August 31, 2022

School District's motion to dismiss the causes of action alleging a student was sexually molested by an employee of the school district denied

In this action to recover damages, the complainant [Plaintiff] alleged that he was sexually molested by his guidance counselor, who was an employee or special employee of the defendant [School District].  Supreme Court denied School District's motion to dismiss the causes of action alleging "negligence, gross negligence, negligent hiring, retention, supervision, and direction, and breach of fiduciary duty insofar as asserted." 

The School District appealed the Supreme Court's ruling.

Explaining that on a motion to dismiss for failure to state a cause of action under CPLR §3211(a)(7) the Appellate Division said that a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" and denied School District's appeal.*

The amended complaint alleged, among other things, that the School District had prior notice of the guidance counselor's propensity to sexually molest students and that the School District "nevertheless permitted the guidance counselor to meet one-on-one with students, including the Plaintiff, and that the School District thereby negligently failed to prevent the guidance counselor from sexually molesting the Plaintiff."

Further, said the Appellate Division, Supreme Court properly found that the Plaintiff sufficiently pleaded causes of action alleging negligence, gross negligence, and negligent hiring, retention, supervision, and direction, citing Moskowitz v Masliansky, 198 AD3d 637 and other decisions.

* The Appellate Division noted "[c]auses of action alleging negligent hiring, negligent retention, or negligent supervision are not statutorily required to be pleaded with specificity".

Click HERE to access the Appellate Division's decision.

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