In this personal injury action, defendant PSCH, Inc. (PSCH or defendant) moves, pursuant to CPLR 3212, for summary judgment in its favor dismissing the complaint in its entirety.

Factual Background

Plaintiff Kimberly Creekmore (Creekmore or plaintiff) was a patient (consumer, in PSCH's terminology) in defendant's Apartment Treatment Program (ATP), where psychiatric patients, living in scattered-site housing, are offered supportive treatment without 24-hour supervision. She was placed in ATP in 2003, after receiving clinical and case management services from Creedmoor Psychiatric Center (Creedmoor) for approximately 16 years. ATP patients are considered to be able to conduct activities of daily living for themselves, such as shopping and cooking, and live with one or more roommates. At some point, Creekmore was referred to PSCH's Intensive Psychiatric Rehabilitation Program (IPRT) which attempts to set housing, education and employment goals for patients.

The verified complaint alleges that plaintiff sustained severe physical and psychological injuries when defendant's now former employee, Daniel James (James), while "acting in the scope of his employment, violently, intentionally and without provocation sexually assaulted plaintiff and performed sexual acts with plaintiff" on one or more occasions in February 2003 while plaintiff was receiving care at defendant's facility and residing in an apartment PSCH provided. Complaint, at Ex. A to motion, ¶¶ 7-8. It is undisputed that Creekmore and James [*2]engaged in sexual activity ^[FN1] which ultimately resulted in PSCH terminating his employment in April 2003 and criminal charges being brought against him.^[FN2]

According to records obtained from the Queens County District Attorney, on February 28, 2003, New York City police detective George Nagy (Nagy) and another police detective interviewed plaintiff at her residence when she contacted them after a sexually-charged argument with another patient and a PSCH staff member. On that same date, the detectives separately interviewed Paulette Elbers (Elbers), whom plaintiff regarded as a mother because of Elbers' professed concern for her.^[FN3] Nagy prepared a report of these interviews (the Nagy 2/28 Report, Motion, Ex. N),^[FN4] which inter alia indicates that Creekmore told the police that James (identified in the Nagy 2/28 Report as DJ or Danny) raped her on more than one occasion after luring her into his automobile.

Specifically, the Nagy 2/28 Report indicates that plaintiff reported that during the week of February 10-14, 2003, James drove up to her and a fellow patient while they were walking to the bus after leaving defendant's center. He flirted with them and offered them a ride, which they refused. The next day, on the same route, "with her friend Patricia," James again pulled up and [*3]offered them a ride. When they refused again, James allegedly threatened to "take your Mommy away." Id. Both women entered his car and rode to plaintiff's apartment in Jamaica, Queens, where James sexually assaulted plaintiff.

The Nagy 2/28 Report further indicates that James met the women three more times. Plaintiff told Nagy that her friend told her that she "was going through the same situation with the deft. [James]," and asked plaintiff to commit suicide with her. Plaintiff refused but her friend committed suicide on a later date.^[FN5] According to PSCH's former employee, Kelly Corkhill-Lauletta (Corkhill-Lauletta), the suicide evoked a reaction from plaintiff, who "went back to the police ^[FN6] and insinuated that the death was in response to Mr. James' behavior." Corkhill-Lauletta Transcript at Ex. A to Corkhill-Lauletta Aff., at 62.

Corkhill-Lauletta was deposed on October 25, 2011 and submits an affidavit in support of PSCH's motion. She testified that in 2003 PSCH employed her as an assistant director for Case Management Services and she conducted Creekmore's initial evaluation. Id. at 41. According to Corkhill-Lauletta, plaintiff was removed from Creedmoor and transferred to one of defendant's programs because she had made unfounded accusations against a Creedmoor staff member. Id.

Corkhill-Lauletta found plaintiff to be a difficult patient. She "was quite regularly in active crisis. She had difficulty getting along with her roommate." Id. at 45. Corkhill-Lauletta testified that Elbers "was manipulative and was trying to — was sabotaging treatment;" that plaintiff was accused by roommates of taking things; that there "was always a male presence in the apartments that [plaintiff] was in;" and that plaintiff would make accusations against male staff members about sexual relationships. Id. at 45-46.

As a result of plaintiff's "poor attendance at her other clinical day treatment programs," coupled with the observation that "her behavior was erratic, [and] there were often accusations," she was moved into a 24-hour supervised residence and enrolled in IPRT, although the precise time and sequence of these changes in location and status were unspecified. Id. at 57. While at an IPRT session (presumably on February 26, 2003), in Corkhill-Lauletta's words, plaintiff "was reported to have made a sexual advance towards one of the other consumers. He declined her. She became angry. She kicked at him, she spit on him." Id. at 60. Two staff members intervened, which allegedly further agitated plaintiff. Id. at 60-61. By Corkhill-Lauletta's account, after Creekmore left the facility she called her intensive case manager and contacted the police on February 27, 2003, implicating James. Id. at 61.

At her depositions Creekmore testified that James never worked directly with her but she saw him in the back of classrooms when she was in IPRT.^[FN7] Creekmore II at 114-115. At her [*4]second deposition plaintiff stated, for the first time, that James had raped her in one of defendant's classrooms on or about February 10, 2003 during a lunch period, before the encounters on her way home occurred. Id. at 147-149. After the classroom encounter, plaintiff alleges that she reported the incident to Raphael Moreira (Moreira),^[FN8] the program director for IPRT. Id. at 158. Plaintiff claimed that Moreira dismissed her complaint, stating "you are not going to make me look bad." Id. She did not call the police because Moreira threatened "to put me in some bad place and I would really be hurt." Id. at 159.

At another deposition, plaintiff claimed that she told Moreira twice, first orally, then in writing, about James' alleged abuse of Lyeth. Creekmore III at 242-245. Moreira reportedly said nothing in response on the first occasion. Id. at 245. When plaintiff gave him a written note, he allegedly said that "I better not do anything to make their place look bad, and if I ever said that out of my mouth again he was going to put me in a bad place." Id. at 247. At a previous deposition Creekmore testified that she told a PSCH staff member named Linda about her own classroom rape. Creekmore II at 160. Linda allegedly took plaintiff to Moreira's office, but "he said I told you to stop saying this stuff . . . [and] he was very angry." Id. at 161.

Plaintiff commenced the instant action on April 13, 2005 asserting causes of action for negligence, negligent hiring, retention and supervision, and violation of an implied warranty of safety. Motion, Ex. A. On January 30, 2007, this court appointed a Guardian ad Litem (GAL) for plaintiff in order to protect her rights in the instant action. On January 7, 2011, Supreme Court, Queens County, appointed SelfHelp Community Services, Inc. (SelfHelp), as plaintiff's guardian with her consent. Motion, Ex. L.

Analysis

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007), citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact.'" People v Grasso, 50 AD3d 535, 545 (1st Dept 2008), quoting Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied. Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978); Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 (1st Dept 2002).

Creekmore has had a long history of mental health problems. She listed her disabilities as "[p]osttraumatic stress, by bipolar disorder, schizophrenia, anxiety and borderline personality disorder." Creekmore II at 103. She testified that she was first told of these conditions "[w]hen I was a little girl, when I was abused by my parents." Id. at 104. For many years she was institutionalized or under supervised care. She has often made accusations of physical and sexual abuse in a variety of settings.^[FN9] [*5]

While James was defendant's employee, he had no contact with plaintiff in the course of his work. Police records indicate that James admitted having had sexual relations with her twice at her apartment during February 2003. James claims that they were consensual sexual acts, while plaintiff alleges that she succumbed to threats and force.

Various documents are attached as Exhibit I to the motion, all dealing with defendant's employment of James, including his termination papers. According to his employment application, before defendant hired James in October 1997, he held three prior jobs as a driver for patients to medical or educational facilities. He provided names, addresses and telephone [*6]numbers for the two most recent employers, the earliest company allegedly having gone out of business. As part of the employment process, he signed an authorization for defendant to conduct an "investigation of all statements contained in this application for employment as may be necessary in arriving at an employment decision." He also signed a release to allow defendant to confirm his driving record with the Department of Motor Vehicles. None of the forms or documents asks about or makes reference to criminal activity, arrests or prosecutions.

As an assistant habilitation specialist, James' focus was on the care, supervision, training and monitoring of developmentally-disabled adults. He was responsible for, among other things, patients' grooming and hygiene, supervising their lunch periods, escorting them to appointments, loading them onto and unloading them from vehicles, and he was to "[s]erve as [a] positive role model."

On March 15, 1999, defendant interviewed James for promotion to a position as shift supervisor. He was rated as average in most categories, below average in his ability to respond appropriately to questions, and above average in eye contact and self-confidence. He was not promoted. On June 8, 1999, defendant interviewed him for a position as assistant manager. He was rated below average in his ability to ask relevant questions, above average in relevant work experience and average in all other areas. He did not receive that promotion. On or about September 11, 2002, defendant interviewed James for a position as Client Coordinator. The interviewer found him to be no better than average in any category rated and classified him as below average in areas such as professionalism and ability to respond appropriately to questions. Again, James received no promotion or change of position.

Defendant submits performance evaluations of James dated June 10, 1998, November 8, 1999 and November 10, 2000. Each time, he was typically graded at or above standard in every characteristic, with an overall rating of Meets Expectations. There is one disciplinary report dated April 22, 2003 at the time of James' termination. Otherwise, neither party produces any documents dealing with James' job performance or his conduct in any setting during or prior to his employment by defendant. Plaintiff contends that the poor showing James made on his interview for client coordinator demonstrated that "he probably should not have been hired to work at PSCH in the first place." Matarangas Aff., ¶ 43. Trying to disqualify hiring an employee retroactively when he later fails to meet the standards for promotion to another position is an unwarranted leap of logic.

Under the circumstances presented here, there is no basis for plaintiff's claim against defendant for negligent hiring and summary judgment dismissing that claim is warranted. Plaintiff provides no factual evidence that anything in James' background made him unsuitable for his position with defendant. Acosta-Rodriguez v City of New York, 77 AD3d 503, 504 (1st Dept 2010) ("Plaintiffs failed to raise a factual issue as to whether, at the time of the employee's hiring, [employer] was on notice of facts triggering a duty to inquire further, or to contradict [employer's] claim that it conducted its standard pre-employment investigation of the employee"); Guacci v Ogden Bros. Collision, Inc., 39 AD3d 308, 308 (1st Dept 2007) (summary judgment granted where "[p]laintiff identified no facts in the record possibly demonstrating that [defendant] had failed to make appropriate inquiries upon hiring [tort-feasor]"). That part of plaintiff's second cause of action for negligent hiring is dismissed in the absence of any triable issue of fact. [*7]

Plaintiff's third cause of action against defendant for violation of an implied warranty of safety is also dismissed. While plaintiff never defines this concept, it raises the same standard of care as common-law negligence and thus is duplicative of the complaint's first cause of action.

Turning to Creekmore's remaining claims, PSCH argues that the "entire basis for this lawsuit is the alleged unlawful sexual encounter between Mr. James and the plaintiff in her apartment. At no point in any of the police or District Attorney accounts described by the plaintiff is there mention of any encounter which occurred on the premises." O'Bryan Aff., ¶ 84. Defendant correctly notes that the first time plaintiff alleged that James assaulted her in a PSCH classroom was at her July 11, 2008 deposition. From this, defendant concludes that Creekmore's failure to report this alleged incident to authorities and its omission from the complaint's allegations indicate that plaintiff is merely attempting to create a feigned issue of fact.

However, the police and District Attorney accounts are not the entire record of purported events. In fact, though the allegations are sparse, prior to her July 2008 depositions plaintiff stated in her August 11, 2005 interrogatories that James' "abuse occurred at the PSCH Program as located at Queens Plaza as well as plaintiff's place of residence at Jamaica Avenue." Motion, Ex. K, at ¶7.

As to whether PSCH was on notice of James' improper conduct and/or propensity for violence, at her second deposition, plaintiff testified that the classroom rape took place on or about February 10, 2003, when other staff and patients were at lunch. Creekmore's account continues with her alleged report to Moreira, a PSCH program director, seemingly within a few hours or days of the incident. If true, the assault and plaintiff's report to a member of defendant's administration predate the undisputed sexual activity between plaintiff and James that took place in plaintiff's apartment in February 2003. Whether the alleged classroom rape and the followup report preceded the first sexual encounter in plaintiff's apartment cannot be readily determined. In any event, defendant offers no factual dispute of plaintiff's account of the classroom rape and her subsequent reports to Moreira.

With PSCH allegedly on notice of James' propensity for violence, summary judgment dismissing the causes of action for negligence and negligent supervision is unwarranted. "The claim of negligent hiring, retention, training, and supervision . . . [requires] evidence that [employer] was on notice that [employee] had a propensity for violence." Ostroy v Six Square LLC, 100 AD3d 493, 494 (1st Dept 2012); Rodriguez v United Transp. Co., 246 AD2d 178, 180 (1st Dept 1998) (liability is based on an "employer's negligence in selecting or retaining, for a position rife with the potential for harm to others, an employee with a history of or propensity for violence").

Accordingly, it is

ORDERED that defendant PSCH, Inc.'s motion for summary judgment in its favor dismissing the complaint is granted to the extent of dismissing the causes of action for negligent hiring and violation of an implied warranty of safety, and is otherwise denied; and it is further

ORDERED that the remainder of the action shall continue.

The foregoing constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties.

Dated: New York, New York

January 11, 2013 [*8]

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HON. MARTIN SHULMAN, J.S.C.