Supreme Court, Niagara County, July 19, 2021

Shaub, Ahmuty, Citrin & Spratt, LLP (Nicholas Tam and Timothy R. Capowski of counsel) for Niagara Falls City School District, defendant.

Phillips & Paolicelli, LLP (Yitzchak M. Fogel of counsel) for plaintiff.

Defendants, Niagara Falls City School District and LaSalle Junior High School (hereafter, the District), moved to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (5) and (7) (NY St Cts Elec Filing [NYSCEF] mot 002). Plaintiff opposed the motion.

Plaintiff brought this claim pursuant to the Child Victims Act (CPLR 214-g). Plaintiff claims that he was sexually abused by teacher Robert Lewis (hereafter, Lewis), while a minor student attending LaSalle Junior High School.

Plaintiff asserted four causes of action against the District in the complaint: negligent hiring, retention, supervision and direction of Lewis; negligent, reckless and willful misconduct; premises liability; and breach of statutory duties to report pursuant to Social Services Law §§ [*2]413 and 420 and Education Law article 23-B.

The District moved under CPLR 3211 (a) (7), arguing that the complaint fails to state a cause of action. It is well settled that

"[o]n a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), we accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. At the same time, however, allegations consisting of bare legal conclusions . . . are not entitled to any such consideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141-142 [2017] [internal quotation marks, brackets, and citations omitted]).

The District also moved under CPLR 3211 (a) (5), arguing that the statute of limitations on plaintiff's claims has expired.

It is initially noted that plaintiff consented to dismissal of the claims based on violation of the Education Law; all claims against LaSalle Junior High School; and requests for punitive damages and attorney's fees. The District's motion is granted in that regard.{**72 Misc 3d at 1055}

Plaintiff's first cause of action is for negligent hiring, retention, supervision and direction of Lewis. The District argues that the complaint fails to state a cause of action. "[A]n employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee's propensity to commit such an act" (Medical Care of W. N.Y. v Allstate Ins. Co., 175 AD3d 878, 880 [4th Dept 2019]). Here, a review of the complaint establishes that plaintiff states a cause of action based on the negligent hiring, retention, supervision and direction of Lewis. The District's motion to dismiss the first cause of action is denied.

Plaintiff's second cause of action is for negligent, reckless and willful misconduct, based on, among other things, the failure to train students, parents and staff about the risk of sexual abuse; allowing Lewis unfettered access to children; and the failure to have policies in place to oversee Lewis and protect vulnerable students from sexual abuse. The District also argues that the complaint fails to state a cause of action. "In order 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 Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016] [internal quotation marks and citation omitted]). Here, the duty owed by the District to plaintiff is based on the concept of in loco parentis, in other words, to take "the place of parents and guardians" (Mirand v City of New York, 84 NY2d 44, 49 [1994]). A review of the complaint also indicates that plaintiff states a cause of action based on negligence. The District's motion to dismiss the second cause of action is denied.

Plaintiff's third cause of action is based on a theory of premises liability. In the complaint, plaintiff alleged that the District failed to provide a reasonably safe premises free from the presence of sexual predators. The District argues that the cause of action for premises liability is duplicative of the negligence causes of action.

Under a theory of premises liability, it is the duty of a property owner "to protect plaintiff from foreseeable harm caused by third persons" (Taft v Connell, 285 AD2d 992, 992 [4th Dept 2001]; see also Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]). Such duty is limited to conduct on the premises, which the owner had the opportunity to control and of which{**72 Misc 3d at 1056} the [*3]owner was reasonably aware (Taft at 992). This doctrine has been applied "not only in cases where the assailant was a stranger to the defendant, but also, as in the case here, where the underlying act was committed by an employee of the establishment" (JG v Goldfinger, 161 AD3d 640, 640 [1st Dept 2018]).

As stated above, the elements of a negligence cause of action are duty, breach and injury. "It cannot be disputed that the State has a public policy in favor of protecting children, and that a school has a duty to ensure the safety of its students in its physical custody or orbit of authority" (Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, 265 [2014] [internal quotation marks and citations omitted]). In addition to the duty to ensure the safety of students and breach of that duty, "it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury" (Mirand v City of New York, 84 NY2d 44, 49 [1994]).

[1] Therefore, as applicable here, the elements of a cause of action based on premises liability and the elements of a cause of action for negligence against the District are the same: a duty to protect; breach of that duty; notice; and injury. Moreover, a reading of the complaint reveals that the premises liability cause of action and the negligence causes of action are based on the same set of facts. Hence, the premises liability cause of action, as alleged, is duplicative of the negligence causes of action. (See generally Olney v Town of Barrington, 180 AD3d 1364, 1365 [4th Dept 2020]; see also Nouel v 325 Wadsworth Realty LLC, 112 AD3d 493, 494 [1st Dept 2013] [dismissing the premises liability claim on summary judgment as duplicative of the negligent hiring, retention and supervision claims].) As such, the District's motion to dismiss the third cause of action based on premises liability is granted.

Plaintiff's fourth cause of action is based on allegations that the District breached its statutory duty to report under Social Services Law §§ 413 and 420. In support of its motion to dismiss, the District argues that the Child Victims Act did not revive a cause of action based on violation of the Social Services Law. Pursuant to Social Services Law § 413, school officials, which include but are not limited to school teachers, school guidance counselors, school psychologists, school social workers, school nurses, school administrators or other school personnel required to hold a teaching or administrative license{**72 Misc 3d at 1057} or certificate, are required to report "when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child." (Social Services Law § 413 [1] [a].) Social Services Law § 420 (2) states that "[a]ny person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure."

[2] CPLR 208, entitled "Infancy, insanity," was amended by the state legislature in 2019 in conjunction with the Child Victims Act, to add subdivision (b). In relevant part, that subdivision states:

"Notwithstanding any provision of law which imposes a period of limitation to the contrary . . . with respect to all civil claims or causes of action brought by any person for physical, psychological or other injury or condition suffered by such person as a result of conduct which would constitute a sexual offense . . . committed against such person who was less than eighteen years of age . . . such action may be commenced, against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of said conduct, on or before the plaintiff or infant plaintiff reaches the age of fifty-five years." (Emphasis added.)

Based on the language of CPLR 208 (b) and the Child Victims Act, plaintiff's claims for [*4]breach of statutory duty to report abuse claims has been revived. The District's motion to dismiss based on CPLR 3211 (a) (5) is denied.

The District also argues that there is no basis for liability premised on the alleged failure to report abuse under Social Services Law § 413, because Lewis was not a "person legally responsible" for plaintiff's care. (Social Services Law § 413 [1] [a].) However, in Matter of Kimberly S.M. v Bradford Cent. School (226 AD2d 85 [4th Dept 1996]), the Fourth Department stated that

"[i]t is not the duty of the mandated reporter to assess whether the abuser would be considered by Family Court to be a 'person legally responsible' or whether a 'person legally responsible' allowed the abuse to occur. If she has reasonable cause to suspect that a child has been sexually abused, the{**72 Misc 3d at 1058} reporter must report immediately. It is the duty of the investigating agency to determine whether the report was founded" (id. at 90).

The Fourth Department went on to state that "[a] determination that liability for a failure to report is dependent upon whether the charges are founded or whether the child abuse petition is ultimately sustained would contravene the statutory purpose of encouraging prompt reporting, and we decline to follow that approach" (id. at 91; see also Matter of Catherine G. v County of Essex, 307 AD2d 446 [3d Dept 2003]). The District's motion to dismiss the fourth cause of action is denied.

The complaint contains references to breach of fiduciary duty, breach of duty to act in loco parentis and vicarious liability. The foregoing are not set forth as causes of action in the complaint. Rather, reference is made to breach of fiduciary duty, breach of duty to act in loco parentis and vicarious liability in the factual portion of the complaint. As this court determined in Torrey v Portville Cent. Sch. (66 Misc 3d 1225[A], 2020 NY Slip Op 50244[U] [Sup Ct, Cattaraugus County 2020]), those causes of action fail to state a claim in a case where child sexual abuse is alleged and/or are duplicative of the negligence causes of action. As such, the appropriate vehicle to remove such prejudicial references from a pleading is a motion to strike made pursuant to CPLR 3024 (b). The District's motion to dismiss is denied.

[3] Defendant next argues that the Child Victims Act violates the Due Process Clause of the New York State Constitution. This court also previously ruled on the issue of due process in Torrey v Portville Cent. Sch. (66 Misc 3d 1225[A], 2020 NY Slip Op 50244[U] [Sup Ct, Cattaraugus County 2020]), stating that

"[a] claim-revival statu[t]e will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice. (In re Matter of World Trade Center Lower Manhattan Disaster Site Litigation, 30 NY3d 377, 400 [2017]). The Legislative Memorandum for the Bill, which was later passed into law as the Child Victims Act, justifies passage for the Act as follows:

"New York is one of the worst states in the nation for survivors of child sexual abuse. New York currently requires most survivors to file civil actions or criminal charges against their abusers by the age of 23 at most, long before most survivors report{**72 Misc 3d at 1059} or come to terms with their abuse, which has been estimated to be as high as 52 years old on average. Because of these restrictive statutes of limitations, thousands of survivors are unable to sue or press charges against their abusers, who remain hidden from law enforcement and pose a persistent threat to public safety.

"This legislation would open the doors of justice to the thousands of survivors of child sexual abuse in New York State by prospectively extending the statute of limitations[.]

"Passage of the Child Victims Act will finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation [*5]discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties.

"(Legislative Mem, L 2019, ch 11, McKinney's Session Laws of NY Advance Sheets at A-39). Based on that justification, the Court finds the Child Victims Act a reasonable response to remedy an injustice. As such, it does not violate Portville's right to due process under the New York State Constitution." (Id. at *4 [internal quotation marks omitted].)

The same analysis applies here and the District's motion to dismiss the complaint on grounds that the revival clause of the Child Victims Act is unconstitutional is denied.

The District also argues that the Child Victims Act is unconstitutional as applied to the facts of this case, pointing out that the alleged abuse occurred approximately 36 years ago, and therefore revival unfairly prejudices the District's ability to mount a defense. A defendant may challenge a statute as being unconstitutionally vague on its face or as applied. (See People v Stuart, 100 NY2d 412, 421-424 [2003].) Here, the District argues that as applied, the Child Victims Act deprives it of the due process right to defend this matter. "An 'as-applied challenge' . . . requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right" (Field Day, LLC v County of Suffolk, 463 F3d 167, 174 [2d Cir 2006]). In support of the as applied challenge, the District submitted a memorandum of law only, claiming in summary that the District has no information regarding prior reports of abuse, that witnesses may{**72 Misc 3d at 1060} have died and that memories may be impaired. A memorandum of law that demonstrates no personal knowledge and is speculative at best is without evidentiary value. Therefore, the generalized conclusions contained within the memorandum of law do not establish that the law as applied deprives the District of due process. The District's motion to dismiss on the grounds that the Child Victims Act is unconstitutional as applied is denied.