The following documents were read on the plaintiff's motion for summary judgment pursuant to CPLR § 3212 and the defendant's opposition to the motion and cross-motion in limine: NYSCEF Document Numbers 24 through 29, and 31 through 38.

In support of their motion for summary judgment plaintiff, L.A., ("Plaintiff" or "L.A.") submitted the personnel file of Al Sweet ("Sweet"), the teacher who allegedly sexually abused L.A., the deposition transcript of Kaine Kelly ("Kelly"), the current Superintendent of the school district defendant, Randolph Central School, ("Defendant" or "the District"), and the deposition of L.A.. The District cross-moves to preclude the use of portions of Sweet's personnel file on the grounds that it is unauthenticated and "rife" with hearsay.

Taking the cross-motion first, Sweet's personnel files were produced by the District during discovery. In Defendant's response to Plaintiff's interrogatories, verified by Kaine, Defendant stated it possessed and produced Sweet's files (NYSCEF Doc No 36 p 4). During his deposition Kaine confirmed that the District possessed the file which was maintained and stored by the district and that he had reviewed it prior to testifying (NYSCEF Doc No 28 pp 24-26, 71-72, 73-75). Kaine's testimony alone is enough to authenticate the documents. In addition, "[u]nder the "ancient document" rule, a record or document which is found to be more than thirty years of age and which is proven to have come from proper custody and is itself free from any indication of fraud or invalidity proves itself" (Tillman v Lincoln Warehouse Corp., 72 AD2d 40, 45 [1st Dept 1979]).

Defendant also argues that the information in the documents is "rife" with hearsay. Specifically, the statements made in the report authored by school officials Principal Gail Chapman and Helen Thrasher dated April 15th and 16th, 1969 recounting accusations a parent and some students made against Sweet and inappropriate interactions with girls in his classroom. Plaintiff argues that these statements fall under several exceptions to the hearsay rule.

First, any statements by school officials fall under CPLR § 4549 which provides "[a] statement offered against an opposing party shall not be excluded from evidence as hearsay if [*2]made by a person whom the opposing party authorized to make a statement on the subject or by the opposing party's agent or employee on a matter within the scope of that relationship and during the existence of that relationship." Second, these statements are not being offered to prove the truth of the matter asserted, that Sweet did the things he was accused of in 1969, but for purposes of notice, that the District was aware of the threat that Sweet posed and improperly retained him.

Finally, in addition to the preceding paragraph and the records being an Ancient Document and falling under that exception to hearsay, they can also fall under the Business Records exception under CPLR § 4518. The District's personnel records were presumably made in the regular course of business and it was the regular course of business to make such a record. For the purposes of a motion for summary judgement the Court can consider these personnel files, and all of the information contained therein. That includes Sweet's denials in both the 1969 incident and the instant case. Admissibility at trial, however, will be subject to a proper foundation and any other relevant objections.

Moving on to Plaintiff's motion for summary judgment. Plaintiff argues that no issues of fact exist as the evidence proves that the District had actual and constructive notice of Sweet's propensity to sexually abuse children, including L.A., and the District was negligent by failing to act on such notice. Plaintiff relies on the portion of Sweet's personnel records that show the school Principal at the time, Gail N. Chapman, received and investigated a complaint by a parent in 1969 that Sweet was sexually abusing students in his 5th Grade class in a similar manner as alleged by L.A. in 1978 (NYSCEF Doc No 27). Plaintiff also argues that her testimony that Sweet sexually abused her is undisputed (NYSCEF Doc No 29 pp 27, 53, 87).

Sweet's personnel records contain information regarding incidents that occurred sometime around the spring of 1969. There were allegations that Sweet had been kissing girls in his classroom, put his hands up their dresses, had girls put their hands in his pocket where there was a hole for his penis, put his fingers through the buttonholes of girls' blouses, and partially unzipped their dresses. According to the records Sweet admitted to playing with girls' dress zippers and blouses, has taken hold of their bare knees, has allowed children to put their hands in his pockets to get change, and has kissed girls. He claimed he did not mean anything by these actions. The report states that the complainants contacted Principal Chapman to say that as long as the issue was addressed with Sweet and did not occur again there were no reasons for any changes in regards to placement of their children in Sweet's class. The report states that Principal Chapman briefed the Board of Education on the incident on April 16, 1969. The general consensus was that if no further evidence of indiscreet action occurred the matter would be dropped. Sweet read the summary report and signed a document regarding some of his actions, denying that he directed his penis at any girl or that any of the girls touched his penis (NYSCEF Doc No 27).

Sweet's personnel record also contains notes from Principal Chapman dated September 21, 1978, referencing a call from Yvonne Cook, Plaintiff's mother. The notes state that Plaintiff had come home from school and relayed an incident that occurred where Sweet had grasped her hand and asked her to rub his "private parts" and to squeeze. On September 22, 1978, Principal Chapman's notes indicate that there was a meeting at school with Mrs. Cook, the Plaintiff and the Principal where the incident was discussed in more detail. Sweet was also brought into the meeting with the Plaintiff present and was confronted with the allegations which he denied.

"Schools are under a duty to adequately supervise the students in their charge and they [*3]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]; see Brandy B. v. Eden Cent. School Dist., 15 NY3d 297, 302, [2010]). This duty "requires that the school exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances" (BL Doe 3 v. Female Academy of the Sacred Heart, 199 AD3d 1419, 1422, [4th Dept 2021] [internal quotation marks omitted]). A plaintiff may succeed on a claim of negligent supervision by establishing "that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury" (Mirand, 84 NY2d at 49). Further, although unanticipated third-party acts generally will not give rise to liability (see Brandy B., 15 NY3d at 302), a school district may nonetheless "be held liable for an injury that is the reasonably foreseeable consequence of circumstances it created by its inaction" (Doe v. Fulton School Dist., 35 AD3d 1194, 1195 [4th Dept 2006]; see Bell v. Board of Educ. of City of NY, 90 NY2d 944, 946-947 [1997]; Mirand, 84 NY2d at 49-51; Murray v. Research Found. of State Univ. of NY, 283 AD2d 995, 997 [4th Dept 2001], lv denied 96 NY2d 719, 733 [2001]). Similarly, to establish a claim of negligent retention, "it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Shapiro v. Syracuse Univ., 208 AD3d 958, 960 [4th Dept 2022] [internal quotation marks omitted]; see Pater v. City of Buffalo, 141 AD3d 1130, 1131 [4th Dept 2016], lv denied 29 NY3d 911 [2017]).

The Court recognizes that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact (see Kelsey v Degan, 266 AD3d 843 [4th Dept. 1999]; McGraw v Ranieri [3d Dept 1994]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). On a motion for summary judgment, the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact (S.J. Capelin Assoc. v. Globe Manufacturing Corp., 34 NY2d 338 [1974]. To defeat a motion for summary judgment, the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact, and importantly mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Plaintiff argues that Sweet's personnel records and that details of the 1969 incident are enough to establish a prima facie case for summary judgment. The inaction of the District after being placed on notice of Sweet's propensity for the conduct which caused the injury to L.A. is enough to eliminate any doubt as to the existence of a triable issue of fact. Plaintiff also argues that L.A.'s testimony and accusations are unrefuted also satisfying the standards for summary judgement.

Defendant argues that there is no evidence that the District's actions in 1969 failed to deviate from the standard of care at the time. The Court of Appeals recently stated in Nellenback v Madison County,( — NE3d —, 2025 NY Slip Op 002263 [2025]) that parties are required to demonstrate defendants deviated from the governing standard of care at the time relevant to the facts bearing on notice. "Even if evidence of lax practices were sufficient to prove notice, [Plaintiff] fails to point to any evidence that shows the County deviated from the standard of care that was reasonable at the time" (id.). Defendant also argues that Plaintiff has failed to demonstrate that even if the District was on notice it can't be proven, at this stage, that such notice proximately caused her abuse more than nine years after the 1969 incident was reported.

"The adequacy of the school's supervision and whether the alleged lack thereof was a proximate cause of the underlying injury generally are questions of fact for a jury to resolve" (Johnson v Ken-ton Union Free School Dist., 48 AD3d 1276, 1277 [4th Dept 2008] quoting Doe v Board of Educ. Of Morris Cent. School, 98 AD3d 588, 590 [3d Dept 2004]). Given the lack of evidence presented regarding the standard of care in 1969 and the burden the movant must overcome at the summary judgment stage, Plaintiff has failed to make a prima facie case regarding notice and proximate cause. In addition, Plaintiff's conclusory allegations in her deposition testimony are inadequate to demonstrate as a matter of law that she was abused. Sweet's personnel records establish that he denied the allegations and L.A.'s own testimony, as well as her pleadings, state that he denied the abuse. Determinations as to the witness' credibility as to whether she was abused is an essential function of the jury.

Accordingly, and for the foregoing reasons, it is hereby

ORDERED that the Plaintiff's motion for summary judgment is DENIED in its entirety; and it is further

ORDERED that Defendant's motion to preclude information in Sweet's personnel file is DENIED for purposes of this motion with further determinations as to admissibility to be determined at trial; and it is further

ORDERED that this constitutes the Decision and Order of the Court.