Lamarche v Big Brothers/Big Sisters of Am.

[*1] Lamarche v Big Brothers/Big Sisters of Am. 2009 NY Slip Op 50107(U) [22 Misc 3d 1113(A)] Decided on January 23, 2009 Supreme Court, Richmond County McMahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 23, 2009
Supreme Court, Richmond County

Jayne Lamarche, Mother and Natural Guardian of RYAN LAMARCHE, and JAYNE LAMARCHE, Individually, Plaintiff(s),

against

Big Brothers/Big Sisters of America, BIG BROTHERS/BIG SISTERS OF NEW YORK CITY, INC., and HARLOW NICHOLSON, a/k/a HARLOW A. NICHOLSON, Defendant(s).



103446/2005

Judith N. McMahon, J.

The action was commenced by the infant plaintiff, Ryan Lamarche, and his guardian/mother Jayne Lamarche on or about November 29, 2005, alleging that the defendants, Big Brothers/Big Sisters of America [hereinafter "BBBS of America"] and Big Brothers/Big Sisters of NYC, Inc. [hereinafter "BBBS of NYC"] failed to adequately screen/supervise defendant Harlow Nicholson in matching him with the infant plaintiff as a big brother. As a result, the plaintiff allegedly sustained traumatic injuries after the inappropriate actions of defendant Nicholson led to him pleading guilty to child endangerment charges.

Big Brothers/Big Sisters of America [FN1] is a non-for-profit organization designed to foster mentoring relationships for this nation's youth. BBBS of America, as a national entity, does not operate the mentoring programs itself, rather, its affiliates foster the relationships and monitor the day-to-day programs designed to achieve the goals. The relationship between BBBS of America and its affiliates, like BBBS of NYC, is governed by a "Membership Affiliation Agreement". These membership agreements recognize the affiliates' autonomy regarding "administration of its program within its designated Service Community Area" and provides that the affiliates hire, supervise, select and monitor all employees and volunteers. BBBS of America supports its [*2]affiliates by offering training and promulgating Standards of Practice to help guide them in the daily management of the mentoring programs. BBBS of America has no direct contact with volunteers, volunteer selection, or any screening process.

Big Brothers/Big Sisters of NYC [FN2], as an affiliate of BBBS of America, is a non-profit youth organization that is designed to provide youth with mentors in the New York City area. Big Brothers/Big Sisters of New York City hires it's own employees and selects all volunteers through an application process, run by BBBS of NYC. In applying to become a "little brother/little sister" the youth must make a commitment and attend an orientation with a parent or guardian. In seeking to become a "big brother/big sister" the individual must make a one year commitment and go through a screening process. The screening process includes an interview, criminal background check, social security trace and reference checks. BBBS of NYC conducts the interview process and reviews the applications.

With respect to the facts in the instant matter, it is undisputed that in or about October 2002, the infant plaintiff signed up with BBBS of NYC in an attempt to get paired with a big brother. As a result of the tragic events of September 11, 2001, the waiting list was longer than usual and the infant was not paired until 2003. BBBS of NYC determined that the infant plaintiff would be paired with the defendant Harlow Nicholson, as the big brother. Defendant Harlow Nicholson applied to become a big brother through a joint program BBBS of NYC had with the New York City Fire Department, where defendant Nicholson worked as a dispatcher for 18 years. Defendant Nicholson attended the interview, completed the social security and background checks, along with references checks, prior to being selected as a big brother. Further, defendant Nicholson did disclose that he is a recovering alcoholic and grew up with emotional abusive parents for which he received therapy from 1985 through 1990. Ms. Barbara Wald, from BBBS of NYC, reviewed the defendant's application and determined that defendant Nicholson should be accepted into the program.

In February 2004, both the plaintiffs and defendant Nicholson met with Nanda Prabhakar, the case manager assigned to this match'. Both parties indicated the match was successful and the infant plaintiff and defendant Nicholson met several times. At points during the match' BBBS of NYC contacted the infant plaintiff's parent to ascertain the level of satisfaction or address any needs/concerns. At all intervals prior to December 2004, the infant plaintiff's mother indicated that the match' was a success and that the infant enjoyed defendant Nicholson's company.

Throughout the duration of the match' defendant Nicholson gave the infant several letters. The infant plaintiff presented each letter to his mother to read, none of which, prior to December 2004, caused any alarm by Jayne Lamarche. It was in or about, December 2004, when the infant received a letter from defendant Nicholson, presented it to his mother to read, whereby [*3]the defendant asked the infant for sexual favors. Immediately upon reading the letter, the infant's mother contacted BBBS of NYC and the New York City Police Department. It was later discovered that the defendant had, on several occasions, asked for sexual favors from the infant plaintiff and had also purchased numerous pornographic magazines for him. A subsequent letter was also produced, whereby the defendant asked again for inappropriate behavior between him and the infant. As a result, the defendant was immediately terminated as a big brother, and, in May 2005, the defendant Nicholson pled guilty to endangering the welfare of a child and received the sentence of a conditional discharge.

The plaintiff subsequently commenced this lawsuit alleging that defendants BBBS of America and BBBS of NYC were both negligent in their supervision/selection/monitoring of defendant Harlow Nicholson as a big brother. Further, the infant plaintiff's mother seeks damages for loss of services/consortium from her son and plaintiffs also maintain a cause of action for punitive damages, as a result of the aforementioned incident. Presently, issue has been joined and discovery is complete. The defendant BBBS of America is moving for summary judgment on the ground that, inter alia, they owed no duty to the plaintiff and cannot be held vicariously liable for the independent acts of the defendant Harlow Nicholson. The defendant BBBS of NYC is also moving for summary judgment seeking to dismiss the complaint in its entirety against it, on the grounds that, inter alia, they cannot be held liable for the acts of the defendant Harlow Nicholson because they had no reason to know that he had a propensity towards injurious conduct. Lastly, plaintiffs are moving for summary judgment on the ground that, inter alia, there are no questions of fact that defendant BBBS of NYC and defendant Harlow Nicholson were negligent in their selection/relationship between defendant Nicholson and the infant plaintiff.

It is well settled that a "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).

I.Defendant Big Brother/Big Sister of America's Motion for Summary Judgment[Motion 002]

It is well settled that establishing a negligence cause of action requires the plaintiff to prove (1) a duty of care was owed to the them, (2) breach of that duty, (3) that the breach is proximate cause of the plaintiff's injury, and (4) that plaintiff sustained damages as a result (Akins v. Glens Falls City School Dist., 53 NY2d 325, 333 [1981]). "The threshold question in any negligence action is whether the alleged tortfeasor owes a duty of care to the injured party" (Espinal v. Melville Snow Contrs., Inc., 98 NY2d 136, 138 [2002]; Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]; Sheila C. v. Povich, 11 AD3d 120, 125-126 [1st Dept., 2004]). "Foreseeability of injury does not equate with duty. Privity or a relationship akin to privity [*4]between parties is required [and are] factored into the determination of whether a duty" (Megally v. LaPorta, 253 AD2d 35, 41 [2d Dept. 1998]). "The existence and scope of that duty is a legal question for the courts to determine" (Shelia C. V. Povich, 11 AD3d at 125-126; 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 NY2d 280, 288 [2001]).

With respect to the liability of BBBS of America, generally, "[a] parent corporation will not be held liable for the torts or obligations of a subsidiary unless it can be shown that the parent exercised complete dominion and control over the subsidiary" (Potash v. Port Auth., 279 AD2d 562 [2d Dept. 2001]; Mitchell v. TAM Equities, Inc., 27 AD3d 703, 708 [2d Dept., 2006]). Under a similar theory, even if BBBS of NYC was viewed as an independent contractor of BBBS of America, it is well settled "that a party who retains an independent contractor is not liable for the negligence of the independent contractor because it has no right to supervise or control the work" (Backiel v. Citibank, N.A., 299 AD2d 504, 505 [2d Dept. 2002]).Further, in order to hold BBBS of America liable for the criminal acts by third parties, they must have "knew or should have known of the employee's propensity for the conduct which caused the injury" (Kenneth R. v. Roman Catholica Diocese of Brooklyn, 229 AD2d 159, 161 [2d Dept., 1997]).

Here, the defendant BBBS of America has presented sufficient evidence to establish its entitlement to summary judgment as a matter of law that they did not owe a duty of care to the plaintiffs (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Shelia C. V. Povich, 11 AD3d at 125-126). First, plaintiff contends that BBBS of America is negligent in failing to properly supervise/select or put precautionary measures in place to ensure incidents such as this do not occur. However, BBBS of America, as the national entity, has presented sufficient evidence to establish that it had no direct control or contact, whatsoever, with the selection of defendant Harlow Nicholson as big brother to the infant plaintiff, or any contact regarding any matches. BBBS of America has established that the extent of the relationship between itself and BBBS of NYC, or any other national affiliate, is merely to establish goals, promulgate standards and provide training.

Here, it is clear that BBBS of America possessed no direct control or supervision of the affiliate BBBS of NYC, in their selection of any member, and further that the affiliate entity has complete autonomy regarding procedures, supervision, selection and determination of employees and/or volunteers. As a result, BBBS of America cannot be held liable for employees/volunteers of BBBS of NYC (Potash v. Port Auth., 279 AD2d 562 [2d Dept. 2001]. Further, there is no evidence that indicates that BBBS of America was even aware of the selection of defendant Nicholson as big brother' for the plaintiff, let alone, any tendencies for violence or sexual assault (Kenneth R. v. Roman Catholica Diocese of Brooklyn, 229 AD2d 159, 161 [2d Dept., 1997]).

In opposition, the plaintiffs have failed to establish any questions of fact that would indicate that BBBS of America owed them a legal duty (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Espinal v. Melville Snow Contrs., Inc., 98 NY2d 136, 138 [2002]). Specifically, plaintiff's failed to establish that BBBS of America had any knowledge of the match between the infant plaintiff and the defendant, or was responsible for any day-to-day operations, selection or monitoring of volunteers. Further, plaintiff's failed to present any questions of fact regarding whether BBBS of America should have known of the tendencies of the defendant Nicholson. As a result, summary judgment is appropriately granted in favor of the defendant's Big Brother/Big Sisters of America and all causes of action against it are dismissed. [*5]

II.Defendant Big Brothers/Big Sisters of NYC, Inc.'s and Plaintiffs' motions for Summary Judgment

[Motion Nos. 003 and 004]

BBBS of NYC seeks summary judgment dismissing the claims against it, on the theory that it did not know of the defendant Nicholson's tendencies and/or did not negligently supervise/select him as a big brother. Additionally, the plaintiff seeks summary judgment against defendants BBBS of NYC and defendant Harlow Nicholson, claiming that they were negligent in supervising/acting as a big brother to the infant plaintiff.

As previously established, a negligence cause of action requires the plaintiff to prove (1) a duty of care was owed to the them, (2) breach of that duty, (3) that the breach is proximate cause of the plaintiff's injury, and (4) that plaintiff sustained damages as a result (Akins v. Glens Falls City School Dist., 53 NY2d 325, 333 [1981]). "The threshold question in any negligence action is whether the alleged tortfeasor owes a duty of care to the injured party" (Espinal v. Melville Snow Contrs., Inc., 98 NY2d 136, 138 [2002]; Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]; Sheila C. v. Povich, 11 AD3d 120, 125-126 [1st Dept., 2004]).

In this instance, both BBBS of NYC and plaintiff have successfully established their respective entitlements to summary judgment (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Specifically, defendant BBBS of NYC has presented sufficient evidence that they acted reasonably in their interview/screening process and had no knowledge of the defendant's tendencies towards inappropriate conduct. The plaintiff, however, has established questions of fact as to whether the defendent BBBS of NYC should have known of the tendencies given the information of his alcoholic and emotionally abusive parental past and not approved defendant Harlow Nicholson as a big brother. As a result, questions of fact exist whether defendant BBBS of NYC should have known of the propensity of the defendant Nicholson towards sexually assaultive behavior as a result of his emotionally unstable past, which included alcoholism and therapy, is a question of fact for the jury and thus, summary judgment is inappropriate in favor of BBBS of NYC, or the plaintiffs.

III.Plaintiff, Jayne Lamarche's Derivative Causes of Action

Generally, in New York parents cannot recover for loss of consortium/loss of services for their children (Dunphy v. J & I Sports Enterprises, 297 AD2d 23, 26-27 [2d Dept., 2002]; Devito v. Opatich, 215 AD2d 714, 715 [2d Dept., 1995][holding that parental recovery for loss of consortium is not compensable where no proof of loss of services is presented]).

Presently, the defendants have sufficiently established their entitlement to summary judgment on the derivative loss of consortium claims (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In opposition, the plaintiff, Jayne Lamarche, has failed to establish proof of the loss of services sustained and as such summary judgment is warranted on the derivative causes of action in their entirety (Dunphy v. J & I Sports Enterprises, 297 AD2d 23, 26-27 [2d Dept., 2002]; Devito v. Opatich, 215 AD2d 714, 715 [2d Dept., 1995]).

IV.Punitive Damages Cause of Action

Generally, "New York does not recognize an independent cause of action for punitive damages. Instead, [a] demand or request for punitive damages is parasitic and possesses no [*6]viability absent its attachment to a substantive cause of action'" (Randi A. J. v. Long Is. Surgi-Center,46 AD3d 74, 80-81 [2nd Dept., 2007]; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 616 [1994]). Further, "it is well-settled that conduct warranting an award of punitive damages need not be intentionally harmful but may consist of actions which constitute willful or wanton negligence or recklessness'" ( Randi A. J. v. Long Is. Surgi-Center,46 AD3d 74, 80-81 [2nd Dept., 2007]; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 204 [1990]). To warrant an award of punitive damages the conduct complaint of must be "[s]uch wantonly negligent or reckless" and "sufficiently blameworthy" as to act as a deterrent for future conduct, as public policy dictates (Randi A. J. v. Long Is. Surgi-Center,46 AD3d 74, 80-81 [2nd Dept., 2007]; Doe v Roe, 190 AD2d 463, 474-475 [4th Dept., 1993).

Here, the defendant BBBS of NYC has met its burden sufficiently to entitle them to summary judgment on the causes of action plaintiffs allege for punitive damages (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Specifically, BBBS of NYC established that it did not engage in such behavior intentionally, and with complete wanton disregard for the infant plaintiff's well being to warrant punitive damages. However, in opposition, the plaintiff has sufficiently raised triable issues of fact precluding summary judgment. This Court recognizes the trauma and damage suffered by the infant plaintiff as a result of the acts of defendant Harlow Nicholson and reserves for the jury, the question of whether liability, as well any punitive damages, shall be tendered against BBBS of NYC. As such, summary judgment on the plaintiff's punitive damages causes of action is denied.

Accordingly, it is

ORDERED that defendant Big Brothers/Big Sisters of America's motion for summary judgment is hereby granted, and it is further

ORDERED that all claims against Big Brothers/Big Sisters of America are dismissed in their entirety, and it is further

ORDERED that the defendant Big Brothers/Big Sisters of New York City, Inc.'s motion for summary judgment is hereby denied, and it is further

ORDERED that the plaintiff's motion for summary judgment is hereby denied in its entirety, and it is further,

ORDERED that all derivative claims by plaintiff Jayne Lamarche are dismissed in their entirety, and it is further,

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: January 23, 2009ENTER,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:"Big Brothers Big Sisters is the oldest, largest and most effective youth mentoring organization in the United States. We have been the leader in one-to-one youth service for more than a century, developing positive relationship that have a direct and lasting impact on the lives of young people. Big Brothers Big Sisters mentors children, ages 6 through 18, in communities across the country - including yours.

The Big Brothers Big Sisters Mission is to help children reach their potential through professionally supported, one-to-one relationship with mentors that have a measurable impact on youth.

The Big Brothers Big Sisters Vision is successful mentoring relationships for all children who need and want them, contributing to brighter futures, better schools, and stronger communities for all." (Big Brothers/Big Sisters of America [http://www.bbbs.org/site/c.diJKKYPLJvH/b.1539781/k.4319/Mentors__The_Largest_Youth_ Mentoring_Programs_from_Big_Brothers_Big_Sisters.htm]).

Footnote 2:"The mission of Big Brothers Big Sisters of New York City is to provide mentors to all children who need caring adult role modelsspecial friends who can help expand their horizons, realize their potential and enrich their futureschanging their lives. We seek to train community organizations in every neighborhood, empowering them to establish their own mentoring programs" (Big Brothers/Big Sisters of New York City, [http://www.bigsnyc.org/])