PC-41 Doe v. Poly Prep Country Day School, William Williams, Michael Novello
20-CV-03628 (DG) (SJB)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
September 22, 2021
DIANE GUJARATI, United States District Judge
DIANE GUJARATI, United States District Judge:
This case arises out of sexual abuse allegedly perpetrated against Plaintiff PC-41 Doe by a Poly Prep Country Day School (Poly Prep) physical education teacher and coach, Philip Foglietta, while Doe was a student at Poly Prep. Plaintiff seeks to hold liable Defendant Poly Prep; Poly Prep‘s former headmaster from approximately 1970 to 2000, Defendant William Williams, and Poly Prep‘s former middle head from at least 1972 to 1983, Defendant Michael Novello (collectively, Defendants). Plaintiff brings his claims in seven counts: (1) negligent hiring, retention, supervision, and direction; (2) negligent, reckless, and willful misconduct; (3) negligent infliction of emotional distress; (4) premises liability; (5) breach of fiduciary non-delegable duty;1 (6) breach of duty in loco parentis; and (7) breach of statutory duties to report. See Complaint (Compl.) ¶¶ 160-214, ECF No. 1.
Pending before the Court is Defendants’ Motion to Dismiss Plaintiff‘s Complaint pursuant to
For the reasons set forth below, Defendants’ Motion to Dismiss is granted in part
BACKGROUND
I. Factual Background2
Plaintiff attended Poly Prep, a private college preparatory school located in Brooklyn, New York, from approximately fifth grade through twelfth grade in the 1970s and 1980s. Compl. ¶¶ 24, 41-42. Plaintiff alleges that, while there, he was repeatedly and unlawfully sexually abused for years by a Poly Prep physical education teacher and coach, Philip Foglietta. Id. ¶¶ 1-4. Foglietta, who worked for Poly Prep from approximately 1966 through 1991, id. ¶ 48, was Plaintiff‘s PE teacher in approximately fifth through seventh grade and Plaintiff‘s football coach in high school. Id. ¶¶ 55-56.
Plaintiff alleges that Foglietta, now deceased, id. ¶ 47, was a pedophile and sexual predator, who unlawfully sexually abused multiple students at Poly Prep between approximately 1966 and 1986, id. ¶¶ 51-53; see also id. ¶ 5. Foglietta‘s abuse of Plaintiff, which took place on school premises as frequently as several times per week, is alleged to have occurred between approximately 1976 and 1983, id. ¶¶ 12-13, 57-59, and to have included Foglietta touching and fondling Plaintiff‘s buttocks and genitals and penetrating Plaintiff‘s anus with his fingers, id. ¶ 60.
Plaintiff alleges that in approximately 1979-1980, he told a homeroom and music teacher, Michael Morangelli, about Foglietta‘s inappropriate conduct and was told that his report about Foglietta‘s behavior would be looked into. Id. ¶¶ 61-62. Plaintiff further alleges that Poly Prep did not, however, conduct a thorough investigation of Plaintiff‘s complaint regarding Foglietta, and Foglietta was not fired, removed, or made to resign during Plaintiff‘s years at Poly Prep or reported to law enforcement for criminal investigation by Defendants prior to or during Plaintiff‘s years at Poly Prep. Id. ¶¶ 63-65. As alleged, Foglietta continued to abuse Plaintiff after Plaintiff reported his abuse by Foglietta. Id. ¶ 67.
Plaintiff further alleges, largely based on information and belief, that several other students (and certain of their parents) told teachers and/or administrators at Poly Prep about Foglietta‘s actions prior to Foglietta‘s abuse of Plaintiff. See, e.g., id. ¶ 130.3 Plaintiff alleges, for example, that an eighth-grade student and his parents met in 1966 with Poly Prep‘s then-headmaster and then-athletic director, J. Folwell Scull and Harlow Parker, respectively, and accused Foglietta of repeated
Plaintiff alleges that Defendants engaged in a pattern of denying Foglietta‘s conduct, concealing his abusive behavior, conducting sham investigations, and failing to disclose the risk that Foglietta posed to the student body, their parents, and alumni at Poly Prep. Id. ¶ 72; see also id. ¶¶ 88-89, 97-99, 101-02, 106-07, 111-13, 126, 128-29 (alleging that Poly Prep declined to meaningfully investigate or take other action with respect to Foglietta in the face of various abuse allegations, and that Defendant Williams threatened to expel one student who raised accusations about Foglietta).
Foglietta‘s contract was allegedly not renewed in 1991. Id. ¶ 142. Although not made public at the time, see id. ¶¶ 143, 148-53, the determination not to renew Foglietta‘s contract resulted, as alleged, from the fact that Williams had received credible allegations that Foglietta had sexually abused a former student, id. ¶ 145.
II. Procedural Background
Plaintiff commenced this action on August 12, 2020. See Compl. On December 15, 2020, this case was reassigned to the undersigned. On December 18, 2020, Defendants moved to dismiss Plaintiff‘s Complaint. ECF No. 15; Defs.’ Br., ECF No. 15-1. On December 22, 2020, the Court stayed briefing to ensure full compliance with
I. The CVA Satisfies the Due Process Clause of the New York State Constitution
Defendants argue that the claim-revival statute under which this case has been brought, the Child Victims Act (CVA),
A. Standard of Review
Although [r]evival is an extreme exercise of legislative power, Regina Metro. Co., LLC v. N.Y. State Div. of Hous. & Cmty. Renewal, 35 N.Y.3d 332, 371 (2020) (alteration in original) (quoting Hopkins v. Lincoln Tr. Co., 233 N.Y. 213, 215 (1922)), New York‘s revival statutes — including the one at issue here — have been upheld. See In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F.3d 58, 69 (2d Cir. 2017) ([N]either party has cited to us, nor have we found, any case in which any New York state court has struck down any statute reviving expired claims.).
In 2017 — prior to the enactment of the CVA — the New York State Court of Appeals (Court of Appeals) clarified the standard of review that governs challenges to the constitutionality of a claim-revival statute under the New York Due Process Clause, holding that a claim-revival statute will satisfy the Due Process Clause of the [New York] State Constitution if it was enacted as a reasonable response in order to remedy an injustice. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 400 (2017) (hereinafter In re WTC).
B. Discussion
Defendants contend that the CVA fails to meet both prongs of the standard articulated by the Court of Appeals and therefore violates the New York Due Process Clause. Defendants argue that, because individuals covered by the CVA could have brought their claims within the limitations period, the CVA did not remedy an injustice. See Defs.’ Br. at 11 (citing Zumpano v. Quinn, 6 N.Y.3d 666, 676 (2006)). Defendants further argue that in requiring defendants (including the specific Defendants here) to defend against conduct that occurred long ago, the CVA is not a reasonable response to remedy an injustice. See id. at 16-17.
A review of the circumstances that led to the issuance of the In re WTC decision is instructive. The In re WTC decision was issued in response to a certified question from the United States Court of Appeals for the Second Circuit that asked which of two purportedly inconsistent standards of review found in prior New York State Court of Appeals decisions governs the constitutionality of a claim-revival statute under the New York Due Process Clause. 30 N.Y.3d at 393. Specifically, the question was whether the reasonableness standard adopted in Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271, 280 (1924), or the serious injustice standard adopted in Gallewski v. Hentz & Co., 301 N.Y. 164, 174 (1950), governs. In re WTC, 30 N.Y.3d at 393; see also In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F.3d at 70.6
The Court of Appeals in In re WTC explained that, although it did not read Robinson and Gallewski to be in substantial disagreement[,] . . . th[e] case present[ed] an opportunity for [the Court of Appeals] to reconcile them and articulate a uniform standard of review. In re WTC, 30 N.Y.3d at 394. The Court of Appeals proceeded to do just that. After explaining that its prior claim-revival statute cases had taken a . . . functionalist approach, weighing the defendant‘s interests in the availability of a statute of limitations defense with the need to correct an injustice, id., the Court of Appeals went on to describe (chronologically) each of the cases in which it previously had addressed the constitutionality of a claim-revival statute under the New York Due Process Clause — Robinson, Gallewski, McCann v. Walsh Construction Co., 282 A.D. 444 (3d Dep‘t 1953), aff‘d, 306 N.Y. 904 (1954), and Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989).
As the Court of Appeals set forth in In re WTC: In Robinson, following the death of her husband, the plaintiff applied for and received a workers’ compensation award, which, at the time, was by law her exclusive remedy against the defendants. In re WTC, 30 N.Y.3d at 395. Those benefits were, however, cut off approximately two years after the husband‘s death, when the United States Supreme Court struck down the applicable New York workers’ compensation provision as unconstitutional. Id. Plaintiff thereafter brought a wrongful death action against the defendants. Id. However, at the time, such actions were subject to a two-year statute of limitations, and plaintiff‘s action was brought after the two-year period had run. Id. In response to the Supreme Court‘s action, the New York State Legislature (the Legislature)
The Court of Appeals in Robinson upheld the claim-revival statute. See Robinson, 238 N.Y. at 273-80. In doing so, the Robinson court concluded that there had been no arbitrary deprivation by the Legislature of the rights of one party in order to confer a new right upon another party, and that the statute afforded a plaintiff a reasonable opportunity to bring an action. See id. at 280. The Court of Appeals in In re WTC explained that its holding in Robinson was slightly more demanding than pure reasonableness, and that Robinson held that the Due Process Clause of the State Constitution is satisfied if there was an apparent injustice which calls for a remedy, and which is reasonable and not arbitrary. In re WTC, 30 N.Y.3d at 399 (quotation marks and alterations omitted). The Court of Appeals in In re WTC went on to explain that its next claim-revival statute case, Gallewski, expressly reaffirmed the Robinson standard. Id.
The Gallewski case involved an action by the administrator of the estate of an individual whose New York brokerage account had been the subject of unauthorized transactions within days of the individual having been arrested and deported to a concentration camp, where he ultimately perished. See In re WTC, 30 N.Y.3d at 396. The discovery of the unauthorized transactions did not, however, take place until after the applicable statute of limitations had run. See id. The revival statute in that case, which was upheld, revived for one year certain claims for citizens of Axis-occupied countries during the period of such occupation. Id.; see also Gallewski, 301 N.Y. at 172-75.
After discussing Robinson and Gallewski and noting that [a]ny purported dichotomy between [their] holdings is illusory,7 the Court of Appeals discussed its McCann and Hymowitz cases. See In re WTC, 30 N.Y.3d at 397-99. In McCann, the Court of Appeals affirmed (without opinion) a Third Department decision finding constitutional certain amendments to the workers’ compensation law that revived claims related to diseases, including caisson disease, where the right to compensation might be barred by the operation of the Statute of Limitations even before the claimant was aware of the fact that he had the disease. McCann, 282 A.D. at 445-50. And in Hymowitz, the Court of Appeals upheld a statute that revived for one year certain claims related to diethylstilbestrol (DES), a drug taken by women during pregnancy that could give rise to latent injuries. See Hymowitz, 73 N.Y.2d at 502-04, 513-16.
In making that determination in the instant case, the Court, as an initial matter, rejects Defendants’ suggestion that a claim-revival statute comports with the New York Due Process Clause only if the covered plaintiffs had a total and practical inability to bring a timely claim.
First, the Court of Appeals pre-In re WTC did not establish any such general requirement. Not in Robinson, not in Gallewski, not in McCann, and not in Hymowitz. And, indeed, in Hymowitz, the Court of Appeals expressly condoned a revival statute — notwithstanding the defendants’ contention that it may be unconstitutionally applied in cases in which the plaintiff could have sued originally, but did not — that revived claims for individuals who may have known of their injuries a day, or a week, a month, or perhaps longer, before the original limitations period ran. 73 N.Y.2d at 514-15 (emphasis added). In the Court of Appeals’ view in Hymowitz, the Legislature properly determined under the circumstances that it would be more fair for all plaintiffs to uniformly . . . have one year to bring their actions. Id.8
Further, the Court of Appeals in In re WTC, while expressly taking the opportunity . . . to . . . articulate a uniform standard of review for claim-revival statutes, 30 N.Y.3d at 394, did not set forth a requirement that, in order to satisfy the New York Due Process Clause, a claim-revival statute must permit the bringing of only those claims as to which plaintiffs had a total and practical inability to file within the original statute of limitations. Rather, the rule articulated by the Court of Appeals provides only that a claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice. See Id. at 400. And, the Court of Appeals expressly stated that a more heightened standard would be too strict. Id.; see also Giuffre, 2020 WL 2123214, at *2 (in face of argument that CVA is unconstitutional because victim plaintiff could have bought claim within original statute of limitations, discussing In re WTC and concluding that CVA‘s claim-revival provision meets manageable bar set forth by Court of Appeals). This Court declines to read into the rule clearly articulated by
Moreover, the Court notes that Defendants’ urging that there be a rigid requirement of a total and practical inability to bring a timely claim by plaintiffs for a claim-revival statute to pass constitutional muster is inconsistent with the approach taken by the Court of Appeals in claim-revival cases. As indicated above, the Court of Appeals has considered each claim-revival statute in the context of the particular facts and circumstances at issue. See Gallewski, 301 N.Y. at 174 (The tests suggested in the Robinson case . . . leave the court free to approach each revival statute on its individual merits, in the light of its own peculiar circumstances and setting.); In re WTC, 30 N.Y.3d at 394-95 ([O]ur cases have taken a more functionalist approach, weighing the defendant‘s interest in the availability of a statute of limitations defense with the need to correct an injustice. Each time we have spoken on this topic, we described circumstances that would be sufficient for a claim-revival statute to satisfy the State Due Process Clause, with specific reference to the facts then before us.).
Thus, although a total and practical inability to timely bring claims may well be sufficient for a revival statute to comport with the New York Due Process Clause, it has not been deemed necessary.9 Concomitantly, the Zumpano court‘s conclusion that sexual abuse victims could have timely brought claims does not render the CVA unconstitutional.10
As set forth more fully below, an application of the In re WTC standard here — rather than the alternative standard urged by Defendants — leads the Court to conclude that the CVA is constitutional under the New York Due Process Clause.
1. The CVA Seeks to Remedy an Injustice
The Court is persuaded that the CVA seeks to remedy an injustice.
The Sponsor‘s Memorandum in support of the CVA states:
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 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.
N.Y. State Assembly Mem. Supp. Legislation, reprinted in Bill Jacket for 2019 S.B.
Consistent with the revival statute cases cited above, including the latent injury cases, the Legislature here identified a serious harm as well as a substantial barrier to timely filing by plaintiffs seeking redress — specifically that most survivors report or come to terms with their abuse long after the abuse occurred. See N.Y. State Assembly Mem. Supp. Legislation, reprinted in Bill Jacket for 2019 S.B. 2440, Ch. 11, at 7 (Jan. 29, 2019) (noting that the age at which survivors report or come to terms with their abuse has been estimated to be as high as 52 years old on average); see also Giuffre, 2020 WL 2123214, at *2. In response, the Legislature was moved . . . to act, see In re WTC, 30 N.Y.3d at 400, and enacted the CVA. The CVA was enacted to remedy an injustice identified by the Legislature that results from applying restrictive statutes of limitation to claims of childhood sexual abuse. See N.Y. State Assembly Mem. Supp. Legislation, reprinted in Bill Jacket for 2019 S.B. 2440, Ch. 11, at 7-8 (Jan. 29, 2019) (noting that [b]ecause of the[] restrictive statutes of limitations, thousands of survivors are unable to sue, and concluding that passage of the CVA will finally allow justice).
Accordingly, the CVA satisfies the first requirement of the rule set forth by the Court of Appeals in In re WTC.
2. The Legislature‘s Enactment was a Reasonable Response
The Court is further persuaded that the CVA is a reasonable response to the identified injustice. See In re WTC, 30 N.Y.3d at 400. The CVA provides a means by which victims of childhood sexual abuse can pursue their claims through the judicial system, and there is no indication that the CVA is an arbitrary remedy. See Id. at 399 (explaining that the remedy must be reasonable and not arbitrary); see also Hymowitz, 73 N.Y.2d at 514.
In contending that the CVA does not meet the reasonable response standard, see Defs.’ Br. at 16-17, Defendants make one broadly applicable argument, and one argument specific to them. As to the former, Defendants contend that complained-of acts covered by the CVA may have occurred long ago, making them difficult if not impossible to defend. See id. at 16. As to the latter, Defendants assert that they would have made different strategic choices had they known that these sorts of claims would be revived. See id. at 17. Neither argument is persuasive.
Second, to the extent Defendants’ argument implies that the CVA should have been limited in some respect to cut off claims from long ago — e.g., that only claims that accrued in the 1990s or thereafter should have been revived — such an argument ignores that the Legislature is entitled to make determinations about fair[ness] across plaintiffs, see Hymowitz, 73 N.Y.2d at 515, and that the very harm the CVA seeks to address is one that the Legislature evidently believed can take many years to be recognized and acted upon, see N.Y. State Assembly Mem. Supp. Legislation, reprinted in Bill Jacket for 2019 S.B. 2440, Ch. 11, at 7-8 (Jan. 29, 2019). The Court cannot conclude that the Legislature‘s choice in this regard was arbitrary.11
Given the harm the Legislature sought to address and the absence of identified unique concerns with the CVA as compared to other revival statutes, the Court is not persuaded by Defendants’ arguments that the CVA is unreasonable.12
Additionally, although not raised by Defendants, the Court notes that the Court of Appeals has also considered the length of the revival window in assessing whether revival statutes are reasonable responses. See In re WTC, 30 N.Y.3d at 400 ([I]n each case, the legislature‘s revival of the plaintiff‘s claims for a limited period of time was reasonable in light of th[e] injustice. (emphasis added)). In view of that consideration, too, the CVA is reasonable. The Court of Appeals has previously condoned one-year revival windows, see, e.g., Robinson, 238 N.Y. at 276-80; Gallewski, 301 N.Y. at 172-75; Hymowitz, 73 N.Y.2d at 513-16, and the reopening of the limitations period under the CVA was nearly as brief — one year to file, see 2019 N.Y. Sess. Laws ch. 11, § 3,13
Accordingly, in light of the foregoing and consistent with the decisions of the other courts that have opined on this issue, the Court concludes that the Legislature‘s response was reasonable and not arbitrary in light of the identified injustice, and that the CVA, therefore, comports with the requirements of the New York Due Process Clause. See In re WTC, 30 N.Y.3d at 394 (noting that the Court of Appeals has generally weigh[ed] the defendant‘s interests in the availability of a statute of limitations defense with the need to correct an injustice); see also Doe v. Hartford Roman Cath. Diocesan Corp., 317 Conn. 357, 441-42 (2015) (Given the unique psychological and social factors that often result in delayed reporting of childhood sexual abuse, which frustrated the ability of victims to bring an action under earlier revisions of the statute of limitations, we cannot say that the legislature acted unreasonably or irrationally in determining that the revival of child sexual abuse victims’ previously time barred claims serves a legitimate public interest and accomplishes that purpose in a reasonable way.).
II. The First and Second Counts May Proceed and the Third through Seventh Counts are Dismissed
A. Standard of Review
To survive dismissal for failure to state a claim pursuant to
B. Plaintiff‘s Negligent Hiring, Retention, Supervision, and Direction Claim May Proceed
In Plaintiff‘s first claim, Plaintiff seeks to hold Defendants liable for negligently hiring, retaining, supervising, and directing Foglietta. Such a claim typically
Defendants do not dispute that Plaintiff‘s negligent hiring, retention, supervision, and direction claim against Poly Prep and Williams is sufficiently pled insofar as it concerns Foglietta‘s retention, supervision, and direction. See Defs.’ Br. at 18-21 & n.4. And, in any event, Plaintiff has indeed alleged, in addition to the standard elements of negligence, that Foglietta was a Poly Prep employee, see, e.g., Compl. ¶¶ 2, 4; that, at a minimum, Poly Prep and Williams had knowledge or were on notice of Foglietta‘s propensity and/or acts after he was hired but prior to Plaintiff‘s injuries, see, e.g., id. ¶¶ 58, 86-87, 96, 103-04,
Instead, Defendants offer several reasons for dismissing the negligent hiring portion of Plaintiff‘s first claim. Defendants first contend that negligent hiring is limited to prospective employees, which Foglietta ceased being after his initial hiring in 1966, see Defs.’ Br. at 18-21; see also Defs.’ Reply at 5, and that Plaintiff has neither alleged that Poly Prep knew or had notice of Foglietta‘s propensity for abuse in 1966 (or had reason to inquire further into Foglietta prior to his 1966 hiring) nor that Williams or Novello was involved in Foglietta‘s hiring at that time, see Defs.’ Br. at 18-21. In opposition, Plaintiff argues that his negligent hiring claim should stand because the Complaint alleges that Foglietta‘s contract was ultimately not renewed in 1991 — permitting the reasonable inference that Foglietta was a contract employee subject to periodic rehiring — and that the individual Defendants were in administrative positions during the years of Plaintiff‘s abuse and Foglietta‘s rehiring — permitting the reasonable inference that they would have taken part in Foglietta‘s rehiring. See Pl.‘s Br. at 27-29. Neither party has cited to a case directly on point.
Although Plaintiff has not adequately alleged negligence in connection with Foglietta‘s 1966 hiring, a negligent hiring claim can lie when an employer rehires an employee. Cf. Detone v. Bullit Courier Serv., Inc., 140 A.D.2d 278, 279-80 (1st Dep‘t 1988) (discussing negligent hiring claim where the employee had been fired and rehired); Kirk v. Metro. Transp. Auth., No. 99-CV-03787, 2001 WL 258605, at *12 (S.D.N.Y. Mar. 14, 2001) (finding a genuine issue of material fact as to negligent hiring where plaintiff adduced evidence that, inter alia, the entity defendant “failed to further evaluate” one of its employees “before rehiring him after new evaluations revealed [certain] propensities“). And it is a reasonable inference from Plaintiff‘s allegation that Foglietta‘s contract was ultimately not renewed, see Compl. ¶ 142, that Foglietta was a contract employee and, as such, was rehired on a periodic basis, including in the years Plaintiff was a student. Likewise, it can be reasonably inferred that the headmaster of Poly Prep, id. ¶ 35, and the head of its middle and/or lower school, id. ¶¶ 38, 79, were involved in the rehiring of an employee who taught and/or coached, at a minimum, fifth grade through seventh grade and high school students, see id. ¶¶ 55-56. Accordingly, Plaintiff‘s allegations are sufficient at this stage.
Defendants further argue that Plaintiff‘s first claim should be dismissed in its entirety as to Novello because Plaintiff has not plausibly alleged that Novello was on notice of Foglietta‘s conduct. See Defs.’ Br. at 34-35. With respect to Novello‘s knowledge or notice, Plaintiff alleges that Williams “has testified that he believed that he discussed” a student‘s accusations that Foglietta was abusing students “with [Harlow] Parker or Defendant Novello.” Compl. ¶ 109. Plaintiff further alleges “on information and belief” that “prior to and/or by the time of Plaintiff‘s abuse by Foglietta, . . . Novello had been advised of reports of Foglietta‘s sexually abusing students.” Id. ¶ 110. Notwithstanding Defendants’ assertion to the contrary, see Defs.’ Br. at 34, Plaintiff‘s allegation regarding Williams‘s alleged statement is not conclusory. And, although Williams apparently did not definitively state that he told Novello, it is nevertheless plausible for present purposes
Defendants’ motion to dismiss Plaintiff‘s first claim is, therefore, denied.
C. Plaintiff‘s Negligent, Reckless, and Willful Misconduct Claim May Proceed
Count Two of the Complaint is entitled “negligent, reckless, and willful misconduct.” See Compl. ¶¶ 173-84. The Court understands Plaintiff to be alleging in this Count three separate but largely overlapping torts: negligence, gross negligence, and willful misconduct.
The first three elements of these three claims are the same: (1) the existence of a duty, (2) a breach of that duty, and (3) injury caused by the breach. See Pasternack, 807 F.3d at 19 (“The elements of a negligence claim under New York law are: ‘(i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach.‘” (quoting Lombard, 280 F.3d at 215)); Taylor Precision Prod., Inc. v. Larimer Grp., Inc., No. 15-CV-04428, 2018 WL 4278286, at *18 (S.D.N.Y. Mar. 26, 2018) (noting that the first three elements of “[a] claim of gross negligence or willful misconduct [are] . . . : ‘(1) the existence of a duty; (2) a breach of that duty; [and] (3) injury as a result thereof‘” (quoting Purchase Partners, LLC v. Carver Fed. Sav. Bank, 914 F. Supp. 2d 480, 497 (S.D.N.Y. 2012))); see also Pasternack v. Lab‘y Corp. of Am., 892 F. Supp. 2d 540, 552 (S.D.N.Y. 2012) (“Where a claim for ordinary negligence fails, a gross negligence claim necessarily fails.“).
The latter two claims additionally require allegations of “conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing.” Taylor Precision Prod., Inc., 2018 WL 4278286, at *18. Said otherwise, “gross negligence and willful misconduct are tort claims of a similar strain, with a slight disparity between their fourth elements: ‘while gross negligence involves a devil-may-care attitude or indifference to duty amounting to recklessness, willful misconduct has been defined as a conscious indifference or I don‘t care attitude which is the prerequisite of wanton behavior.‘” Id. at *18 n.13 (alterations adopted) (quoting Coco Invs., LLC v. Zamir Manager River Terrace, LLC, 26 Misc. 3d 1231, at *5 (N.Y. Sup. Ct., N.Y. Cnty. 2010)).
Here, Plaintiff has plausibly alleged the first three elements of his negligence, gross negligence, and willful misconduct claims. Starting with the duty element, it is well settled that “[i]n New York, schools are under a special duty of in loco parentis,” Hammond v. Lincoln Tech. Inst., Inc., No. 10-CV-01933, 2012 WL 273067, at *6 (E.D.N.Y. Jan. 30, 2012), which obligates them to “exercise such care of [their charges] as a parent of ordinary prudence would observe in comparable circumstances,” Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994) (quoting Hoose v. Drumm, 281 N.Y. 54, 57-58 (1939)). “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students.” Mirand, 84 N.Y.2d at 49. Nevertheless, by virtue of “assuming physical custody and control over [their] students” and “effectively tak[ing] the place of parents and guardians,” schools “must ‘adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.‘” Hammond, 2012 WL 273067, at *6 (quoting Mirand, 84 N.Y.2d at 49); see also, e.g., Meyer v. Magalios, 170 A.D.3d 1163, 1164 (2d Dep‘t 2019).16
As for Defendants’ breach, “[t]he standard to determine whether the school has breached its duty [to students] is to compare the school‘s supervision and protection to that of ‘a parent of ordinary prudence placed in the identical situation and armed with the same information.‘” Dia CC, 304 A.D.2d at 956 (quoting Mary KK. v. Jack LL., 203 A.D.2d 840, 841-42 (3d Dep‘t 1994)); see Zimmerman v. Poly Prep Country Day Sch., 888 F. Supp. 2d 317, 335 (E.D.N.Y. 2012). “[T]he adequacy of supervision and proximate cause . . . are generally factual questions for the jury.” Wood v. Watervliet City Sch. Dist., 30 A.D.3d 663, 664 (3d Dep‘t 2006); see also Pasternack, 807 F.3d at 19 (“[J]uries determine whether and to what extent a particular duty was breached.“); Lombard, 280 F.3d at 216 (noting that causation is an issue “generally and more suitably entrusted to fact finder adjudication“).
Drawing all reasonable inferences in Plaintiff‘s favor, given, for example, the number of alleged incidents of abuse, see, e.g., Compl. ¶¶ 52-53, 59, Defendants’ alleged knowledge of at least some of those abuses, see, e.g., id. ¶¶ 85-112, Foglietta‘s alleged “unfettered access” to students, id. ¶ 175, Plaintiff‘s allegation that he continued to be abused on school premises after reporting his abuse, id. ¶ 67, Plaintiff‘s allegation that the school “failed to have in place” sufficient measures to monitor, supervise, or oversee students’ interactions with Foglietta, id. ¶ 179, and Plaintiff‘s allegations that Defendants did not meaningfully investigate or respond to accusations of abuse, see e.g., id. ¶¶ 63, 72, 81, 88-89, 98-99, 101-02, 106, 111-13, 128-29, 174, through which they could possibly have learned more of the need for further student supervision, Plaintiff has plausibly alleged that the level of supervision and protection provided by Defendants fell below that of an identically situated, ordinarily prudent parent. And Plaintiff has plausibly alleged that Defendants’ failures in these regards were a substantial cause of his injuries.
Accordingly, Plaintiff has plausibly alleged negligence, and that claim may proceed at this juncture.17
Plaintiff‘s gross negligence and willful misconduct claims also may proceed at this juncture.
D. Plaintiff‘s Negligent Infliction of Emotional Distress (“NIED“), Premises Liability, and Breach of Duty In Loco Parentis Claims are Dismissed
“Under New York law, claims are duplicative when both arise from the same facts and seek the identical damages for each alleged breach.” Deutsche Bank Nat. Tr. Co., 810 F.3d at 869 (quotation marks omitted); see also, e.g., Frank v. OOO RM Inv., No. 17-CV-01338, 2020 WL 7022317, at *18 (E.D.N.Y. Nov. 30, 2020) (“[I]t is not the theory behind a claim that determines whether it is duplicative, but rather the conduct alleged and the relief sought.” (quoting MIG, Inc. v. Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., 701 F. Supp. 2d 518, 532 (S.D.N.Y. 2010)), aff‘d, 410 F. App‘x 408 (2d Cir. 2011)). Here, Plaintiff‘s third, fourth, and sixth claims are dismissed as duplicative of Plaintiff‘s first and second claims.18
Indeed, Plaintiff virtually concedes that his in loco parentis claim is subsumed within his negligence claim. See Tr. at 21 (“I‘m happy for [breach of duty in loco parentis] to be subsumed within another count . . . .“); Pl.‘s Br at 32-33 (“Whether in loco parentis is classified as a claim or simply a way to prove that Defendants owed the plaintiff a duty is a distinction without a difference.“); compare Pl.‘s Br. at 33 (discussing Plaintiff‘s sixth claim and noting “there is no question that a school has a duty to adequately supervise students in its care, and may be held liable for injuries that are foreseeable and proximately related to the school‘s failure to provide adequate supervision“), with Compl. ¶ 176 (describing, under Plaintiff‘s second claim, Poly Prep‘s duty to “keep students safe from sexual abuse . . . and to prevent the harm that ultimately affected the Plaintiff“).
And, in similar CVA actions, both NIED and premises liability claims have been dismissed as duplicative of other tort claims.19 See, e.g., Lawrence K. v. Westchester Day Sch., 196 A.D.3d 637, 148 N.Y.S.3d 382, 383 (2d Dep‘t 2021) (affirming dismissal of premises liability claim related to sexual assault by a day school teacher as duplicative of plaintiff‘s “negligent supervision and negligent retention causes of action” where the two were based on “the same facts” and did not allege “distinct damages“); PC-4 Doe v. Archdiocese of New York, No. 950203/2020, 2021 WL 2719337, at *3-4 (N.Y. Sup. Ct., N.Y. Cnty. July 1, 2021) (dismissing NIED claim as duplicative of negligence causes of action and dismissing premises liability claim as duplicative of negligent hiring, retention, supervision and/or direction claim); PB-36 Doe, 2021 WL 3044998, at *2 (dismissing premises liability claim as duplicative of negligence causes of action); Torrey, 66 Misc. 3d 1225(A) at 3 (dismissing NIED claim as duplicative of negligence causes of action). Additionally, courts have dismissed NIED and premises liability claims relating to sexual assault as
Plaintiff‘s NIED, premises liability, and in loco parentis claims are dismissed.
E. Plaintiff‘s Breach of Statutory Duties to Report Claim is Dismissed in Light of the Then-Applicable Statutory Framework
Count Seven of the Complaint alleges that Defendants knowingly, willfully, and intentionally breached their statutory duty, pursuant to
1. Applicable Statutory Framework
During the relevant time period, Section 413 provided that “school official[s]” must “report or cause a report to be made . . . when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused . . . child.” See 1973 N.Y. Sess. Laws ch. 1039, § 1;
2. Discussion
Applying the law applicable during the relevant time period, the Court considers whether Foglietta — as a teacher and coach — necessarily qualified as “legally responsible” for the students he allegedly abused such that any knowledge of the alleged abuse by Defendants necessitated filing a report, and whether, if not, taking Plaintiff‘s allegations as true and drawing all reasonable inferences in Plaintiff‘s favor, the circumstances allegedly described to Defendants provided them with reasonable cause to believe that Foglietta was “legally responsible” for the students he abused such that they were abused children within the meaning of the Social Services Law and the Family Court Act.21
As to the second question, Plaintiff has not plausibly alleged that the circumstances described to Defendants provided them with reasonable cause to believe that the abuse involved abused children within the meaning of the Social Services Law and the Family Court Act. As alleged in the Complaint, the children (in some cases with their parents) informed Defendants (or a subset thereof) that they — or others — were being abused at school by a physical education teacher and coach. These allegations do not suggest that the children or parents conveyed information suggesting that Foglietta was “legally responsible,” as the term is used in the Social Services Law, for the students he allegedly abused. Nor do these allegations suggest that the parents of allegedly abused students were allowing the abuse to happen. Accordingly, the Court concludes — based on the legal requirements at the time — that Defendants did not have a duty to report Foglietta‘s abuse under Section 413.22
Two features of the law in this area further support this conclusion. First, the Family Court Act “contemplates intervention in relationships between children and their parents (or guardians or custodians).” Catherine G., 3 N.Y.3d at 180; see also
Plaintiff‘s breach of statutory duties to report claim is dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 15, is granted in part and denied in part. Counts One and Two of the Complaint may proceed at this juncture. Counts Three through Seven of the Complaint are dismissed.
SO ORDERED.
/s/ Diane Gujarati
DIANE GUJARATI
United States District Judge
Dated: September 22, 2021
Brooklyn, New York