Pinks v Turnbull

[*1] Pinks v Turnbull 2009 NY Slip Op 52594(U) [25 Misc 3d 1245(A)] Decided on December 11, 2009 Supreme Court, New York County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2009
Supreme Court, New York County

David Pinks, Plaintiff,

against

Horace Turnbull, As The Executor of the Estate of WALTER TURNBULL, HORACE TURNBULL, Individually, JOHN KING, FRANK JONES, THE BOYS CHOIR OF HARLEM, INC., THE NEW YORK CITY DEPARTMENT OF EDUCATION, THE NEW YORK CITY BOARD OF EDUCATION, THE CITY OF NEW YORK, JOHN DOE, JANE DOE, teachers, supervisors, and employees of Choir Academy of Harlem, whose identities are unknown, Defendants.



100228/04



Plaintiff DAVID PINKS:

Michael G. Dowd, Esq.

Law Offices of Michael G. Dowd

112 Madison Avenue, 3rd Floor

New York, New York 10018

Defendants HORACE TURNBULL, as Executor of the Estate of WALTER TURNBULL, HORACE TURNBULL, and BOYS CHOIR OF HARLEM, INC.:

Mound Cotton Wollan & Greengrass

Kenneth M. Labbate

David A. Nelson

One Battery Park Plaza

New York, New York 10004

Defendants NEW YORK CITY BOARD OF EDUCATION, DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and JOHN KING:

Carl J. Schaerf, Esq.

Schnader Harrison Segal & Lewis

140 Broadway, Suite 3100

New York, New York 10005 Defendant CITY OF NEW YORK:

Alison E. Estess, Esq.

New York City Law Department

Corporation Counsel

100 Church Street

New York, New York 10007

Karen Smith, J.

The preying on children by sexual predators within institutions, both governmental and private, established for the purposes of serving these same children, is abhorrent. The effects of such actions on the children, their families, the institutions and the society as a whole are felt for generations. The instant case involves such allegations.

Plaintiff maintains that from approximately June 1998 through the summer of 2001, while he was a member of defendant Boys Choir of Harlem ("BCH"), attending the Choir Academy of Harlem ("CAH"), an academic institution run by defendant New York City Board of Education ("BOE") and designed specifically to provide academic training for the boys of BCH, he was sexually molested by a twenty-year employee of BCH, a guidance counselor, defendant Frank Jones. In addition, plaintiff claims that Walter Turnbull physically assaulted him sometime in this period.

In his complaint, plaintiff alleges the following causes of action:

1st Cause of Action: Sexual Abuse and Battery;

2nd Cause of Action: Intentional Affliction of Emotional Distress;

3rd Cause of Action: Negligent Failure to Supervise;

4th Cause of Action: Negligent Failure to Provide a Safe and Secure Environment;

5th Cause of Action: Negligent Retention of Defendant Frank Jones (against BCH only);

6th Cause of Action: Negligent Failure to Investigate Child Abuse;

7th Cause of Action: Failure to Report Child Abuse;

8th Cause of Action: Failure to Train.

With the Court's permission, by decision and order issued December 11, 2008, the plaintiff amended his complaint to include a claim that he is entitled to the exception to the limited liability protection of CPLR § 1601 (sic)[FN1] and could seek punitive damages as an additional remedy.

All of the named defendants, except Frank Jones, now move for summary judgment [*2]pursuant to CPLR §3212 [FN2] dismissing all claims and cross-claims, including the amended claim. While there is an extensive procedural history to these motions,[FN3] the history has little impact on the within decision and will thus not be recited herein.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to summary judgment as a matter of law, tendering sufficient evidence in an admissible form to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp.. 68 NY2d 320 [1987]). Once the movant has made such a showing, the burden then shifts to the opposing party to produce evidence in admissible form sufficient to establish the existence of any material issues of fact requiring a trial of the action (Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Based on the submissions by the parties, the transcripts of depositions of the parties involved, documents, affidavits, expert and otherwise, and, for the reasons stated below, the Court concludes that, 1) defendant City of New York has met its burden of showing its entitlement to summary judgment as a matter of law dismissing the complaint, amended complaint, all cross-claims asserted against it; 2) defendants The Board of Education of the City of New York,[FN4]and John King, have met their burden of proving their entitlement to summary judgment as a matter of law dismissing all but the 7th Cause of Action in the complaint and amended complaint, dismissing all cross-claims against them, the portion of the amended complaint seeking plaintiff's entitlement to the exception to the limited liability protection of [*3]CPLR § 1601, and plaintiff's request for punitive damages; 3) defendants Boys Choir of Harlem and Horace Turnbull, as Executor of the Estate of Walter Turnbull and individually, have made a prima facie showing of their entitlement to summary judgment as a matter of law solely to the extent of dismissing a portion of all eight Causes of Action, as provided more fully below.

The Undisputed Facts

For the most part, the facts in this case are not in dispute. Where there are disputes, if any, they will be clearly identified.

BCH is an organization established by Walter and Horace Turnbull to provide opportunities and guidance to young boys at risk. As part of its mission it has operated a choir and musical arts program for its members, a choir which has performed all over the world. In 1993 the Turnbulls obtained permission from the BOE to provide public school acadamic training for its young members for the 4th through the 12th grades in a specially designed school, called the Choir Academy of Harlem ("CAH"), which provided flexibilty in the academic program to meet the demands of BCH's program. Walter Turnbull served as President and Horace Turnbull served as the Vice President of BCH. The school was maintained in a BOE facility, staffed with BOE teachers and administrators to run the academic program and was overseen by the division of Alternative Adult and Continuing Education Schools and Programs of the BOE. Defendant John King was the Acting Principal and an employee of defendant BOE at the time of the events which are the subject of this lawsuit. After school, during the summers, and on tour, the BCH ran the music program at the BOE facility which housed CAH. BCH's program included guidance counseling services, provided by defendant Frank Jones ("Jones"), an employee of BCH. Jones, who was hired in 1980 by BCH, met with children at the school, after class hours, and during the summer at a summer institute run by BCH at Skidmore College. According to the agreement between BOE and BCH which established the CAH, BCH employees, like employees from the BOE, were obligated to report any and all signs of abuse of children, including sexual abuse. BOE provided training in reporting abuse of children to its employees and the NYC Department of Youth Services provided the same training to BCH's employees. The BOE agreed to perform fingerprint background checks on all of BCH's employees. While it appears that BOE did not perform such tests on all of the BCH employees, there is no dispute that BOE performed a fingerprint check on defendant Jones in 1994 and discovered no prior record or anything else of any suspicion to put them or BCH on notice of any of Jones's proclivities as a sexual predator.

Plaintiff enrolled in BCH and CAH in September 1995 as a pre-teen. Beginning in June 1998, Jones is alleged to have begun, what is referred to in professional psychological child sexual abuse circles as the "grooming" of plaintiff. As part of this "grooming process," Jones allegedly bought plaintiff expensive gifts, spent time alone with him in his office, gave plaintiff keys to his apartment and invited plaintiff there, took plaintiff out to dinner and began to kiss and hug him. Some of this activity is alleged to have occurred in Jones's office at CAH, mostly after school hours, though on perhaps a couple of occasions during school hours. The majority of these incidents occurred at Jones's apartment, off campus, or at summer camp at the Skidmore campus. The overt sexual activity commenced in 2000 and took place at Jones's apartment and during summer camp at the summer institute run by BCH at the Skidmore campus, but ended in the [*4]summer of 2000. There is no allegation or evidence to suggest that any persons working at CAH, whether employed by BCH or BOE ever witnessed any of these acts, knew about the gifts or knew that plaintiff was meeting Jones in his apartment prior to the fall of 2000.

Plaintiff did not tell anyone about Jones's actions towards him until the fall of 2000 when he told Timothy Battle, the President of BCH's alumni organization and the head of a band run by BCH of which plaintiff was a member.[FN5] At about this same time, plaintiff told George Reyes, Battle's busines partner and an alumnus of BCH, about Jones's abuse, and asked him to ask BCH to keep Jones away from him. Prior to telling Battle and Reyes in the fall of 2000, all physical sexual contact between plaintiff and Jones had ceased.

No one told the Turnbulls about the abuse or anything else out of the ordinary going on between Jones and plaintiff until June 2001, when Battle and Reyes informed Horace Turnbull of plaintiff's allegations and when plaintiff and his mother met with Horace Turnbull. Turnbull allegedly made some inquiries by interviewing a few people including Jones and the plaintiff. Not believing the allegations, in part because there had never been a complaint about Jones in the prior twenty-one years Jones had worked for BCH, Horace Turnbull did nothing. He did not suspend Jones, put him on leave, report Jones to the BOE or other governmental authorities, or insulate plaintiff from Jones. In fact, Turnbull sent plaintiff to attend the 2001 summer institute at Skidmore, at Jones's urging. In September 2001, plaintiff asked CAH Acting Principal John King to be transferred out of CAH, which was done by the end of that month. Though plaintiff admits that the physical/sexual abuse stopped in the summer of 2000, he maintains that the ongoing contact with Jones until his transfer in September 2001, was a continuation of the emotional abuse stemming from his earlier encounters with Jones. There is no allegation that either King or anyone else at CAH who was employed by BOE was ever told about the sexual abuse by Jones until September 2001, when plaintiff asked to be transferred out of CAH. Plaintiff does allege, however, that sometime during his attendance at CAH, Walter Turnbull and two other persons connected with BCH hit him as part of corporal punishment, which Turnbull denies.

Subsequent to plaintiff's transfer from the program, Jones was arrested and tried on the basis of his conduct towards plaintiff. A jury found him guilty of various criminal charges, including child endangerment. Jones was sentenced in November 2002 to two years in prison.

Plaintiff's Evidence

Although there is no allegation that either the Turnbulls, King or anyone else employed by BOE at CAH was ever told about the sexual abuse by Jones until after the physical/sexual abuse had stopped, plaintiff takes the position that both BCH and its staff, including the Turnbulls, and BOE employees knew or should have known of Jones's behavior towards plaintiff on the basis of, 1) alleged discussions Battle had with another student, Charles Greg, prior to the incidents with plaintiff, that Jones had engaged in this behavior before; 2) Battle's statement that he had witnessed Jones giving other students back rubs in previous years (although Battle never [*5]mentioned this to anyone at the time); 3) plaintiff's deposition testimony that the other BCH students teased him in front of an unnamed history teacher employed at CAH by BOE about being Jones's "bitch"; 4) plaintiff's deposition testimony that a CAH French teacher employed by BOE suggested to plaintiff that he was spending too much time in Jones's office; 5) a report by an investigatory body of the City that there is a high incidence of sexual abuse by non-BOE employees in BOE buildings; 6) the failure of the BOE to perform fingerprint background checks of another employee of BCH, unrelated to Jones or this action, who was discovered to have been a sexual offender; 7) an atmosphere of violence, through the use of corporal punishment, toward children at BCH; 8) alleged rumors over the years of sexual abuse of children at BCH; 9) a comment allegedly made to plaintiff by a BCH employee, Maestro Warren Wilson, unreported to anyone, "Assume the position, you know how you like it"; and 10) the invocation of the attorney/client privilege by BCH's attorney when asked about other children who may have been sexually abused by Jones, which was allowed by the Court as it involved discussions between the attorney of the Board and the Board itself, after this lawsuit was filed.

Plaintiff, in opposition to the motions, submits the expert report of Charol Shakeshaft, who holds a Ph.D. degree in Educational Administration at Virginia Commonwealth University, amongst other expert qualifications not in question here, who based her evaluation of the case on the pleadings herein, the parties' deposition transcripts, Regulation A-412 of the Chancellor of the BOE, and the Report by the Special Commissioner of Investigation for the New York City School District, dated December 23, 2003.

Motions by BCH, Horace Turnbull as Executor of the Estate of Walter Turnbull, and Individually (Motion Sequence Nos. 017 and 020 [previously 011 and 015])

The BCH defendants have met their prima facie burden of showing their entitlement to dismissal of the 1st Cause of Action for sexual abuse and battery, as it relates to Frank Jones only. Plaintiff has not presented any evidence that the Turnbulls personally engaged in sexual abuse and battery of the plaintiff, nor that BCH is responsible pursuant to a theory of respondeat superior for the acts of its employee Frank Jones, which were clearly outside the scope of his employment (N.X. v Cabrini Hospital Center, 97 NY2d 247 [2002]; Kenneth R. V Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2d Dept 1997], lv den 91 NY2d 848 [1997]). However, the BCH defendants are not entitled to dismissal of the portion of the 1st Cause of Action which alleges that the administrators of BCH hit plaintiff as part of their corporal punishment while he was in their program, as there are disputed questions of fact.

As for the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Causes of Action, the BCH have met their prima facie burden of showing their entitlement to dismissal of all claims relating to Jones's sexual abuse of plaintiff, for lack of either actual or constructive notice prior to either the fall of 2000, when plaintiff told Timothy Battle or June 2001, when Horace Turnbull was first informed of the abuse. Except for the statements made by plaintiff to Battle in the fall of 2000 and to Horace Turnbull in June 2001about Jones's sexual abuse of plaintiff, none of plaintiff's "proof," raise any factual issues as to whether defendants knew (had actual notice), or should have known (had constructive notice) of Jones's sexual abuse of plaintiff or Jones's proclivities. All of plaintiff's evidence of conditions that, according to plaintiff, "should have put defendants on notice of Jones's acts or proclivities" is either hearsay, speculation, irrelevant, or contradicted by the same [*6]witness cited to support such evidence. Such "rumors, guess work, musings in hindsight, speculation or intuition" does not constitute notice (Steinborn v. Himmel, 9 AD3d 531, 534 (3rd Dept 2004). Battle's statements about what another BCH student, Charles Greg, told him regarding Jones's conduct towards Greg, plaintiff's testimony about his French teacher's comments, the teasing by other students, statements by the unnamed history teacher, are all hearsay and fail to counter the unequivocal statements by plaintiff or Timothy Battle or George Reyes that none of these students and teachers were told by them about the sexual abuse by Jones. While hearsay, may, under some circumstances and for limited purposes, be considered on a motion for summary judgment, it may never at any stage in the proceedings be considered as evidence to prove a material issue in a case. The evidence of what other students or teachers may have said may be considered as to plaintiff's state of mind and the suffering it caused him. It cannot, however, be considered on the crucial liability issue of whether it can be inferred that BOE and BCH had prior notice of Jones's acts and/or proclivities so as to stop those actions.

Whatever Battle's or Reyes's or Xavier Smith's (another BCH alumni with no professional connection to BCH) suspicions were about Jones or other BCH employees, they each testified clearly that none of them had ever told the Turnbulls about those suspicions in relation to any student at BCH, nor were BOE employees present when these discussions went on, and none testified that BOE employees had any knowledge of the abuse. Battle even stated that he was totally surprised when plaintiff told him about his accusations against Jones. Neither Reyes nor Smith were employees of or employed by BCH and, as such, were not obligated to report any sexual or other abuse to BOE.

The same, however, is not true of Horace Turnbull and Battle. Even if Battle was an independent contractor employed by BCH, knowledge on his part of the allegations of sexual abuse in the fall of 2000 may be considered to be notice on BCH depending on the terms of Battle's employment with BCH, as such there may have been a duty to report to the authorities as of the fall of 2000 when Battle was first told about the allegations. Certainly by June 2001, when it is undisputed that Horace Turnbull knew of the accusations, he had a responsibility to report, investigate and to protect plaintiff. Instead of handing over the information to persons who could have made the appropriate assessment, Turnbull drew his own conclusion as to the veracity of plaintiff's charges and did nothing. And while it was conceded that the sexual/physical abuse had stopped a year before Turnbull was told, the physical presence of this sexual predator was a constant reminder of what had taken place and certainly provided no assurance that it would not take place again.

Plaintiff's expert report supports this conclusion. While Shakeshaft cites to no evidence that the BCH defendants knew or should have known that Jones was a danger to any of the children, let alone to plaintiff in particular,[FN6] Shakeshaft does conclude that once plaintiff reported the abuse - either to Battle or Horace Turnbull - the BCH defendants' response was inconsistent with the applicable Chancellor regulations. Regulation of the Chancellor A-412, as cited by [*7]Shakeshaft, required the BCH defendants to report the sexual abuse of plaintiff to specific individuals or entities and requires the principal to contact the parent(s), the police and file and incident report within 24 hours. It also specifically prohibits investigation by the school officials in charge. There does not appear to be any dispute that none of the provisions of A-412 were complied with in this case. Shakeshaft's analysis does not support the conclusion, however, that the BCH's conduct or policies prior to receiving notice from plaintiff was contrary to the duty imposed on it by law. The Court also notes that, while Shakeshaft opines that Reyes, through his "affiliation" with BCH, had a duty to report the abuse, as the Court notes, infra, Reyes was not employed by BCH and, therefore, had no duty to plaintiff under the law.

Under these circumstances, while there is no dispute that BCH was put on notice of the abuse, material issues of fact remain regarding when notice can be imputed to BCH - in the fall of 2000 or in June 2001. In addition, there remain material issues of fact regarding whether, 1) BCH's failure to take any action to protect plaintiff from the presence of his tormentor after it had notice, either in the fall of 2000 or June 2001, constitutes "conduct . . . so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Murphy v Home Prod. Corp., 58 NY2d 293, 303 [1983]), so as to constitute an intentional infliction of emotional distress (2nd Cause of Action), or negligent failure to supervise (3rd Cause of Action), or failure to provide a safe and secure environment (4th Cause of Action); 2) whether BCH's failure to take any disciplinary or employment action against Jones after it received notice of the abuse, constitutes negligent retention of Jones (5th Cause of Action); 3) whether the manner in which Horace Turnbull conducted his investigation of Jones's sexual abuse of plaintiff was negligent (6th Cause of Action); 4) whether BCH's failure to report Jones's sexual abuse of plaintiff after it was on notice of it constitutes a failure to report child abuse and is further evidence of BCH's failure to properly train its employees (8th Cause of Action); and 5) whether these acts were so reckless as to deprive the BCH defendants of their entitlement to the limited liability protection of CPLR § 1601.

Accordingly, the BCH defendants' motions to dismiss the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Causes of Action and plaintiff's entitlement to the exception to the limited liability protection of CPLR § 1601, are granted in part and denied in part, as provided herein. The portion of the BCH defendants' motion seeking dismissal of punitive damages is denied, as the BCH defendants have failed to make a prima facie showing that their conduct after discovering that Jones was abusing plaintiff could not be found by a trier of fact to have constituted "intentional or deliberate wrongdoing, aggravating or outrageous circumstances, a fraudulent or evil motive, or a conscious act that willfully and wantonly" disregarded the rights of plaintiff. (Don Buchwald & Assocs. v Rich, 281 AD2d 329, 330 [1st Dept 2001]).

The portion of BCH's motion seeking dismissal of BOE's cross-claims for contribution and indemnification is denied without prejudice to resubmit at the time of trial after a determination is made as to which party or parties, if any, are liable for plaintiff's injuries. However, because the Estate and Horace Turnbull are not parties to the Agreement between BOE and BCH, all cross-claims by BOE for contractual indemnification against them personally, are dismissed.

[*8]Motions by The City of New York (Motion Sequence Nos. 016 and 019 [previously

010 and 014])

The only basis for holding the City liable for Jones's acts is that the Board of Education is required to provide a safe environment for its students and the City is responsible for the acts of the Board of Education. As the City correctly points out, however, the City and the Board/ Department of Education of the City of New York were separate and legally distinct entities when the events involved in this lawsuit occurred (New York State Education Law § 2552; Corzino v City of New York ,56 AD3d 370 [1st Dept 2008]; Perez v City of New York, 41 AD3d 378, 379 [1st Dept 2007]; lv. den. 2008]). The 2002 Education Law reforms, which substituted the Department of Education for the Board of Education and made it accountable directly to the Mayor's Office, did not alter the allocation of responsibility for tort claims (Corzino v City of New York, supra.). Nor can liability be imposed against the City on the basis that the City owes plaintiff protection to shield him from Frank Jones's criminal acts, as "[i]t is well established that the provision of security against attacks from third persons is a governmental function and no liability arises from the performance of such a function absent a showing of a special duty of protection . . . ," (Marilyn S. v City of New York, 73 NY2d 910 [1989]). Nor does a municipality bear liability for the negligent performance by its agents of governmental function (such as security), absent the existence of a special relationship between the injured party and the municipality" (Kircher v City of Jamestown, 74 NY2d 251 [1987]). Plaintiffs have not alleged nor proved a special relationship between the plaintiff and the City of New York so as to impose a duty on the City to insure plaintiff's safety. "[T]he allocation of police resources to protection from criminal wrongdoing is a legislative-executive decision for which there is no liability," (Weiner v Metropolitan Transportation Authority, 55 NY2d 175, 181 [1982]). Accordingly, all claims against defendant City of New York based solely on the claims against the Board/Department of Education (1st, 2nd, 3rd, 4th, 6th, and 7th Causes of Action) are dismissed.[FN7]

Plaintiff's claims against the City based on the allegation that the Department of Youth Services, a City agency, failed to properly train the BCH employees (8th Cause of Action), is dismissed for failure by plaintiff to submit any proof tending to show that there are disputed facts requiring a trial. The requirement to report abuse is not the same as the requirement to discover abuse. Plaintiff cites no regulation requiring any City agency to provide training to non-City or to City personnel on discovering sexual abuse. Nor is there any allegation that defendant Horace Turnbull's failure and Timothy Battle's failure (if it is found that he had such a duty) to report the sexual abuse by Jones was caused by the inadequacy of their training by the Department of Juvenile Justice. If plaintiff's attack is on the adequacy of the training program itself, the City is shielded by governmental immunity (Rodriquez v City of New York, 189 AD2d 166, 173 [1st Dept 1993]).

In addition, even if the City was responsible for the acts or failure to act on the part of the Board of Education, there is no evidence of any breach. In order to have a breach of any duty, the plaintiff must demonstrate prior knowledge or notice of individual propensity of defendant Jones [*9]to commit such acts (see, Garcia v. City of New York, 222 AD2d 192, 195-196 [1st Dept 1996], which he has not done. Nor is the City subject to a claim for negligent hiring. As shown above, plaintiff has failed to submit any evidence in an admissible form to show that any employee of the BOE knew or should have known of any threat posed by Jones prior to his hiring.

Plaintiff cannot sustain its claims in the amended complaint to entitlement to the exception to the limited liability protection of CPLR § 1601, as there is no evidence that defendant City acted with reckless disregard for plaintiff's safety. Nor is plaintiff entitled to punitive damages, which requires a showing of "intentional or deliberate wrongdoing, aggravating or outrageous circumstances, a fraudulent or evil motive, or a conscious act that willfully and wantonly" disregarded the rights of plaintiff, (Don Buchwald & Assocs. v Rich, 281 AD2d 329, 330 [1st Dept 2001]), of which there is no proof in the instant case. More importantly, it is horn book law that punitive damages are not recoverable against a municipality (Krohn v. New York City Police Department, 2 NY3d 329 [2004])

For all of the above reasons, all claims and all cross-claims against defendant City of New York in the complaint and amended complaint are dismissed in their entirety.

Motion by BOE and John King (Motion Sequence No. 018 [previously 012])

Defendants BOE and King have made out a prima facie case for entitlement to summary judgment as a matter of law dismissing the 1st, 2nd, 4th, 6th, 8th Causes of Action and plaintiff's claimed entitlement to the exception to the limited liability protection of CPLR § 1601, and to his claim for punitive damages.

As to the 1st Cause of Action, plaintiff has failed to submit any evidence in admissible form that either BOE or any of its employees, including King, engaged in sexual abuse and battery of the plaintiff. In addition, Jones was not employed by BOE or King, and even if he were, Jones's acts were clearly outside the scope of his employment.

As for the 2nd Cause of Action, again, Jones was an employee of BOE or King and plaintiff has failed to submit any evidence in admissible form that BOE or King had notice of any of Jones's acts or proclivities prior to September 2001, when plaintiff asked King for a transfer and told him of the abuse he suffered at the hands of Jones.

As for the 3rd Cause of Action for negligent supervision, "School Authorities have a duty of care to students on school premises or when students are otherwise in the control of school personnel" (C.M. v City of New York, 9 Misc 3d 251, 253 [Sup Ct. NY County 2005]). Additionally, the "Board of Education has a duty, arising from the fact of its physical custody over the students, to exercise the same degree of care and supervision which a reasonably prudent parent would employ in the given circumstances" (Logan v. City of New York, 148 AD2d 167, 168 [1st Dept 1989]). The BOE contends that it is entitled to dismissal because much of the actual physical touching of plaintiff occurred at BCH's summer institute located on the Skidmore campus or in Jones's apartment, not on the premises of CAH. However, plaintiff makes very clear in his testimony that Jones acted inappropriately and touched him on school grounds. Therefore, BOE's contention that because none of the abuse occurred on school grounds, they had no duty to plaintiff is unavailing. Additionally, the "Use Agreement" ("the Agreement") between BCH and BOE gives BCH use of several rooms from 9:00 a.m. to 3:00 pm "on all days [*10]that school is on regular session." The Agreement further provides that BCH has administrative control of the space under the general supervision of the Principal of the school, and that no one will be allowed to enter or remain on the school premises unless the Custodian or Principal, or an authorized representative is on the school premises. Although it is uncontested that Jones was a BCH employee and not an employee of the BOE, the terms of the Agreement confers a duty on BOE for plaintiff's safety while on school premises. Plaintiff's negligent supervision claim requires notice with respect to the "special danger of violence" posed by Jones. (Mirand v City of New York, 190 AD2d 282, 289 [1st Dept 1993], aff'd 84 NY2d 44 [1994]). As plaintiff has failed to submit any evidence in an admissible form to support the allegations that BOE and or employees, including King, knew or should have known of Jones's sexual abuse of plaintiff or of Jones's proclivities prior to September 2001, the 3rd Cause of Action against BOE and King must be dismissed.

The lack of actual or constructive notice also defeats the 4th and 6th Causes of Action, requiring their dismissal.

As for the 7th Cause of Action, defendants BOE and King allege that the sexual abuse had stopped one year prior to September 2001. Plaintiff maintains that the abuse continued through the summer of 2001 because plaintiff was forced to remain in defendant Jones's presence. While the lack of notice requires dismissal of all claims as against the BOE and King prior to September 2001, as for any liability post-September 2001, it is unclear if, 1) King or any other employee reported the allegations to any authorities after September 2001;and 2) what, if any, causal connection between their failure to report the abuse at the point that plaintiff had no further contact with Jones and plaintiff's damages. Having failed to make a prima facie showing as to their entitlement to summary judgment dismissing the 7th Cause of Action, that portion of their motion is denied.

As for the 8th Cause of Action, plaintiff has failed to submit any evidence to suggest that BOE had assumed the obligation or was otherwise required to train BCH's employees on anything other than reporting abuse or that there was a causal connection between defendants' failure to train BCH's employees and the abuse by Jones. Plaintiff's expert, Shakeshaft, while acknowledging that she was not provided with any documents or evidence regarding what actual training was provided, opines that "if appropriate training had been regularly undertaken in the school, all personnel . . . would have understood their legal requirement to report the allegations against Mr. Jones." This conclusion is not based on the facts of the case or the evidence presented, but Shakeshaft's speculations about what training was provided. Shakeshaft also states that with "appropriate training," Battle would have been able to identify the abuse before Jones even reported it. Even assuming that this conclusion is true, neither plaintiff nor Shakeshaft point to any legal obligation on the part of BOE to train all personnel to identify and discover sexual abuse by fellow educators, and further ignores that Battle was not an employee or in any other way connected to BOE