In this action for, inter alia, negligent supervision of a student within a public school - such negligent supervision resulting in an alleged sexual assault - defendants move seeking an order (1) granting them summary judgment as to plaintiffs' claims of negligent supervision, negligent hiring and retention and liability premised on the theory of respondeat superior; (2) dismissing plaintiffs' claims against defendant THE NEW YORK CITY POLICE DEPARTMENT (NYPD); and (3) dismissing any claim for incidents occurring prior to April 28, 2003. With regard to summary judgment, defendants aver that the same is warranted insofar as the evidence establishes, beyond factual dispute, that plaintiff SERINA LOPEZ (Serina) was properly and adequately supervised, that defendants had no prior notice that its employee had been involved in incidents of sexual misconduct, and that the misconduct alleged cannot give rise to vicarious liability as a matter of law. With respect to defendants' motion to dismiss, defendants aver that dismissal of the action against the NYPD is warranted insofar as, inter alia, the NYPD is not a suable entity. With respect to any claims occurring prior to April 28, 2003, defendants allege that dismissal is warranted because those claims were not asserted within plaintiffs' notice of claim. While plaintiffs do not oppose the portion of defendants' motion seeking (1) summary judgment with respect to plaintiffs' vicarious liability claim; and (2) dismissal of the action against the NYPD, [*2]they do oppose the remainder of defendants' motion. Specifically, plaintiffs assert that they were granted leave to interpose a belated notice of claim by this Court, which they did, and within which, they asserted tortious conduct on three additional dates. With regard to summary judgment, plaintiffs contend that material questions of fact exist, which preclude summary judgment. Particularly, plaintiffs assert that because defendants were aware of their employee's sexual proclivities and did nothing to remediate the same, they failed to properly supervise Serina - who defendants were aware had substantial interaction with their employee. Moreover, in light of these sexual proclivities, about which defendants were aware prior to Serina's alleged incidents, defendants' failure to terminate its employee amounts to negligent retention.

For the reasons that follow hereinafter, defendants' motion is hereby granted, in part.

The instant action is for alleged personal injuries allegedly sustained by plaintiffs' as a result of defendants' negligence. Specifically, the complaint alleges that defendants owned, maintained and operated the Richard R. Green Middle School (MS 113), located at 3710 Barnes Avenue, Bronx, NY and that Serina was a student therein. It is further alleged that on April 28, 2003, as well as three prior occasions, Serina was sexually assaulted while within PS 113 by Arthur Funchess (Funchess), defendants' employee. Plaintiffs allege that the multiple sexual assaults were the result of defendants' negligence insofar as they (1) hired Funchess despite knowledge that he had a criminal history; (2) retained him as an employee despite knowledge that he both committed criminal acts while employed by defendants and had the propensity to engage in sexual misconduct; (3) failed to properly supervise the school, and Funchess (and presumably Serina); and (4) failed to adequately investigate Funchess both prior to hiring him and while employed by the defendants. Plaintiffs allege that as a result of defendants' negligence, Serina sustained injury and that derivatively, so did plaintiff LYDIA SIERRA (Lydia), Serina's mother and natural guardian.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a [*3]defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005] Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once movant meets the initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).

Defendants' motion seeking summary judgment with respect to plaintiffs' negligent supervision claim is denied insofar as the very evidence submitted by defendants establishes that prior to all of the instances of sexual misconduct alleged by plaintiffs, defendants were on notice that Funchess' had engaged in sexual misconduct - at least one instance which involved sex with a student at MS 113 - and yet did nothing - particularly with respect to supervision - to prevent the sexual misconduct alleged by plaintiffs.

It is well settled that "[s]chools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49 [1994] Doe v Rohan, 17 AD3d 509, 511 [2d Dept 2005] Doe v Orange-Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 388 [2004]). The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians (Mirand at 49; Pratt v Robinson, 39 NY2d 554, 560 [1976] ["The duty owed by a school to its students, however, stems from the fact of its physical custody over them. As the Restatement puts it, by taking custody of the child, the school has deprived the child of the protection of his parents or guardian. Therefore, the actor who takes custody of a child is properly required to give him the protection which the custody or the manner in which it is taken has deprived him. The school's duty is thus coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases." (internal citation and quotation marks omitted)])

However, schools are not insurers of safety and cannot reasonably be expected to continuously supervise and control all movements and activities of the students in their charge (Mirand at [*4]49; Doe, 4 AD3d at 388). Thus, the standard of care a school owes to its students - as it relates to supervision - is the supervision and protection which "a parent of ordinary prudence would observe in comparable circumstances" (Doe, 17 AD3d at 511; Doe, 4 AD3d at 388; David v County of Suffolk, 1 NY3d 525, 526 [2003] Mirand at 49). Hence, schools are under a duty to adequately supervise their students and are liable for foreseeable injuries which are proximately caused by the absence of such supervision (Garcia v City of New York, 222 AD2d 192, 194 [1st Dept 1996]). Stated differently, the duty to provide adequate supervision has been breached when "school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated" (Mirand at 49; Brandy B. v. Eden Cent. School Dist., 15 NY3d 297, 302 [2010] Conklin v Saugerties Cent. School Dist., 106 AD3d 1424, 1425 [3d Dept 2013]). Accordingly, the sine qua non to liability in any case alleging inadequate supervision is actual or constructive notice to the school of prior similar conduct (Mirand at 49). This of course, makes perfect sense insofar is it is beyond cavil that school personnel cannot reasonably be expected to guard against conduct, the likes of which, they were unaware and, therefore, likely to recur (id.). Once on notice of prior dangerous conduct, a school is liable if it fails to provide the requisite degree of supervision to reasonably prevent harm (Garcia at 196 ["In view of the foregoing, and by the use of plain common sense, we conclude that the school, acting in loco parentis, did not act with ordinary prudence in allowing the five-year-old plaintiff to proceed to the bathroom alone."]). Whether the steps taken by a school to protect a student from foreseeable harm are adequate is generally a question of fact for a jury (Mirand at 51; Conklin at 1426).

In cases alleging inadequate supervision resulting in the intentional sexual abuse of a student in school's charge, liability requires a showing that defendant had "prior knowledge or notice of the [perpetrator's] propensity or likelihood to engage in such [sexually inappropriate] conduct, so that the individual's acts could be anticipated or were foreseeable" (Lisa P. v Attica Cent. School Dist., 27 AD3d 1080, 1081 [4th Dept 2006] Ghaffari v North Rockland Cent. School Dist., 23 AD3d 342, 343 [2d Dept 2005] Dia CC v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003] ["Where liability is imposed on a school for negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must demonstrate the school's prior knowledge or notice of the individual's propensity or likelihood to engage in such conduct, so that the individual's acts could be anticipated or were foreseeable."] Druba v East Greenbush Cent. School Dist., 289 [*5]AD2d 767, 768 [3d Dept 2001]).

As noted above, when it is alleged that inadequate supervision by school officials resulted in the intentional sexual abuse of a student in the school's charge, the school will be liable if it had prior knowledge of the perpetrator's propensity or likelihood to engage in sexually inappropriate conduct, so that the perpetrator's acts could be anticipated or were foreseeable (Lisa P. at 1081; Ghaffari at 343; Dia CC at 956; Druba at 768). Once on notice of prior dangerous conduct, a school is liable if it fails to provide the requisite degree of supervision to reasonably prevent harm (Garcia at 196).

Here, a review of Serina's testimony at her hearing pursuant to GML §50-h and her depositions establishes that beginning shortly before December 2002 and through April 28, 2003, Serina was asked to perform oral sex on Funchess on four separate occasions. During this time Serina was in the sixth grade at MS 113 and Funchess was employed therein as a janitor. Serina testified that prior to any of the alleged sexual encounters with Funchess, she told Peter Moore (Moore), her guidance counselor, that she had a crush on Funchess, that she thought Funchess was cute, and that Funchess had already engaged in sexual relations with a student on school grounds. Specifically, Serina testified that she saw Mr. Moore shortly after September 2002 and told him that Funchess "was really cute and that [she] had a crush on him." She also testified that she told Moore that "[Funchess] had sex with a girl in the basement." According to Serina, Moore advised Serina "to stay away from [Funchess]," because "he seems like a dangerous man." Serina further testified that even after she conveyed the foregoing to Moore, she continued to cut class in order to see Funchess and that when she was caught cutting class, the school safety agents and/or other officials would merely ask her to return to class; such action never impeding her meetings with Funchess. Additionally, as per her deposition transcript, Lydia, Serina's mother also expressed her concern regarding Serina's crush on Funchess to Moore. Lydia also testified that she met Moore at a parent/teacher conference in 2002, where she told him that she had heard that Funchess had sex with another student and that he had been suspended as a result. According to Lydia, Moore stated that "he wasn't at liberty to speak on it . . . [but that] he had heard something."

Contrary to defendants' assertion, the foregoing testimony put defendants on notice that prior to any of Serina's alleged sexual encounters with Funchess, he had a propensity to engage in sexual misconduct. Morever, because Serina and Lydia testified that Moore was made aware that Serina had a crush on Funchess, plaintiffs' [*6]evidence establishes that it was foreseeable that Funchess and Serina would interact and that, therefore, it was also foreseeable that Funchess could sexually assault Serina. Based on aforementioned evidence, defendants were, thus, required to provide the supervision and protection which "a parent of ordinary prudence would observe in comparable circumstances" (Doe, 17 AD3d at 511; Doe, 4 AD3d at 388; David at 526 [2003] Mirand at 49). In other words, defendants were required to provide the requisite degree of supervision to reasonably prevent harm. However, as the evidence demonstrates, defendants failed to increase their level of supervision in order to prevent Serina's meetings with Funchess. In fact, plaintiff's evidence establishes that Serina continued to cut classes and continued to meet with Funchess on four separate occasions.

Accordingly, with regard to the supervision claim, defendants' own evidence establishes questions of liability and, therefore, precludes summary judgment in their favor. It's hardly debatable that plaintiffs' evidence paints a picture where defendants failed to act as a reasonable parent under the attendant circumstances since a jury could find that a parent confronted with allegations that a grown man had engaged in sex with a minor would have provided much more supervision to ensure that this individual would not repeat such egregious behavior. This is especially true here, since Serina expressed a crush on Funchess, such that a jury could find that a reasonably prudent parent would have foreseen that Serina and Funchess would likely interact and that, thus, Serina would be placed in a situation where Funchess would sexually assault her. Thus, the Court need not address the adequacy and/or sufficiency of plaintiffs' opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ["The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (internal citation and quotation marks omitted)]). Here, it is true that at his at his deposition, Moore testified that while was aware that Serina had a crush on Funchess, he was unaware that Funchess had engaged in any sexual misconduct with any students prior to Serina's allegations. This implicit denial of Serina and Lydia's allegation that Moore knew that Funchess had previously engaged a student in sex while on school grounds, however, is merely a question of fact - specifically, credibility - to be resolved at trial. Contrary to defendants' assertion, when deciding a motion summary judgment the role of the court is to make determinations as to the existence of bonafide issues of fact and not delve into or resolve issues of credibility (Knepka v Talman, 278 AD2d 811, 811 [*7][4th Dept 2000] ["Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial" (Internal citations omitted)] Glick & Dullock v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968] Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999] Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Hence, whether Moore was, in fact made aware of Funchess sexual proclivities and propensity prior to Serina's alleged sexual assaults and whether defendants' failed to properly supervise Serina as a result thereof is to be decided by a jury.

Defendants' motion seeking summary judgment with respect to plaintiffs' claim that defendants' negligently hired and then retained Funchess is granted in part. Not to be confused with vicarious liability, an employer is liable under a claim that he negligently hired and/or retained and employee if the employer places the employee

in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee

(Sheila C. v Povich, 11 AD3d 120, 129 [1st Dept 2004] Detone v Bullit Courier Service, Inc., 140 AD2d 278, 279 [1st Dept 1988]). Thus, a cause of action for negligent hiring and retention requires proof that the employer knew, or should have known, of the employee's propensity for the sort of conduct which caused the injury alleged (Sheila C. at 129; Gomez v City of New York, 304 AD2d 374, 374-375 [1st Dept 2003] Bellere v Gerics, 304 AD2d 687, 688 [2d Dept 2003]). With respect to negligent hiring, there is no common-law duty to institute specific hiring procedures unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 163 [2d Dept 1997] [Plaintiff's claim that defendant negligently hired employee who sexually assaulted him was dismissed when defendant established that the employee came with a letter of reference, it had no knowledge that the employee had sexual propensities, and had no reason to investigate further.] Ghaffari at 343-344). Thus, a defendant will be liable for negligently hiring an employee and/or retaining him without any corrective action if the employer knows or should have known that the employee has or had a propensity - namely prior acts and/or behavior - for the sort of conduct which caused the injury alleged (Ernest L. v Charlton School, 30 AD3d 649, 650-651 [3d Dept 2006] [Plaintiff's claim that defendant - a [*8]foster care agency - negligently retained an employee who sexually assaulted the plaintiff - a resident - dismissed when defendant established that it had no notice of its employee's sexual propensities prior to plaintiff's alleged assault.] cf. Ghaffari at 344 [Court granted summary judgment in favor of defendant school dismissing plaintiff's claim for negligent hiring when Plaintiff - a student - who claimed that she was sexually assaulted by a teacher had could not controvert defendant's prima facie showing that it "had no knowledge of the teacher's propensity for sexual misconduct."]). A defendant is liable for negligently retaining an employee without any corrective action when the employer knows or should have known that the employee has a propensity - namely prior acts and/or behavior - for the sort of conduct which caused the injury alleged (Ernest L. at 650-651).

Here, where the evidence establishes that both Serina and Lydia told Moore - defendants' employee - that Funchess - also defendants' employee - had engaged in a sexual relationship with a another student and that Funchess nonetheless remained employed, rather than establish a defense, defendants' evidence establishes a prima facie case of negligent retention.

Defendants' motion seeking summary judgment on the negligent hiring claim, however, is granted since the evidence establishes that defendants had no notice of Funchess' sexual propensity prior to hiring him. Unless an employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee, there is no common-law duty to institute specific hiring procedures (Kenneth R. at 163). Here, Zdzislaw Formus (Formus), Custodial Engineer at MS 113, testified that when Funchess was hired in 2000, he underwent a background check and was, thereafter, hired by defendants as cleaner. Accordingly, implicit in Formus' testimony is that Funchess had no criminal record, the nature of which impeded his employment with defendants. Therefore, defendants establish prima facie entitlement to summary judgment on the negligent hiring claim. Plaintiffs' evidence fails to raise any triable issues of fact on this claim which would warrant denial of this portion of defendants' motion. While plaintiffs' point to a memorandum dated May 6, 2002, evincing that in 1996, prior to being hired by defendants, Funchess pled guilty to fare jumping, this evidence fails to raise an issue of fact with respect to the negligent hiring claim. A defendant will be liable for negligently hiring an employee if the employer knows or should have known that the employee has a propensity - namely prior acts and/or behavior - for the sort of conduct which caused the injury alleged (Ernest L. 650-651). Here, even if defendants were aware that Funchess had been convicted of fare jumping prior to hiring him, which presumably they did, such crime is not tantamount to a propensity [*9]to commit sexual assault, the tort alleged by plaintiffs.

Defendants application seeking summary judgment as to plaintiffs' claim for negligence on a theory of respondeat superior is granted since intentional sexual assault is outside the scope of an employee's employment as a matter of law. It is well settled that under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees if those acts were committed in furtherance of the employer's business and within the scope of employment (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002] Dia CC. v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003]]. However, an act of sexual assault by an employee is "a clear departure from the scope of employment, committed solely for personal reasons, and unrelated to the furtherance of the employer's business" (N.X. at 251; McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d 686, 687 [2002], lv denied 99 NY2d 503 [2002] Mary KK. v Jack LL., 203 AD2d 840, 841 [1994]). In this case, the allegations, as borne out by the evidence submitted by defendants, are that Funchess intentionally sexually assaulted Serina while employed by the defendants. Even if true, defendants cannot be vicariously liable for Funchess' acts under the doctrine of respondeat superior. Accordingly, defendants establish prima facie entitlement to summary judgment as to this claim and plaintiffs fail to submit any evidence which raises an issue of fact so as to warrant denial of this portion of defendants' motion. Indeed, plaintiffs don't even oppose this portion of defendants' motion.

Defendants' motion seeking to dismiss this action against the NYPD is granted because as a matter of law, the NYPD is not separate legal entity amenable to suit. Thus, the compliant fails to state a cause of action against the NYPD. A motion to dismiss a complaint pursuant to CPLR 3211(a)(7) all allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001] Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint (Cron at 366) If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.) The court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414 [2001]). In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated [*10]one."]).

Section 396 of the New York City Charter reads

[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.

Accordingly, it is well settled that "[t]he NYPD is an agency of the City of New York and is therefore a non-suable entity" (Davis v City of New York, 2000 WL 1877045, n 1 [SDNY 2000] Jenkins v City of New York, 478 F3d 76, n 19 [2d Cir 2006]). Here, deeming all allegations against the NYPD as true, the complaint nevertheless fails to state a cause of action because as a non-suable entity, the NYPD cannot be sued.

Defendants' motion seeking to preclude a cause of action for sexual assaults occurring prior to April 28, 2003 on grounds that those dates of occurrence were not alleged in plaintiffs' notice of claim is denied insofar as plaintiffs were granted leave to and did serve a belated notice of claim alleging additional sexual assaults. A review of the record evinces that on December 18, 2003, this Court granted plaintiffs' application for leave to serve a late notice of claim wherein they allege that Serina was sexually assaulted in December 2002, February 2003, and March 2003. Indeed, defendants in their reply papers - apparently recognizing the absence of merit - fail to address plaintiffs' evince in opposition to this portion of defendants' motion. It is hereby

ORDERED that plaintiffs' cause of action for liability under the doctrine of respondeat superior be hereby dismissed. It is further

ORDERED that the complaint against the NYPD be hereby dismissed. It is further

ORDERED that the THE NEW YORK CITY DEPARTMENT OF EDUCATION serve a copy of this Decision and Order with Notice of Entry upon plaintiffs within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : March 24, 2014

Bronx, New York

_________________________

Mitchell J. Danziger, ASCJ