Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 8, 2026

2025-08146, (Index No. 63257/23)

Mark C. Dillon, J.P.

Colleen D. Duffy

Carl J. Landicino

Elena Goldberg Velazquez, JJ.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the defendants the White Plains Public School District and the Board of Education of White Plains City School District separately appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated May 30, 2025. The order, insofar as appealed from by the defendant the White Plains Public School District, denied those branches of its motion which were for summary judgment dismissing stated portions of the fourth and fifth causes of action insofar as asserted against it. The order, insofar as appealed from by the defendant the Board of Education of White Plains City School District, denied its motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion of the defendant the White Plains Public School District which were for summary judgment dismissing, insofar as asserted against it, so much of the fourth and fifth causes of action as were based on conduct that was alleged to have occurred prior to the plaintiff's alleged disclosure of such conduct, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and, upon searching the record, summary judgment is awarded to the defendant the Board of Education of White Plains City School District dismissing so much of the fourth and fifth causes of action as alleged vicarious liability, the sixth cause of action, and the demand for punitive damages insofar as asserted against it.

In July 2023, the plaintiff commenced this action against, among others, his former employer, the defendant the White Plains Public School District (hereinafter the District), and the defendant the Board of Education of White Plains City School District (hereinafter the Board and, together with the District, the defendants) pursuant to the Adult Survivors Act (CPLR 214-j) to [*2]recover damages for sexual abuse he alleged he was subjected to during his employment with the District by the then-superintendent of the District. The plaintiff asserted causes of action alleging, inter alia, negligence (fourth cause of action), negligent hiring, retention, and supervision (fifth cause of action), and negligent infliction of emotional distress (sixth cause of action), and included, among other things, a demand for punitive damages.

Following the completion of discovery, the Board moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the plaintiff's exclusive remedy was pursuant to the Workers' Compensation Law. The District separately moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that the Workers' Compensation Law provided the exclusive remedy for the plaintiff's alleged injuries. The other grounds asserted by the District on the motion for summary judgment included, inter alia, that it lacked actual or constructive notice of the alleged abuse, that the fourth and fifth causes of action should be dismissed to the extent they allege vicarious liability, that the sixth cause of action, alleging negligent infliction of emotional distress, should be dismissed as duplicative of the causes of action sounding in negligence, and that the demand for punitive damages should be dismissed. The plaintiff opposed both motions. In an order dated May 30, 2025, the Supreme Court denied the Board's motion and denied the District's motion, except to the extent of granting those branches of the District's motion which were for summary judgment dismissing, insofar as asserted against it, so much of the fourth and fifth causes of action as alleged vicarious liability, the sixth cause of action, and the demand for punitive damages. The defendants separately appeal.

"Under the Workers' Compensation Law, an employee's recovery of workers' compensation benefits is his or her exclusive remedy against his or her employer or coworkers for injuries sustained in the course of his or her employment" (Zielinski v New Jersey Tr. Corp., 170 AD3d 927, 928; see Workers' Compensation Law §§ 11[1]; 29[6]). "Workers' compensation qualifies as an exclusive remedy when both the plaintiff and the defendant are acting within the scope of their employment, as coemployees, at the time of the injury" (Macchirole v Giamboi, 97 NY2d 147, 150; see Myung Sook Cho-Oh v Choi, 102 AD3d 755, 755).

"A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law must demonstrate, prima facie, the applicability of the exclusivity provisions of the Workers' Compensation Law" (Smith-Lerner v Art Students League of N.Y., 118 AD3d 865, 866).

Here, the Supreme Court properly denied those branches of the defendants' separate motions which were premised on the exclusivity defense of the Workers' Compensation Law, as each failed to establish, prima facie, that they maintained workers' compensation insurance during the relevant time period, or that the plaintiff received workers' compensation benefits as a result of his alleged injuries (see Vitello v Amboy Bus Co., 83 AD3d 932, 933; Beaucejour v General Linen Supply & Laundry Co., Inc., 39 AD3d 444, 445). Since an affirmation regarding this issue was submitted by the Board for the first time in reply, the defendants each failed to satisfy their prima facie burden of establishing workers' compensation coverage (see Matthews v Bright Star Messenger Ctr., LLC, 173 AD3d 732, 734). Accordingly, those branches of the defendants' separate motions were properly denied without regard to the sufficiency of the plaintiff's opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The Supreme Court also properly denied those branches of the District's motion which were for summary judgment dismissing the fourth and fifth causes of action, insofar as asserted against it, to the extent that those causes of action alleged conduct that occurred subsequent to the plaintiff's alleged disclosure of the sexual abuse to his direct supervisor.

"'To establish a cause of action based on negligent hiring, 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'" (Sayegh v City of Yonkers, 228 AD3d 690, 691, quoting Shor v Touch-N-Go Farms, Inc., 89 AD3d 830, 831). "The employer's [*3]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 hiring[,] . . . retention[, or supervision] of the employee" (D.T. v Sports & Arts in Schs. Found., Inc., 193 AD3d 1096, 1097 [internal quotation marks omitted]; see Johansmeyer v New York City Dept. of Educ., 165 AD3d 634, 635-637).

In opposition to the showing by the District that it lacked actual or constructive notice as to those allegations of abuse, the plaintiff raised a triable issue of fact as to whether the District had actual or constructive knowledge of the then-superintendent's conduct (see T.F. v Clarkstown Cent. Sch. Dist., 238 AD3d 988, 990).

However, the Supreme Court should have granted those branches of the District's motion which were for summary judgment dismissing, insofar as asserted against it, so much of the fourth and fifth causes of action, alleging negligence and negligent hiring, retention, and supervision, as were based on conduct that was alleged to have occurred prior to the plaintiff's alleged disclosure of the abuse to his immediate supervisor.

"A necessary element of a cause of action alleging negligent hiring 'is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury . . . . There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee'" (Doe v Whitney, 8 AD3d 610, 612, quoting Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161, 163; see S.W. v Commack Sch. Dist., 245 AD3d 984). Here, the District demonstrated its prima facie entitlement to judgment as a matter of law by submitting a transcript of the deposition testimony of a member of the Board during the time when the then-superintendent was hired, who testified that she never heard any allegations or rumors of sexual abuse about the then-superintendent prior to the filing of this action. That Board member also testified about the Board's diligent vetting of the then-superintendent during the hiring process. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the District was aware of facts that would have led a reasonably prudent person to further investigate the then-superintendent during the hiring process (see Doe v Whitney, 8 AD3d at 612).

"Where . . . allege[d] negligent supervision [or retention results in] injuries relat[ing] to an individual's intentional acts, the plaintiff generally must [establish as an element of the claim] that the [employer] 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" (Burdo v Cold Spring Harbor Cent. Sch. Dist., 219 AD3d 1481, 1482 [internal quotation marks omitted]). Therefore, "[a]ctual or constructive notice to the school of prior similar conduct generally is required" (Mathis v Board of Educ. of City of N.Y., 126 AD3d 951, 952 [internal quotation marks omitted]; see Nellenback v Madison County, 44 NY3d 329).

Here, the District established, prima facie, that it lacked actual or constructive notice of the then-superintendent's alleged sexual abuse as to conduct that was alleged to have occurred prior to the plaintiff's disclosure of the alleged abuse based on, inter alia, the deposition testimony of the District's clerk and two members of the Board. These witnesses all testified that, during the relevant time period, they were never informed of or heard any rumors about misconduct by the then-superintendent prior to the filing of this action. The District's clerk also averred in an affidavit that none of the files maintained by the District or the Board, including meeting minutes and personnel files, reflected any reports of alleged abuse by the then-superintendent. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the District's lack of a sexual harassment policy or reporting practices at the time of the alleged sexual abuse, alone, was insufficient to raise a triable issue of fact as to notice, insofar as there is no allegation that the District deviated from the standard of care that was reasonable at the time (see Nellenback v Madison County, 44 NY3d at 337-338).

This Court has the authority to search the record and award summary judgment to a [*4]nonmoving party with respect to the issues that were the subject of a motion before the Supreme Court (see CPLR 3212[b]; Bryant v Loft Bookstore Café, LLC, 138 AD3d 664, 666).

With respect to so much of the fourth and fifth causes of action as alleged vicarious liability, the sixth cause of action, and the demand for punitive damages insofar as asserted against the Board, this Court exercises its discretion to search the record and hereby awards summary judgment to the Board dismissing those causes of action insofar as asserted against it. These causes of action were before the Supreme Court as part of the District's motion, and are subject to dismissal based upon the same rationale which supported the award of summary judgment in favor of the District with respect to those causes of action (see Chiamulera v New Windsor Mall, 212 AD3d 770, 772; Rodriquez v Kimco Centerreach 605, 298 AD2d 571, 572).

In light of the foregoing, we need not reach the defendants' remaining contentions.

DILLON, J.P., DUFFY, LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court