| Ann JJ. v Schenectady Assn. for Retarded Citizens |
| 2009 NY Slip Op 00614 [59 AD3d 772] |
| February 5, 2009 |
| Appellate Division, Third Department |
| Ann JJ., as Parent and Guardian of Edward JJ.,Appellant, v Schenectady Association for Retarded Citizens et al.,Respondents. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Luke C. Davignon ofcounsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Kramer, J.), entered June 20, 2008 inSchenectady County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Edward JJ. is a 55-year-old man with the mental capacity of a three year old. BecauseEdward's diminished capacity has limited his ability to communicate with others and preventshim from living on his own, he attended a day-care facility run by defendants. In or aboutFebruary 2002, plaintiff, Edward's mother, observed certain sexual behaviors in her son that shehad not previously observed. When asked about those behaviors, Edward responded in a mannerthat led his mother to believe that he had been sexually abused. Plaintiff brought the matter to theattention of defendants and, eventually, the local police agency, but neither found any evidenceof sexual abuse. Plaintiff then commenced this action alleging, among other things, thatdefendants' negligent supervision of Edward had resulted in the alleged sexual abuse of Edwardby either a member of defendants' staff or another person utilizing services at one of defendants'facilities. Plaintiff also alleged negligent training, monitoring and supervision of employees andparticipants in their program. Following discovery, Supreme Court granted defendants' motionfor summary judgment dismissing the complaint. Plaintiff appeals and we [*2]affirm.
We agree with Supreme Court's determination that defendants met their initial burden ofestablishing their entitlement to summary judgment as a matter of law (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) in that they came forward with someevidence of the manner in which they fulfilled their duty of care to Edward as the provider ofadult day-care services. Specifically, they offered proof that they provided training to theiremployees and they supervised and monitored employees and program participants, thus shiftingthe burden to plaintiff to raise a question of fact requiring a trial (see CPLR 3212 [b];Alvarez v Prospect Hosp., 68 NY2d 320, 324, 326 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46NY2d 1065, 1068 [1979]).
In opposition to defendants' motion, plaintiff provided, in addition to her own testimony, anaffirmation of her attorney and an "affirmation" of a licensed psychologist who had examinedEdward. When an expert's affidavit is offered as proof to defeat a summary judgment motion, it "'must contain sufficient allegations to demonstrate that the conclusions it contains are more thanmere speculation and would, if offered alone at trial, support a verdict in the proponent's favor' "(Ramos v Howard Indus., Inc., 10NY3d 218, 224 [2008], quoting Adamy v Ziriakus, 92 NY2d 396, 402 [1998];see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). "Where the expert'sultimate assertions are speculative or unsupported by any evidentiary foundation, however, theopinion should be given no probative force and is insufficient to withstand summary judgment"(Diaz v New York Downtown Hosp., 99 NY2d at 544 [citations omitted]).
Here, even if the psychologist's affirmation had been in proper form, it was insufficient todefeat defendant's motion for summary judgment. The psychologist observed that Edward"displayed several symptoms that are associated with sexual abuse" in a child of three to fouryears of age (noting that Edward's cognitive abilities were similar to that of a three year old atthe time that she evaluated him). However, she did not actually set forth the opinion that Edwardwas sexually abused, nor did her affirmation provide any basis to determine when the allegedabuse occurred or by whom (see Ramos v Howard Indus., Inc., 10 NY3d at 224;Adamy v Ziriakus, 92 NY2d at 402; Diaz v New York Downtown Hosp., 99NY2d at 544). Furthermore, given Edward's inability to testify, plaintiff's account of hisstatements—to the extent they might have been probative of any of thosefacts—constitutes inadmissible hearsay (see generally Alvarez v Prospect Hosp.,68 NY2d at 327; Zuckerman v City of New York, 49 NY2d at 562). Under theseunfortunate circumstances, plaintiff cannot demonstrate what, if anything, happened or, ifEdward was the victim of sexual abuse, who perpetrated such abuse or when it occurred. Thus,Supreme Court properly determined that plaintiff failed to raise a triable issue of fact sufficientto defeat defendants' motion for summary judgment.
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the order isaffirmed, with costs.