Doe v Chenango Val. Cent. School Dist.
2012 NY Slip Op 00697 [92 AD3d 1018]
February 2, 2012
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 28, 2012


Jane Doe, as Parent and Guardian of Jessica Doe, an Infant, Respondent, v Chenango Valley Central School District et al., Appellants.

—[*1] Law Firm of Frank W. Miller, East Syracuse (Bryan Georgiady of counsel), for appellants.

Young & Young, Binghamton (Mark H. Young of counsel), for respondent. Malone Jr., J. Appeal from that part of an order of the Supreme Court (Lebous, J.), entered April 1, 2011 in Broome County, which partially denied defendants' motion for, among other things, summary judgment dismissing the complaint.

While on a field trip in 2004, Jessica Doe and Jennifer Doe, among others, were sexually abused by Willard Setzer, a former employee of defendant Chenango Valley Central School District. In 2005, Setzer pleaded guilty to sexual abuse in the first degree and, thereafter, plaintiff, Jessica Doe's mother, commenced this action against the School District and defendants Board of Education of Chenango Valley Central School District and Chenango Bridge Elementary School, alleging, among other things, the negligent retention and supervision of Setzer and the negligent supervision of Jessica Doe.[FN*] Defendants moved for summary judgment [*2]dismissing the complaint, as well as for dismissal based upon plaintiff's alleged failure to prosecute. Supreme Court denied the part of the motion seeking dismissal of the claims of negligent retention and supervision of Setzer and the negligent supervision of Jessica Doe. The court also denied that part of defendants' motion seeking dismissal for failure to prosecute. Defendants appeal.

Defendants contend that Supreme Court erred in denying summary judgment with respect to plaintiff's claims of negligent retention and supervision of Setzer and negligent supervision of Jessica Doe. Defendants also contend that Supreme Court should have dismissed the complaint as a result of plaintiff's alleged failure to prosecute. Defendants' contentions in this case mirror those of the companion case of Doe v Chenango Valley Cent. School Dist. (92 AD3d 1016 [2012] [decided herewith]), wherein we hold that issues of fact exist with respect to the claims of negligent retention and supervision of Setzer and negligent supervision of Jennifer Doe, and that the contentions with respect to the motion for dismissal based upon failure to prosecute are without merit. Considering that the evidence in the record in the instant case is virtually identical to that of the companion case, we affirm Supreme Court's order for the reasons stated therein.

Peters, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, with costs.

Footnotes


Footnote *: Joan Doe, the mother of Jennifer Doe, commenced a separate action asserting the same causes of action against the School District (Doe v Chenango Val. Cent. School Dist., 92 AD3d 1016 [2012] [decided herewith]). Joan Doe did not name the Board of Education or the elementary school as defendants.