| "John Doe 1" v Board of Educ. of Greenport Union Free Sch.Dist. |
| 2012 NY Slip Op 07633 [100 AD3d 703] |
| November 14, 2012 |
| Appellate Division, Second Department |
| "John Doe 1" et al., Respondents, v Board of Education ofGreenport Union Free School District et al., Appellants, et al.,Defendant. |
—[*1] Joseph W. Prokop, PLLC, Central Islip, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants Board of Educationof the Greenport Union Free School District, Gary Charters, Greenport Union Free SchoolDistrict, and Charles Kozora appeal, as limited by their brief, from so much of an order of theSupreme Court, Suffolk County (Jones, Jr., J.), entered December 2, 2010, as, upon granting theplaintiffs' cross motion for leave to serve and file a second amended complaint, denied thosebranches of their motion which were pursuant to CPLR 3211 (a) (7) to dismiss the causes ofaction sounding in vicarious liability and negligent hiring and supervision insofar as assertedagainst them in the second amended complaint, or alternatively, pursuant to CPLR 3211 (c) forsummary judgment dismissing those causes of action insofar as asserted against them in thesecond amended complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motion which were pursuant to CPLR 3211 (a) (7) to dismiss the causes ofaction sounding in vicarious liability and negligent hiring and supervision insofar as assertedagainst the appellants in the second amended complaint, and substituting therefor a provisiongranting those branches of the motion; as so modified, the order is affirmed insofar as appealedfrom, with costs to the appellants.
The infant plaintiff "John Doe 1" (hereinafter the infant plaintiff) was a student in thedefendant Greenport Union Free School District (hereinafter the school district), when thedefendant Maria Commins, a teacher's aide employed by the school district, allegedly engaged inan inappropriate sexual relationship with him. The infant plaintiff and his parents, "John Doe 2"and "Jane Doe 1," commenced an action against Commins as well as the school district, theBoard of Education of the Greenport Union Free School District, Gary Charters, the president ofthe school district, and Charles Kozora, the superintendent of the school district (hereinaftercollectively the school defendants). The second amended complaint asserted various causes ofaction against the school defendants, including a cause of action alleging that the schooldefendants were vicariously liable for the actions of Commins, and were liable for the negligenthiring and supervision of Commins. At a hearing held pursuant to General Municipal Law§ 50-h, the infant plaintiff repeatedly and unequivocally testified that he first metCommins due to his friendship with her son, with whom he shared some classes, and that boththe development of his relationship with Commins, [*2]as well asall of their sexual trysts, occurred off of school grounds and outside of school hours.
The school defendants moved pursuant to CPLR 3211 (a) (7) to dismiss the second amendedcomplaint insofar as asserted against them or, alternatively, pursuant to CPLR 3211 (c) forsummary judgment dismissing the second amended complaint insofar as asserted against them.The Supreme Court denied that branch of the motion which was for summary judgment, andgranted that branch of the motion which was pursuant to CPLR 3211 (a) (7) to dismiss all of thecauses of action insofar as asserted against the school defendants except for those seekingrecovery under theories of vicarious liability and negligent hiring and supervision. The schooldefendants appeal, and we modify.
As the plaintiffs correctly observe, summary judgment was unavailable to the schooldefendants, since the Supreme Court did not provide the requisite "adequate notice" (CPLR 3211[c]) of its intention to treat the CPLR 3211 (a) (7) motion as one for summary judgment, and itcannot be said on this record that the parties deliberately charted a summary judgment course(see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). Hence, the relevant standard to beapplied to this matter is that applicable to a CPLR 3211 (a) (7) motion to dismiss (see Vecere v Estate of Arnold Berle, 91AD3d 637 [2012]; Velez v CaptainLuna's Mar., 74 AD3d 1191 [2010]).
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must affordthe complaint a liberal construction, accept all facts as alleged in the complaint to be true, accordthe plaintiff the benefit of every [possible] favorable inference, and determine only whether thefacts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83,87-88 [1994]). However, where evidentiary material is submitted and considered on a motion todismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one forsummary judgment, the question becomes whether the plaintiff 'has a cause of action, notwhether [the plaintiff] has stated one, and, unless it has been shown that a material fact asclaimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significantdispute exists regarding it . . . dismissal should not eventuate' (Guggenheimer vGinzburg, 43 NY2d 268, 274-275 [1977])" (Fishberger v Voss, 51 AD3d 627, 628 [2008]).
Here, the evidentiary material submitted on the school defendants' motion demonstrated thatthe plaintiffs did not have a cause of action against them sounding in either vicarious liability ornegligent hiring and supervision. Indeed, the infant plaintiff's own testimony at the hearingpursuant to General Municipal Law § 50-h established that all of the improper acts byCommins took place off school premises and/or outside of school hours, when the schooldefendants had no custody or control of the infant plaintiff and no duty to monitor or supervisethe conduct of Commins (see Pratt v Robinson, 39 NY2d 554, 560 [1976]; Banks v New York City Dept. ofEduc., 70 AD3d 988, 990 [2010]). Moreover, the evidence demonstrated that theconduct of Commins was personally motivated, and constituted a complete departure from herduties as a school district employee, thereby negating any potential vicarious liability on the partof the school defendants for her tortious acts (see N.X. v Cabrini Med. Ctr., 97 NY2d247, 251-252 [2002]; Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]; Horvath v L & B Gardens, Inc., 89AD3d 803, 803-804 [2011]; Spielman v Carrino, 77 AD3d 816, 818 [2010]).
Additionally, the evidence established that Commins was properly investigated prior to beinghired, and that the school defendants had no notice of any propensity on her part to sexuallyassault students, and the plaintiffs did not allege that the school defendants knew or had reason toknow of any improper behavior by Commins (see Boadnaraine v City of New York, 68 AD3d 1032, 1033 [2009];K.I. v New York City Bd. of Educ., 256 AD2d 189, 191-192 [1998]). Similarly, therewas no nexus between Commins's employment and the sexual assaults, since they were separatedby time, place, and the intervening independent acts of Commins (see Farrell v Maiello, 38 AD3d592, 593 [2007]; R. v R., 37AD3d 577, 579 [2007]; Anonymous v Dobbs Ferry Union Free School Dist., 290AD2d 464, 465 [2002]). Accordingly, the school defendants indisputably proved, through thesubmission of evidentiary material, that the plaintiffs did not have a cause of action against them.Consequently, the Supreme Court should have granted that branch of the school defendants'motion which was to dismiss the remainder of the second amended complaint insofar as assertedagainst the school defendants (see [*3]Grant v Aurora Loan Servs., 88 AD3d 949, 950 [2011]; Laxer v Edelman, 75 AD3d 584,585-586 [2010]; Fishberger v Voss, 51 AD3d at 628).
The plaintiffs did not demonstrate that further discovery might lead to relevant evidencesufficient to oppose the school defendants' motion (see Kaplan v Roberts, 91 AD3d 827 [2012]; Boadnaraine v Cityof New York, 68 AD3d at 1033). Mastro, J.P., Chambers, Austin and Miller, JJ., concur.