Opinion
14618, 350325/10
03-24-2015
Jane DOE, an Infant by Her Mother and Natural Guardian Julitte Doe, et al., Plaintiffs–Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Respondent, Bill Agosto, Defendant.
Lynn Law Firm, LLP, Syracuse (Patricia A. Lynn–Ford of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Dona B. Morris of counsel), for respondent.
Lynn Law Firm, LLP, Syracuse (Patricia A. Lynn–Ford of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Dona B. Morris of counsel), for respondent.
TOM, J.P., RENWICK, DeGRASSE, MANZANET–DANIELS, CLARK, JJ.
Opinion
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered May 21, 2014, which granted defendant New York City Department of Education's (DOE) motion for summary judgment dismissing the complaint as against it with prejudice, unanimously affirmed, without costs.
It is undisputed that defendant Agosto, a substitute teacher at another school and the infant plaintiff's track coach, had unlawful sexual intercourse with the infant plaintiff at a motel after school hours. The court correctly dismissed the vicarious liability claim against DOE, because Agosto's conduct was not in furtherance of school business and was outside the scope of his employment (see Acosta–Rodriguez v. City of New York, 77 A.D.3d 503, 504, 909 N.Y.S.2d 712 [1st Dept.2010] ; see also N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 [2002] ).
The court correctly dismissed the negligent supervision claim, because the misconduct occurred after school hours and off school premises (see Stephenson v. City of New York, 19 N.Y.3d 1031, 1034, 954 N.Y.S.2d 782, 978 N.E.2d 1251 [2012] ). Further, plaintiffs failed to present evidence sufficient to raise a triable issue of fact that school authorities had specific knowledge or notice of Agosto's misconduct or that his misconduct could reasonably have been anticipated (see Brandy B. v. Eden Cent. School Dist., 15 N.Y.3d 297, 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 [2010] ). Agosto had no prior criminal record, and there were no prior complaints about him other than the plaintiff mother's alleged complaints about the end time of practices. Although there was evidence that Agosto drove the infant plaintiff and others home from school, in violation of a Chancellor regulation, this is insufficient to raise an issue of fact as to whether DOE had actual or constructive notice of sexual misconduct (see Osvaldo D. v. Rector Church Wardens Vestrymen of Parish of Trinity Church of N.Y., 38 A.D.3d 480, 480–481, 834 N.Y.S.2d 94 [1st Dept.2007] ; see also Brandy, 15 N.Y.3d at 302–303, 907 N.Y.S.2d 735, 934 N.E.2d 304 ). For these reasons, the court also correctly dismissed plaintiffs' negligent hiring and retention claims (see id. ).