contain sufficiently particularized allegations from which a cognizable cause of action reasonably could be found.” V. Groppa Pools, Inc. v. Massello, 106 A.D.3d 722, 723 (2d Dept. 2013) (internal citation omitted). “The test of the sufficiency of a complaint is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to 2 2 of 8 FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021 be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments.” Pace v. Perk, 81 A.D.2d 444, 449 (2d Dept. 1981). Accordingly, “although the facts pleaded are presumed to be true and are to be accorded every favorable inference, ‘bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration.’” Silverman v. Nicholson, 110 A.D.3d 1054, 1055 (2d Dept. 2013 (quoting Lutz v. Caracappa, 35 A.D.3d 673, 674 (2d Dept. 2006). “[N]evertheless, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration.” Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220, 220 (1st Dept. 1991) (internal quotation omitted). II. Negligence To prevail on a negligence claim, “a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” Pasternack v. Lab'y Corp. of Am. Holdings, 27 N.Y.3d 817, 825 (2016) (quoting Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985)). In the absence of a duty, as a matter of law, there can be no liability Id. at 1028; see also Lauer v. City of New York, 95 N.Y.2d 95, 100 (2000) (“[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm”). 3 3 of 8 FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021 The definition and scope of an alleged tortfeasor's duty owed to a plaintiff is a question of law. Palka v. Servicemaster Mgt. Servs. Corp.,83 N.Y.2d 579, 585 (1994). Courts “fix the duty point by balancing factors, including the reasonable expectations of [the] parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.” 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 727 (2001). To establish the existence of a legal duty, “[t]he injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her ... in order to avoid subjecting an actor to limitless liability to an indeterminate class of persons conceivably injured by any negligence in that act.” Stephanie L. v. House of the Good Shepherd, 186 A.D.3d 1009, 1011–12, (4th Dept. 2020), reargument denied, 189 A.D.3d 2171 (2020) (quoting Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001), opinion after certified question answered, 264 F.3d 21 (2d Cir. 2001)). III. Duty to warn Plaintiffs assert that Defendants had a duty “provide reasonable and adequate warning as to any danger, negligence or otherwise, that [their] son, Chrystler Lee Stortz (“Stortz”), may pose to the public at large….” Third Party Complaint, Doc. 9, ¶¶ 22-23. In support of this claim, Plaintiffs contend that Defendants were aware of facts that should have put them on notice that Stortz presented a danger to other students and failed to inform Plaintiffs of same. Doc. 9, p. 9-11. 4 4 of 8 FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021 It is well settled that “[p]arental liability for the torts of a child does not arise merely from the parental relationship.” Brahm v. Hatch, 203 A.D.2d 640, 641 (1994); see also Gordon v. Harris, 86 A.D.2d 948, 448 N.Y.S.2d 598 (3d. Dept. 1982). Instead, such liability may arise only where the parent (1) fails to supervise a child that he or she knows has a known propensity toward vicious conduct; or (2) entrusts a child with a dangerous instrument. See La Torre v. Genesee Mgmt. Inc., 228 A.D.2d 995 (3d. Dept. 1996), aff'd sub nom. LaTorre v. Genesee Mgmt., Inc., 90 N.Y.2d 5761284 (1997). That limited duty was analyzed from a tort perspective by the Court of Appeals in LaTorre v. Genesee Mgmt., Inc., 90 N.Y.2d 576, 582 (1997) (“it would be unreasonable to burden parents and guardians generally, especially those charged with special responsibilities for children who happen to suffer developmental disabilities, by exposing them to rebound liability, flowing from a child's or adult's natural deficits or personal qualities merely on the basis of general allegations of the kind presented here.”). Plaintiffs contend that Defendants had a duty to warn them of Stortz’s purportedly violent and aggressive propensities. That duty, however, is not recognized in New York, and for good reason. It is easy to imagine the influx of litigation and potential liability across a myriad of circumstances where a parent is provided notice of an incident, does not inform every third party where the child interacts, and a second incident then occurs. Doc. 9, p. 9-12. That is precisely the unreasonable burden on parents warned against by the Court of Appeals in Latorre. 5 5 of 8 FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021 As a result, Defendants did not have a duty to warn Plaintiffs and their claim in that regard must be dismissed. i. The facts in the Complaint do not support a duty to warn theory of liability Even if the Court determined Plaintiffs’ generalized duty to warn theory of liability was viable, the facts do not support it as a matter of law. First, any claim would require that Defendants failed to supervise Stortz. Critically, however, failure to supervise allegations against a parent fail where he or she does not have the ability or opportunity to supervise the child under the specific circumstances. See, e.g., Johnson v. Cantie, 74 A.D.3d 1724, 1725 (4th Dept. 2010); Davies v. Inc. Vill. of E. Rockaway, 272 A.D.2d 503, 504 (2d. Dept. 2000); LoPiccolo v. Chelsea GCA Realty, Inc., 267 A.D.2d 149, 150 (1st Dept. 1999); Dawes v. Ballard, 133 A.D.2d 662 (2d. Dept. 1987). Here, the Complaint contends that the assault occurred in the basement of the West Seneca Central School District. Doc. 9., ¶ 8. There is no allegation that Defendants were present at the time of the alleged assault or would have otherwise been able to restrain or control Stortz’s behavior at the time. As a result, Plaintiffs’ negligent supervision claim fails, and dismissal is warranted. Second, Plaintiffs’ allegations are insufficient to survive a motion to dismiss. As stated in Part I supra, “although the facts pleaded are presumed to be true and are to be accorded every favorable inference, ‘bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration.’” Silverman, 110 A.D.3d at 1055. 6 6 of 8 FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021 LaTorre v. Genesee Mgmt., Inc., is instructive in that regard. See LaTorre, 90 N.Y.2d 576. There, an infant and her mother were at a shopping mall. After the mother left the infant alone in the mall, the infant assaulted a third party, causing injuries. Id. The Court of Appeals concluded as a matter of law, that the mother could not be held liable for leaving her child unsupervised at a shopping mall, despite her knowledge of the child's propensity for violent physical outbursts. Id. In coming to that decision, the Court noted that the “conclusory, generalized assertion[s] [are] patently insufficient under presently governing principles to satisfy the requisite pertinent knowledge of the kind of dangerous propensities.” Id. Here, Plaintiffs allege, in wholly conclusory fashion, that Defendants were aware of inappropriate behavior or conduct that would put them on notice that Stortz could present a future danger to others. Doc. 9, p. 9-12. Plaintiffs do not, however, articulate any facts with some reasonable specificity to support that conclusion. As a result, the Complaint does not contain sufficient facts to state a claim and dismissal is warranted. CONCLUSION Based on the foregoing, Defendants request that the Court enter an Order dismissing Counts II and III of the Third-Party Complaint against them with prejudice. 7 7 of 8 FILED: ERIE COUNTY CLERK 10/04/2021 04:21 PM INDEX NO. 805265/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 10/04/2021 Dated: October 4, 2021 LIPPES MATHIAS WEXLER FRIEDMAN LLP /s Eric M. Soehnlein Eric M. Soehnlein, Esq. Sean M. O'Brien, Esq. 50 Fountain Plaza, Suite 1700 Buffalo, New York 14202 P: 716.853.5100 F: 716.853.5199 E: esoehnlein@lippes.com E: sobrien@lippes.com 8 8 of 8