In this action for, inter alia, negligent supervision of a student within a public school - such negligent supervision resulting in an alleged sexual assault - defendant NEW YORK CITY DEPARTMENT OF EDUCATION (DOE) moves seeking an order granting it summary judgment as to plaintiffs' claims of negligent supervision and negligent hiring and retention. DOE avers that summary judgment is warranted on several grounds, including that insofar as the alleged tortious conduct did not occur on DOE grounds, it cannot be liable for such conduct. Plaintiffs oppose the instant motion asserting that in failing to establish that it properly supervised its employee - defendant BILL AGOSTO (Agosto), who purportedly sexually assaulted plaintiff JANE "DOE" a/k/a Kevina Kelly (Kelly) - DOE fails to establish prima facie entitlement to summary judgment. Plaintiffs also contend that insofar as the DOE was aware that Agosto was violating its rules, questions of fact preclude summary judgment.

For the reasons that follow hereinafter, DOE' motion is hereby granted.

The instant action is for alleged personal injuries allegedly sustained by plaintiffs as a result of DOE's negligence and Agosto's intentional conduct. Specifically, the complaint alleges that defendants owned, maintained and operated Discovery High School (Discovery), located at 2780 Reservoir Avenue, Bronx, NY and that Kelly was a student therein. It is further alleged that beginning in the Fall of 2008 and continuing for some time thereafter, Kelly was repeatedly sexually assaulted by Agosto, a DOE employee. Plaintiffs allege that the sexual assaults were the [*2]result of DOE's negligence insofar as it (1) failed to properly supervise Agosto; (2) hired him despite knowledge that he was dangerous, predatory, and unfit; (3) failed to terminate Agosto despite knowledge that he was unfit; and (4) failed to adequately protect Kelly from Agosto. Plaintiffs allege that as a result of DOE's negligence, Kelly sustained injury and that derivatively, so did plaintiff JULIETTE "DOE" a/k/a Julitte Lewis (Lewis), Kelly's mother.

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 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).

DOE's motion seeking summary judgment on grounds that the sexual assault alleged did not occur on DOE property is hereby granted insofar as the uncontroverted evidence establishes that each and every instance of sexual assault by Agosto upon Kelly occurred at a motel, during the summer of 2009, after the school year had ended and Kelly was on vacation.

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 [*3]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 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 [*4]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 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).

It is well settled that insofar as a school's duty to supervise its students is premised on its physical duty over them,

[w]hen 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

(Pratt v Robinson, 39 NY2d 554, 560 [1976] Ramo v Serrano, 301 AD2d 640, 641 [2d Dept 2003] Marcano v City of New York, 305 AD2d 223, 223 [1st Dept 2003] Bertrand v. Board of Educ. of City of New York, 272 AD2d 355, 355 [2d Dept 2000]). Accordingly, generally, when an accident or incident occurs off school grounds, a school is not liable (Bertrand at 355 ["As a result, where a student is injured off school premises generally the school cannot be held liable for the breach of a duty that extends only to the boundaries of school property."] Tarnaras v Farmingdale School Dist., 264 AD2d 391, 392 [2d Dept 1999] [same]). In Pratt, an action for damages premised on a school's negligent placement of its school bus stop, the court granted summary judgment in defendant's favor (Pratt at 560-561). Specifically, the infant plaintiff was struck by a truck on her way home, several blocks after she alighted from a school bus (id. at 557). In granting summary judgment in favor of the school, the court noted that a school's duty to properly supervise the students in its charge hinges on physical control and [*5]that in the case before it,

when the school district undertook to offer the busing it did, it extended its control over its pupils from the school door to the bus stop only. At that point, the children having been set down in a safe spot, and nothing untoward having occurred in the course of their disembarkation, its transportation program no longer substituted for parental control and, thus, it bore no further duty to the child on the basis of its special role as custodian. Where a child is discharged from the bus at a concededly safe and scheduled stop, and is then injured several blocks away from the stop, no interference with parental control could be found, any more *561 than it could be found if no busing were provided at all and the child had been hurt while walking home from a neighborhood school itself located at Columbia Avenue and Seward Street

(id. at 560).

Here, DOE's evidence, namely Kelly's deposition testimony establishes that each and every time Agosto sexually assaulted her by having sexual intercourse, they were at a motel off school property. More importantly, there had been no sexual assaults prior to the end of the school year and until the start of Kelly's summer vacation, at which time she was neither in school nor on the track team. Specifically, Kelly testified that in the fall of 2008 she was a freshman at Discovery, at which time she joined the school's track team. Upon joining the track team, she met Agosto, who was one of the coaches. Kelly testified that in the spring/summer of 2009, she and Agosto developed feelings for each other. In June 2009, Kelly and Agosto "hung out" after school and went to a Chinese Buffet. In the Summer of 2009, Agosto procured a job for Kelly at a day camp, and they began to "hang out" consistently. In July 2009, Agosto and Kelly began to have sexual intercourse. These episodes would always occur at a motel and never on school grounds. In fact, Kelly testified that she and Agosto never even held hands while on school grounds. Kelly testified that other than Marie, her cousin, she told no one about her relationship with Agosto until early September of 2009, when she told her mother that she was pregnant.

While the foregoing testimony establishes DOE's prima facie entitlement to summary judgment, it does so, not merely because all the sexual assaults occurred off school grounds as averred by the DOE, but because in addition, they occurred at a time when Kelly she was not in DOE's charge as either a student or a member of the track team. This distinction, while nuanced, is nevertheless dispositive. As noted above, while generally when an accident or incident occurs off school grounds the school is not liable [*6](Bertrand at 355 Tarnaras 392). The relevant inquiry, however, is not solely the absence of physical custody over a student, but rather whether the school's physical custody has actually ceased "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" (Pratt at 560). Here, where Agosto, as both a teacher and track coach, was a DOE employee who remained responsible for the supervision of the members of the track team even after they left school grounds for practice and competitions, it cannot be said that Kelly's parents were free to resume control over her merely because she was no longer on school grounds. The same is true for any post-practice of competition activities in which Agosto engaged in his capacity as the track coach, such as driving Kelly and other members of her team home. Certainly, under such circumstances Agosto's duty, and thus the DOE's duty to provide adequate supervision did not cease merely because the students were no longer on school grounds. Nevertheless, here, DOE establishes the absence of liability because all the tortious conduct born out by the evidence occurred during Kelly's summer vacation, at which time the DOE owed no duty of care to her, let alone any obligation to adequately supervise her.

Plaintiffs offer no arguments in opposition to this prong of DOE's motion and none of the evidence submitted in opposition raises an issue of fact sufficient to preclude summary judgment in DOE's favor with respect to this issue. While plaintiffs submit an affidavit from Kelly, wherein she states that she and Agosto first had sex in June, prior to the end of the school year, this is at odds with her deposition testimony where she testified to the contrary. Thus, her affidavit is self-serving as a matter of law and cannot raise an issue of fact sufficient to preclude summary judgment (Lupinsky v Windham Construction Corp., 293 AD2d 317, 318 [1st Dept 2002] Joe v Orbit Industries, Ltd., 269 AD2d 121, 122 [1st Dept 2000] Kistoo v City of New York, 195 AD2d 403, 404 [1st Dept 1993]).

Given the foregoing, the Court need go no further. However, insofar as plaintiffs' papers evince a fundamental misunderstanding of the relevant law on their claim for negligent supervision, the Court also concludes that DOE establishes prima facie entitlement to summary judgment by demonstrating that it provided adequate supervision to Kelly under the circumstances and more specifically, given the absence of any notice that Agosto had a propensity to engage in sexual misconduct. Moreover, DOE's evidence establishes that in the absence of any notice that Agosto had engaged in sexual misconduct prior to and during the instant incident or that he had any criminal convictions stemming from such conduct, it neither negligently hired nor retained him. [*7]

As discussed above, in cases such as this one, when there are allegations of 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. at 1081; Ghaffari at 343; Dia CC at 956; Druba at 768). Here, a review of the evidence submitted by DOE establishes that prior to cessation of the sexual assaults upon Kelly by Agosto, the DOE had no notice that he was engaging or had engaged in such conduct in the past. As noted above, Kelly testified that she had told no one at school about her sexual realtionship with Agosto and that they never engaged in any sexual behavior on school grounds. Similarly, Lewis, Kelly's mother, testified at her deposition that prior to Kelly informing her that she was pregnant in early September 2009, she had no idea that Agosto was sexually assaulting Kelly. As such, beyond a complaint related to Kelly coming home late after track practice, Lewis made no complaints regarding any sexual misconduct by Agosto to DOE or any one at Discovery. Serapha Cruz (Cruz), principal at MS 331, the school where Agosto taught, testified at her deposition that she personally recommended that Agosto be hired as a teacher, that Agosto underwent a background check prior to his employ with the DOE, that said check didn't reveal a criminal history, and that she had not received any complaints about Agosto prior to the incident alleged by plaintiffs. Angelique Pierre (Pierre), a guidance counselor and track coach at the five-school campus which housed Discovery in 2008 and 2009, testified at her deposition that prior to learning about the sexual relationship between Kelly and Agosto in September 2009, she was unaware that the same was occurring, that she never observed Agosto engage in the inappropriate touching of a student, nor had she received any complaints about Agosto. Accordingly, in the absence of any evidence that Agosto had a propensity to engage in sexual abuse, DOE had no reason to foresee the abuse to Kelly and therefore, did not have to provide her any more supervision than it. For this additional reason, DOE establishes prima facie entitlement to summary judgment (Lisa P. at 1081 ["We conclude that defendant met its initial burden on the motion with respect to negligent supervision by establishing that it had no notice of Burnside's propensity for sexual abuse, and plaintiffs failed to raise an issue of fact to defeat that part of the motion. Defendant submitted evidence establishing that Burnside had received only positive evaluations and that there were no incidents or complaints of any behavior indicating a propensity toward sexual abuse." (Internal citations omitted)] Dia CC. at 956 ["Here, plaintiff presented no evidence that the District had any knowledge or notice that the ESL teacher may molest a student. The District [*8]obtained information from the Pennsylvania Department of Education, checked references from prior employers, and this individual had been employed by the District for over 15 years without incident. The classroom teacher acted reasonably in releasing Adam to another teacher. Allowing a teacher to work alone one-on-one with a student did not breach the District's duty to supervise students. Thus, Supreme Court properly granted defendants' motion for summary judgment." (Internal citations omitted)]).

Nothing submitted by plaintiffs raises an issue of fact sufficient to preclude summary judgment. Notably, plaintiffs' salient argument is that the law governing a negligent supervision claim imposes a duty on a school to adequately supervise its employees so as to prevent harm to the students in its charge. Plaintiffs then claim that, here, there was a complete absence of supervision over Agosto and that this, in it of itself - irrespective of the complete absence of any notice that Agosto had engaged or was engaging in sexual misconduct - is enough to cloak DOE in liability. This contention has no merit. Contrary to plaintiffs' contention a negligent supervision claim requires proof not that a school failed to supervise its employees, but rather that a school failed to properly supervise a student by failing to employ the level of supervision over said student that "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). Thus, while a defendant whose on notice of an employee's propensity to assault children should exercise supervision over the student to keep him/her away from such employee, and in so doing may be required to exercise supervisory authority over its employee, this cause of action is about the level of supervision exercised over the student not the employee.

Plaintiffs' reliance on Garcia (222 AD2d 192) is unavailing. In Garcia, the court refused to set aside a jury verdict in plaintiff's favor on the grounds advanced by defendant, a school, namely that the assault on plaintiff, a student, was not foreseeable inasmuch as there was no notice of prior similar incidents (id. at 195). Notably, that the school, as evinced by memoranda circulated amongst the staff, was aware that plaintiff a five-year old, could be hurt by a third-party if allowed to use the bathroom unattended (id.). Thus, contrary to plaintiffs' assertion, it is clear that notice played a role in the court's decision. In fact the court in Garcia noted as much when it said

in view of the school's written security guidelines concerning young children, coupled with the principal's testimony clearly indicating an awareness of the risks to unescorted students in school corridors and bathrooms, we find that the jury could [*9]reasonably have come to the conclusion that the danger of the assault which occurred was foreseeable and preventable by proper supervision

(Garcia at 197 [emphasis added]). More importantly, however, it is hard to fathom how the inapposite facts in Garcia are remotely applicable here. Paradoxically, plaintiffs invite the Court to conclude that a rape - resulting from allowing a five-year old to use a school bathroom unattended, which rape was an assault the likes of which was foreseen by the school in its own memoranda - is akin to a sexual assault upon a teenage student by an employee with no history of sexual assault. To conclude, as advanced by plaintiffs, that because the school knew that Agosto was transporting members of the track team to and from competitions in his personal vehicle - concededly a clear violation of the DOE's rules and regulations - is tantamount to notice that the sexual assaults alleged could result is quantum leap this Court is unwilling to make.

While the level of supervision a school exercises over its employees is not relevant to a claim for negligent supervision, a claim for negligent hiring and retention is. However, by establishing that on this record, Agosto had not been convicted of any crimes stemming from sexual assaults prior to being hired as a teacher nor that it had notice that he perpetrated any such assaults prior to September of 2009, at which time those assaults ceased, DOE establishes prima facie entitlement to summary judgment on plaintiffs' negligent hiring an retention claim.

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 [*10]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 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 Agosto underwent a background investigation which yielded no crimes at all, let alone any involving sexual assaults, DOE establishes prima facie entitlement to summary judgment on the claim for negligent hiring. Simarly, insofar as Lewis, Cruz, and Pierre all testified that prior to September 2009 they had no knowledge that Agosto was engaged in any sexual assaults, DOE establishes prima facie entitlement on the negligent retention claim. Nothing submitted by plaintiffs in opposition to DOE's motion raises an issue of fact sufficient to preclude summary judgment on this issue. It is hereby

ORDERED that plaintiffs' complaint be dismissed with prejudice. It is further

.ORDERED that DOE 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.

[*11]Dated : May 7, 2014

Bronx, New York

_________________________

Mitchell J. Danziger, ASCJ