Guercio & Guercio, LLP, Farmingdale, NY (Anthony J. Fasano and Stephanie Denzel of counsel), for appellant.

Herman Law, New York, NY (Stuart S. Mermelstein, Jesse Seiden, and Vanessa A. Neal of counsel), for respondent.

In an action, inter alia, to recover damages for negligence, the defendant appeals from an order of the Supreme Court, Nassau County (Part CVA-R) (Leonard Steinman, J.), dated June 13, 2024. The order denied the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214-g), inter alia, to recover damages for negligence. According to the plaintiff, he was sexually abused by a particular teacher of his 5 to 10 times during the fifth and sixth grades while attending an elementary school operated by the defendant. The defendant moved for summary judgment dismissing the complaint, arguing, among other things, that it did not have actual or constructive notice of the plaintiff's teacher's alleged propensity to engage in sexual abuse or of the abuse. The Supreme Court denied the defendant's motion. The defendant appeals.

"Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may still be held liable under theories of negligent . . . retention . . . and supervision of the employee" (Johansmeyer v New York City Dept. of Educ., 165 AD3d 634, 635 [2018] [citations and internal quotation marks omitted]; see Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [1997]). "To establish a cause of action based on . . . negligent retention . . . or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and that there exists a connection between the defendant's negligence . . . and the plaintiff's injuries" (Sayegh v City of Yonkers, 228 AD3d 690, 691 [2024] [citations and internal quotation marks omitted]). "The employer's negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the . . . retention . . . or supervision of the employee" (MCVAWCD-DOE v Columbus Ave. Elementary Sch., 225 AD3d 845, 846-847 [2024] [alteration and internal quotation marks omitted]).

[*2] Moreover, "[a] school owes a duty to adequately supervise the students in its care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Fain v Berry, 228 AD3d 626, 627 [2024] [internal quotation marks omitted]). "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" (Sayegh v City of Yonkers, 228 AD3d at 691 [internal quotation marks omitted]). "The standard for determining whether a school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information" (J.B. v Monroe-Woodbury Cent. Sch. Dist., 224 AD3d 722, 723 [2024]). "Where the complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must allege that the school knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable" (Sayegh v City of Yonkers, 228 AD3d at 691 [alteration and internal quotation marks omitted]). As a result, "[a]ctual or constructive notice to the school of prior similar conduct generally is required" (Burdo v Cold Spring Harbor Cent. Sch. Dist., 219 AD3d 1481, 1482 [2023] [internal quotation marks omitted]). "Nonetheless, the adequacy of a school's supervision of its students is generally a question left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff's injury" (MCVAWCD-DOE v Columbus Ave. Elementary Sch., 225 AD3d at 847 [alteration and internal quotation marks omitted]).

Here, the Supreme Court properly determined that the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint. In support of its motion, the defendant submitted, among other things, transcripts of the deposition testimony of the plaintiff and one of the plaintiff's classmates. The plaintiff testified that over the course of two years, while he was in the fifth and sixth grades, he was sexually abused 5 to 10 times by his teacher while they were alone in a bathroom located in the plaintiff's special education classroom. The plaintiff's classmate testified that the plaintiff's teacher accompanied the plaintiff into the bathroom almost daily. Other evidence, when viewed in the light most favorable to the plaintiff, failed to demonstrate that either the teacher or the plaintiff received adequate supervision, particularly in light of the fact that the classroom was devoted to special needs students and was physically separated from the main school building. Moreover, the defendant was unable to locate the teacher's employment records.

In sum, the defendant failed to establish, prima facie, that it lacked constructive notice of the teacher's alleged abusive propensities and conduct and that its supervision of the teacher and the plaintiff was not negligent (see Kastel v Patchogue-Medford Union Free Sch. Dist., 234 AD3d 741 [2025]; Sayegh v City of Yonkers, 228 AD3d at 692; MCVAWCD-DOE v Columbus Ave. Elementary Sch., 225 AD3d at 847). Since the defendant failed to meet its prima facie burden, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Iannacci, J.P., Ford, Taylor and McCormack, JJ., concur.