J.A. v City of New York

[*1] J.A. v City of New York 2009 NY Slip Op 52823(U) Decided on January 6, 2009 Supreme Court, Bronx County Sherman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2009
Supreme Court, Bronx County

J.A., an infant over the age of 14 years by his mother and natural guardian, LYDIA RAMOS, and LYDIA RAMOS, Individually, Plaintiffs,

against

The City of New York and THE NEW YORK CITY DEPARTMENT OF EDUCATION and TARA McDERMOTT, Defendants MARILYN ARCE, as Mother and natural guardian of M.C. Plaintiff THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF EDUCATION Defendants



MARILYN ARCE, as Mother and natural guardian of M.C. Plaintiff -against-

against

THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF EDUCATION Defendants



22072/01

Howard H. Sherman, J.

The following papers numbered 1 to 5 read on this motion for summary judgment noticed on August 21, 2007 and duly submitted on the Motion Calendar of June 3, 2008

PAPERS NUMBERED

Notice of Motion-Exhibits [A-P] and Affirmation annexed1

Affirmation in Opposition - Exhibits [A-D] - J.A.2 Affirmation in Opposition - Exhibits [A-C] - Arce3

Affirmation in Reply - J.A.

Affirmation in Reply - Exhibit A - Arce 45

.

Upon the foregoing papers, the above motion is decided as set forth below.

Facts and Procedural Background

[*2]These two cases seeking compensatory [FN1] damages, stem from the June 8, 2001 sexual assault of the minor plaintiffs by the individual defendant in action No.1, Tara McDermott ("McDermott" ). At the time of the assault, the plaintiff J.A. [FN2] was one day shy of his fourteenth birthday, while M.C., was twelve. Both were students at P.S. 211 in the Bronx at which school McDermott was employed as a paraprofessional. The assault occurred after school hours at McDermott's home . A criminal investigation ensued and McDermott was arrested on June 20, 2001. She was suspended without pay on June 21, 2001 pending the investigation , and on September 24, 2002 , she entered a plea of guilty to two counts of rape in the third degree [Penal Law § 130.25]. She was sentenced to two concurrent sentences of one to three years in prison and was released after serving the maximum sentence.

The first entitled action was commenced in August 2001, and as amended , alleges that the defendant McDermott was acting within the scope of her employment when the assault occurred and that the municipal defendants were therefore vicariously liable for her conduct. It is also alleged that defendant was negligent in its hiring, training, retention and supervision of McDermott. Issue was joined with respect to defendants City of New York and New York City Department of Education in the same month, and a note of issue filed on April 11, 2007.

The second action was commenced in June 2003 . It was alleged that the infant plaintiff was sexually assaulted due to the defendants' negligent supervision of the students in its charge, and due to the negligent hiring , supervision , and retention of McDermott. Issue was joined by the service of defendant's answer in July, 2003. A note of issue was also filed on April 11, 2007.

Motion

The defendants move to dismiss the second action on the ground that the plaintiffs failed to serve the City with Notice of Claim in conformity with a prior order of this court granting leave for same.

Defendants move for an award of summary judgment dismissing the complaints in both actions on the grounds that: 1) at the time of the incident, defendants did not owe the plaintiffs a duty of care; 2) defendants cannot be held liable under a theory ofrespondeatsuperior as a matter of law ; 3) defendants have no liability under the doctrine of negligent hiring, retention or supervision; 4) defendants are entitled to immunity for their discretionary decisions and, 5) dismissal is warranted as against defendant City of New York as it is not a proper party to these actions. In support of the motion defendants submit copies of the Notices of Claim, the pleadings, and the verified bills of particulars [Exhibits A-K]; the 04/14/05 testimony of plaintiff M.C. [ Exhibit L], and the 03/21/06 testimony of plaintiff J.A. [Exhibit M] , as well as that of PS. 211 Supervising School Aide, Brenda Savage [Exhibit O], and former Assistant Principal Eileen Cohen[ Exhibit P], and the affidavits of the Director for Employee Relations for the Division of Human Resources [*3]at the Department of Education [Exhibit R], and the Assistant Principal at Public School 754x concerning a search for contemporaneous "anecdotal records." [Exhibit R].

In opposition, plaintiffs in the first action argue that the record herein raises triable issues of fact as to whether defendants breached the requisite duty of care of a reasonably prudent parent under the circumstances by failing to "supervise or control the release of the underage male students to Tara McDermott , whom defendants should have known posed a foreseeable risk of harm, even if that risk was remote." Plaintiffs also argue that the Department of Education (D.O.E.) is liable under the theory of respondeatsuperior as there is "no dispute that the determination is always a factual one for the jury unless the undisputed facts provide no basis for applying the doctrine." Plaintiffs contend that there are also triable issues of fact as to whether defendants are liable under the theory of negligent hiring, supervision, and retention , and maintain that the defendants are not entitled to immunity. Plaintiffs submit a copy of the 01/03/08 examination before trial of defendant McDermott [Exhibit A] , a transcription of her videotaped confession in the criminal proceeding [Exhibit B], a copy of that video [Exhibit C], as well as a forensic psychological evaluation of McDermott conducted at the request of her criminal defense attorney [Exhibit D].

In opposition, plaintiff in the second action adopts the above arguments and maintains that the Notice of Claim was timely served in conformity with the order of the court (Crispino, J) dated January 31, 2003. A copy of the Notice with the stamp receipt of the Corporation Counsel is annexed as Exhibit "C." Plaintiff also submits copies of McDermott's EBT [Exhibit B] and the psychologist's report [Exhibit A].

In reply, defendants contend that the J.A. opposition papers should not be considered as they were not served in conformity with the stipulation of the parties adjourning the submission of the papers. The stipulation called for facsimile service on defendants on or before May 13, 2008. [The affidavit of service indicated that the papers were mailed.] Defendants also argue that the psychological evaluation is inadmissible as it is neither authenticated , and no proper foundation has been established for its admission as a business record. In addition, defendants maintain that plaintiffs' claims for negligent supervision must be dismissed as plaintiffs have failed to rebut defendants showing that at the time and place of the incident, the defendants owed no duty of care to the plaintiffs. Moreover, it is argued that neither plaintiff has raised a triable issue of fact to rebut the showing that there is no basis for claims under the theories of respondent superior, and negligent hiring/retention.

With reference to the procedural issues raised, the court will entertain the opposition papers submitted by plaintiff J.A. despite the fact that there appears to have been no facsimile service of those papers as contemplated in the stipulation of adjournment . The defendants make no showing of prejudice resulting from such consideration.

In addition, it is clear that any challenge to the timeliness of the service of the Notice of Claim in the second entitled action is unavailing . The prior order (Crispino, J.) dated January 31, 2003 provided for service and filing of the notice within thirty days thereof. The Corporation Counsel date-stamp on the copy of plaintiff M.C.'s Notice of Claim reads: February 26, 2003.

[*4]DEPOSITION TESTIMONY

During the 2000-2001 school year, CS 211 was a "satellite" or "off site" middle school program under the auspices of Public School 754X , located on Prospect Avenue in the Bronx. The Assistant Principal of the program , which was located in a portion of the fourth floor of the building site, was Eileen Cohen. Ms Cohen reported to the 754X Principal, Michael Burke. There were between fifty -five to sixty 754 X students assigned to the 211 program , ranging in ages from eleven to fourteen years . The students were assigned to the program based upon a determination of need for special education due to emotional disabilities/ behavioral problems [COHEN EBT: 33-35]. The program was assigned four classrooms , approximately six teachers , and approximately four para-professionals, one assigned to each courtroom [COHEN EBT: 9-18].

Tara McDermott was a para-professional assigned to CS 211 , having first been employed by the defendant department as a substitute para-professional in another school in November 1999, her employment application having been subject to a background investigation with fingerprinting and coordination of those prints with the Division of Criminal Justice Services [Affidavit of Andrew R. Goodman ¶¶ 3-4, Exhibit R to Moving Papers]. McDermott was assigned to CS 211 at the beginning of the 2000 school year.D.O.E. employee Brenda Savage was also assigned to CS 211 in the capacity of a Supervising School Aide [SAVAGE EBT: 7]. Ms. Savage testified that during the course of the school year, she could not remember exactly when, other than describing it as "jacket weather" , she observed McDermott after school hours in the company of two male students in a pizza parlor "around the corner" from the school [EBT: 34-39].She also testified that neither plaintiff was one of these two students [Id. 38]. She could not recall telling anyone at school of her observation [Id. 39]. Ms. Savage had occasion to make a similar observation later in the school year "[p]ossibly, the end of May, May, around May." She could not recall how many male students were with McDermott "[m]aybe, two", nor could she remember whether they were the same students she had seen in the pizza parlor earlier in the school year [Id. 40]. She testified that she was prompted to enter this time because it was later in the day, "[m]aybe around 4:30 or 5:00" and she wanted to know why they weren't going home." [Id. 41]. [Class had been dismissed at 2:30 pm [Id..] As Ms Savage was entering, McDermott was leaving, and she said goodnight to Savage [Id. 42-43]. When Savage asked the students whether they were going home, they replied that they were [Id. 42-43]. She also asked them why they were in the pizza parlor with McDermott. They replied that they were being rewarded by McDermott for good behavior [Id. 57-58]. On the following day, Ms. Savage told Assistant Principal Cohen of her observations [Id. 43]. In Savage's presence , Cohen spoke to McDermott in her office , and "told her that it was inappropriate to have the kids there because of the timing and they should have been going home when they're dismissed and Tara said okay." [Id. 44]. Ms. Cohen testified that she had been told by a staff member that McDermott had taken students out for pizza, but she could not recall who that staff member was [COHEN EBT: 72-73].She also testified that she told McDermott "not to do it again." [Id. 74] as it was not professional , adding, "teachers and paras do not socialize after 2:00 the students leave and that's it." [Id. 75].During this conversation, when asked the reason for taking the students out, McDermott explained that she was doing it because "[t]hey behaved in class." [Id. 82]. No notation of the conversation was made for McDermott's [*5]personnel file [Id. 83]. Cohen also testified that she did not remember being advised by any staff member at anytime during the school year, "that Tara McDermott was becoming too friendly with any of the boys in the program." [Id. 64].After the conversation with Cohen , Ms. Savage had no further conversations with McDermott concerning the "pizza parlor" observations [ SAVAGE EBT: 44].Ms. Savage also testified that between the time of her two observations, she had a conversion with Larry Rivers, a teacher at 211 [Id. 48]. The conversation took place before work hours in the school cafeteria and then briefly outside as Rivers directed Savage's attention to McDermott , as she was watching four male students jumping off discarded mattresses in a vacant lot near the school building [Id. 48-49]. Ms. Savage did not report this observation to anyone at the school , nor did she recall Rivers making such a report [Id. 51].Ms. Savage did speak to the students in school and told them if she saw them jumping on the mattresses again, she would call their homes [Id. 52].

J.A. testified that in the spring of his eighth grade class year, he heard from a classmate , Rodney , that Tara McDermott would meet up with students after school and "buy them pizza and stuff like that ." [ J.A. EBT: 39-40].[FN3]When asked to explain what "other stuff besides pizza if anything" meant, J.A. replied, "[f]ood. McDonalds." [EBT: 40: 15-17]He testified that in April , McDermott bought him pizza after school on two occasions [Id.;46]. Prior to the first occasion, J.A. had never spoken to McDermott , nor to any other students about McDermott [Id. 41- 43]. On the first occasion, J.A. was on his was home from school , and he met Rodney and asked him "[w]hat's up." Rodney told him that he was going to the pizzeria. J.A. accompanied Rodney to the pizzeria, and McDermott was there, as was M.C. [Id. 41;45]. McDermott asked him if he wanted pizza, and when he replied yes, she bought him some. He had no further conversation with McDermott, and he remained in the pizza parlor for about twenty minutes talking to Rodney [Id. 42]The second occasion occurred about a week later when he was walking home after school with M.C. [Id. 43-45].J.A. testified that he and M.C. went into the pizza parlor, and other than McDermott asking whether he wanted pizza, he had no further conversation with her on that occasion , or on any subsequent occasion until the date of the incident. [Id. 45].He also testified that he did not tell anyone about these two encounters with McDermott [Id. 47].

After classes at 3:00 pm on June 7th, he was standing in the back exit of the school on his way to "flip" on the mattresses in the nearby vacant lot [Id. 64-67]. He used that exit as it was closer to the lot and "because there was two schools put together [and] [t]hat's where our side of the school would be dismissed." [Id. 68]. He walked out with M.C. , with whom he hung out "[a]lmost all the time.." [Id. 66].At that point , he saw McDermott, and she asked what they were doing [Id. 69]. M. C. replied that they were doing "nothing" and that it was "boring." [Id. 69-70].J.A. testified that at this point McDermott "looked at us , and she asked us if we're not doing nothing, if we would want to hang out with her in the house." [Id. :2-4].After M. C. shrugged his shoulders, J.A. said "[a]ll right" and McDermott said "[f]ine , all right, cool" , and stopped a cab , and they got into it, "right [*6]outside the back exit." [Id.: 17-25]. During the five minute cab ride, McDermott told the boys that her parents weren't home , and she did not want to be home alone [Id. 72]. Once at the house, McDermott took the boys to her room in the basement, and they sat on her bed while she changed her clothes in front of them , and then they proceeded to play "the paper game" that M. C. had brought with him that involved picking numbers that were assigned to various sex acts [Id. 78-83] . McDermott told the boys that there were condoms in a drawer , and they used them. McDermott performed oral sex on J.A., and had intercourse with him , and with M. C. [Id. 88-92]. J.A. got dressed , and left at approximately 4:00 PM - 4:30 PM [Id. 92-95] .

M. C. testified that he first met McDermott in school when he was in the seventh grade , and she was an "assistant teacher next door to my class." [M,C. EBT: 82]. She would say "hi" to him in the hallway, but nothing else [EBT: 84].Until the date of the incident , M.C. never saw McDermott at anytime after school [Id. 93], however, he did hear of McDermott "having sexual intercourse with other students ", but he testified that he "didn't believe it until it happened to me." [Id. 88: 1-7]. He heard these rumors from "Luis" and "Fidel", students who each claimed to have had sexual intercourse with McDermott [Id. 88-89].Neither student provided any details concerning their respective experiences [Id.89] , and M.C. did not speak to anyone about it [Id. 91-92].

On the morning of June 7th, M.C. had told the school principal and his counselor that he had been threatened by a student , and had overheard certain other students, and non-students, planning to "jump " him after school [Id. 95-99].He testified that he was told by his counselor to "see if one of the teachers could walk [him]" to the bus stop [Id. 105]. The counselor told M.C. that she couldn't do so as she was leaving early [Id.] , and the school dean whom M.C. asked to escort him also said he was unable to do so [Id. 106]. Towards the end of the school day, M.C. had a conversation with McDermott while he was standing at the door of the classroom, and she sitting at a desk. He relayed the threat and "told her I want to know if one of the teachers could escort me to the bus stop so I could feel better." [Id. 104-105]. McDermott replied that she "wouldn't mind doing it" [Id. 105] , and told M.C. to wait for her on the class floor until her class was dismissed [Id. 102].After school let out, he and J.A. waited for McDermott outside her class for about five minutes [Id. 107]. Then the three walked outside the building together without conversation [Id. 109].M.C. observed some of the students who had threatened him across the the street as he exited the building [Id. 110;112]. M.C. , J.A. , and McDermott were walking on Clinton Avenue towards Tremont for "about five to ten minutes." During this time McDermott "brought up the conversation about going to her house and doing homework there and then going home." [Id. 101; 94; 114 ].M.C. said "[a]ll right .[w]e will go over there do our homework and have Pepsi and have some chips..' [Id. 114]. The three got into a cab on Tremont Avenue. During the cab ride McDermott put her head on M.C.'s shoulder . M.C. asked McDermott what she was doing, but she just "smiled." [Id. 116]. When they arrived at McDermott's home about ten to fifteen minutes later, she took the boys to her basement room [Id. 117-118 ]. M.C. testified that J. A. had the "folded paper" game with him [Id. 119] and that it was he who was "making jokes about playing with it" , and that McDermott, "she took it serious, like she started undressing her clothes." [Id. 121]M.C. testified that McDermott "told us to go in the drawer and open the drawer, there were condoms." [Id. 124] McDermott had intercourse with [*7]M.C. and performed oral sex on him [Id. 126-129]. He stayed in McDermott's room for two and one-half hours [Id. 131] . She told him not to tell anyone anything, and then took him for a slice of pizza , and walked him to the bus stop [Id. 133-134].

On June 19, 2001, when she had returned to her office from the graduation at 754, Eileen Cohen was informed by staff members , including Ms. Savage and Larry Rivers , that they had been told by some students that M.C. and J.A. had sex with Tara McDermott [COHEN EBT: 40-42]. Ms Cohen relayed the information to her superior, Mr. Burke, and was advised by him to call the superintendent's office and "911." [EBT: 45].She also notified the office of the DOE special commissioner of investigations [Id. 45]. She was interviewed by detectives [Id. 50], and was present when M.C. was interviewed by them [Id.]. Ms. Savage testified that before the graduation, no one at 211 had said anything about McDermott being involved with students [Id. 31; 33-34]. She also testified that on the date of the graduation , students provided her with information concerning McDermott's involvement with four students, including the plaintiffs and that she had a conversation with J. A. concerning this information [SAVAGE EBT: 26-31] In that conversation he told Savage that "he went to Tara McDermott's house and they were playing truth or dare" and that "he wasn't the first one to go there and there was oral sex involved." [Id: 31:24-25].

DISCUSSION AND CONCLUSIONS

The proponent of a motion for summary judgment must establish by the tender of admissible evidence "that there is no defense to the cause of action or that the cause of action has no merit" (CPLR § 3212 [b]) , thereby eliminating any material issues of fact from the case (Zuckerman v. City of New York, 49 NY2d 557,562, 404 N.E.2d 718 [1980]).

The court will first address the cause of action asserted under the theory ofrespondeatsuperior.

It is well settled that "the doctrine of respondeatsuperior renders a master vicariously liable for a tort committed by his servant while acting within the scope of his employment (Mott v. Consumers' Ice C., 73 NY 543; 2 Mechem, Agency [2d ed], § 1874). " Rivello v. Waldorn, 47 NY2d 297,302 [1979]As the court noted, "[t]hus formulated, the rule may appear deceptively simple but, because it depends largely on the facts and circumstances peculiar to each case, it is more simply said than applied [citation omitted]" Rivello , 303Among the factors to be considered in the assessment of whether conduct falls within the "ambit of the employment" are : "the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance ; and whether the specific act was one that the employer could reasonably have anticipated(see Prosser, Torts [4th ed], § 70,p 461; Restatement, Agency 2d , § 229)." Id.

Upon consideration of these factors and the record herein, it is clear that the defendants have established as a matter of law, that they are not vicariously liable for defendant McDermott's intentional conduct, her criminal actions being unconnected to her duties as a para-professional, and having been committed solely for McDermott's personal reasons .It has been held that "[a]n act of sexual assault by an employee is a clear departure from the scope of employment, committed solely for personal reasons, and [*8]unrelated to the furtherance of the employer's business (see, N.X. v. Cabrini Med.Ctr., 97 NY2d 247, 251 , 765 N.E.2d 844, 739 N.Y.S.2d 348 [2002]; McKay v. Healthcare Underwriters Mut.Ins.Co., 295 AD2d 686, 743 N.Y.S.2d 593 [3d Dept. 2002], lv denied 99 NY2d 503 , 783 N.E.2d 896 [2002]; Mary KK V. Jack LL., 203 AD2d 840, 841, 611 N.Y.S.2d 347 [3d Dept. 1994]." Dia CC v. Ithaca City School Distr., 304 AD2d 955, 758 N.Y.S.2d 197 [2d Dept 2003], app den. 100 NY2d 506, 795 N.E.2d 38 [2003] ; see also, Doe v. Rohan, 17 AD3d 509 , 793 N.Y.S.2d 170 [2d Dept. 2005], app den. 6 NY3d 701, 843 N.E.2d 1155 [2005] ; Kenneth R. v. Roman Catholic Diocese of Brooklyn , 229 AD2d 159,161, 654 N.Y.S.2d 791 [2d Dept . 1997 ], app dism., 91 NY2d 848, 690 N.E.2d 492 [1997] Peter T. v. Children's Village,Inc., 30 AD3d 582, 584 , 819 N.Y.S.2d 44 [2d Dept. 2006] ; Osvaldo D. v. Rector Church Wardens and Vestrymen of the Parish of Trinity Church of New York, 38 AD3d 480, 834 N.Y.S.2d 94 [1st Dept. 2007]).

In opposition, plaintiffs fail to present any evidence to rebut this prima facie showing.

Where, as here , an employer cannot be held vicariously liable for the intentional torts of an employee, "the employer can still be liable under theories of negligent hiring, negligent retention, and negligent supervision ( see, Hall v. Smathers, 240 NY 486; Restatement [Second] of Torts § 317)." Kenneth R. v. Roman Catholic Diocese of Brooklyn , op.cit., at 161 .However, a necessary element of such causes of action is the employer's knowledge , actual or constructive , of the "employee's propensity for the conduct which caused the injury." Id. , citing authority of Park v. New York Cent. & Hudson Riv.R.R. Co., 155 NY 215, ; Gallo v. Dugan, 228 AD2d 376; Mataxas v. North Shore Univ.Hosp.,211 AD2d 762; Detone v. Bullit Courier Serv., 140 AD2d 278; DiCosala v. Kay, 91 NJ 159; Restatement [Second] of Agency § 213,comment d).Specifically, "[r]ecovery on a negligent hiring or retention theory requires a showing that the employer was on notice of the relevant tortious propensities of the wrongdoing employee (see Gomez v. City of New York , 304 AD2d 374 [2003]." Coffey v. City of New York, 49 AD3d 449 , 853 N.Y.S.2d 551 [1st Dept. 2008].

Defendants have established as a matter of law that at the time of McDermott's hiring, she was subject to the same scrutiny and criminal background check as other DOE employees and neither as a result of this process , nor in any other manner, did defendants come into possession of any facts that would serve as the requisite notice to a prudent person of McDermott's propensity for the sexual abuse of minors (compare, T.W. v. City of New York , 286 AD2d 243, 729 N.Y.S.2d 96 [1st Dept. 2001] where employer failed to conduct further investigation of prospective employee who admitted prior conviction when such investigation would have revealed an extensive criminal record that included crimes of violence , see also, Haddock v. City of New York, 106 AD2d 532 , 483 N.Y.S.2d 288 [ st Dept. 1984], affd. 75 NY2d 478, 553 N.E.2d 987 [1990]; Glover v. Augustine, 38 AD3d 364, 832 N.Y.S.2d 184 [1st Dept. 2007]).

In opposition, plaintiffs fail to tender any evidence sufficient to raise a material issue of fact that when hired, her employer knew or should have known of McDermott's propensity for the conduct that caused plaintiffs' injuries.

Likewise, there is nothing in this record to support a finding that during the course of McDermott's employment at 211 defendants were on notice of such conduct. Unlike the circumstances in Doe v. Whitney, 8 AD3d 610, 779 N.Y.S.2d 570 [2d Dept. 2004], [*9]cited as authority by plaintiffs, there is no evidence that McDermott's interaction in school with plaintiffs, or with other students, was in any measure unprofessional.Indeed, both plaintiffs testified of little, if any communication with McDermott prior to the incident.In Doe, the record revealed that the infant plaintiff was singled out routinely by being removed from classes without explanation by the alleged predator teacher, and was often absent from recess, having been kept in class by that teacher. Here, the pre- incident interaction between McDermott and plaintiffs occurred in the pizza parlor after school, and there is no testimony that these encounters were pre-arranged or as testified to by the plaintiffs, that they involved more than the briefest of exchanges with McDermott. These encounters were brought to the attention of the school authorities , and McDermott was admonished that socializing after school was unprofessional, and that it must be terminated. There is no showing that it re-occurred after Ms Cohen spoke to McDermott. While disputed by the testimony of plaintiff J. A. , there is evidence in this record that by either default or design [FN4] , on the date of the incident, McDermott was the party to whom was assigned the task of escorting M.C. to the bus stop.Plaintiffs maintain that by that point , the defendants were on notice of McDermott's propensities. It is submitted that while the school authorities were aware of the "pizza incidents", this knowledge was not notice of a propensity for the sexual abuse of minors. Based upon the foregoing, defendants have met their burden of establishing that they cannot be held liable to plaintiffs for McDermott's assaults under the doctrine of negligent supervison/retention because the evidence establishes that the employer neither knew nor should have known of McDermott's propensity for predatory behavior.

In opposition, plaintiffs fail to raise a material issue of fact to rebut the prima facie showing. Neither McDermott's confession nor her deposition testimony is sufficient for this purpose. [FN5]

In light of the above determination, the court sees no need to consider defendants' arguments concerning entitlement to immunity and the applicability of Education Law § 2551 to the underling facts herein.

Accordingly, defendants' motion for an award of summary judgment dismissing the complaints as asserted against them in both the above-entitled actions is granted.

This constitutes the decision and order of the court.

Dated: January 6, 2009________________________________

Bronx, New YorkHoward H. Sherman

J.S.C. Footnotes

Footnote 1: Plaintiff J.A. also seeks punitive damages and his mother interposes a derivative claim.

Footnote 2: J.A. was born on xx/xx/1987 [ A.. EBT: 9 ] and M. C. was born on xx/xx/ 1988 [C. EBT: 19].

Footnote 3: J. A. also testified that he didn't have any conversations with Rodney or any other students concerning McDermott prior to the incident [EBT: 49: 1-11].

Footnote 4: In her confession. McDermott stated that on the date of the incident, she was asked by a teacher [Mr. Rivers] to escort M.C.to the bus stop .In her examination before trial , she testified that she did not remember any gang threat on the date of the incident [Mc DERMOTT EBT: 56-57].

Footnote 5: The report of the psychologist is not tendered in admissible form.