ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendant Little Flower Children and Family Services of New York which was for summary judgment dismissing the demand for punitive damages against it, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof denying that branch of the motion of the defendants Little Flower Union Free School District and Board of Education of Little Flower Union Free School District which was for summary judgment dismissing so much of the cause of action alleging negligent hiring, supervision, monitoring, retention, and training as was based on the alleged negligent hiring, supervision, monitoring, retention, and training of the defendant Barry J. Wiggins insofar as asserted against them, and substituting therefor a provision granting that branch of the motion; as so [*2]modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendants appearing separately and filing separate briefs.
In 2021, the plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against the defendant Little Flower Children and Family Services of New York (hereinafter the agency) and the defendants Little Flower Union Free School District and Board of Education of Little Flower Union Free School District (hereinafter together the District defendants), among others, asserting causes of action, inter alia, alleging negligence; negligent hiring, supervision, monitoring, retention, and training; and failure to report cases of suspected child abuse as required by Social Services Law § 413. The plaintiff alleged that in 1987, when he was 11 years old, he was placed into the agency's custody for foster care and resided at its Wading River Campus. While a resident at the Wading River Campus, the plaintiff attended the Little Flower School, which was located on campus but operated by the District defendants. The
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plaintiff alleged that he was sexually abused while residing at the Wading River Campus from 1988 through 1992 by the defendant Barry J. Wiggins, who was employed by the agency and tasked with, among other things, caring for and supervising the foster children at the Wading River Campus, and that the agency and the District defendants negligently failed to prevent the sexual abuse.
The agency and the District defendants separately moved for summary judgment dismissing the amended complaint insofar as asserted against each of them. In an order dated March 25, 2025, the Supreme Court, inter alia, denied the agency's motion and those branches of the District defendants' motion which were for summary judgment dismissing the causes of action alleging negligence and failure to report cases of suspected child abuse as required by Social Services Law § 413 insofar as asserted against them and so much of the cause of action alleging negligent hiring, supervision, monitoring, retention, and training as was based on the alleged negligent hiring, supervision, monitoring, retention, and training of Wiggins insofar as asserted against them. The agency and the District defendants separately appeal.
"Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business, the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee" (Riordan v Archdiocese of N.Y., 247 AD3d 1074, 1075 [internal quotation marks omitted]; see MCVAWCD-DOE v Columbus Ave. Elementary Sch., 225 AD3d 845,
846). To establish a cause of action based on negligent hiring, retention, or supervision, the plaintiff must show that the employer knew or should have known of the employee's propensity for the conduct that caused the injury (see Riordan v Archdiocese of N.Y., 247 AD3d at 1075; MCVAWCD-DOE v Columbus Ave. Elementary Sch., 225 AD3d at 846 ).
"A school owes a duty to adequately supervise the students in its care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Riordan v Archdiocese of N.Y., 247 AD3d at 1075-1076 [alteration and internal quotation marks omitted]; see BCVAWCH-Doe v Roman Catholic Archdiocese of N.Y., 246 AD3d 696, 697). This duty is "coextensive with and concomitant to [the school's] physical custody of and control over the child, and therefore, when that custody ceases because the child has passed out of the orbit of [the school's] authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases" (Levy v City of New York, 227 AD3d 975, 976 [alteration and internal quotation marks omitted]; see Hauburger v McMane, 211 AD3d 715, 716). Although a school has no duty to prevent injury to children released in a safe and anticipated manner, the school breaches a duty when it releases a child without further supervision into a foreseeably hazardous setting it had a hand in creating (see Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 672; Levy v City of New York, 227 AD3d at 976-977). "Where the complaint alleges negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must allege that the school knew or should have known of the individual's propensity to engage in such conduct, such that the individual's acts could be anticipated or were foreseeable" (Riordan v Archdiocese of N.Y., 247 AD3d at 1076 [internal quotation marks omitted]; see Sayegh v City of Yonkers, 228 AD3d 690, 691). The adequacy of a school's supervision of its students is generally [*3]a question left to the trier of fact to resolve (see Riordan v Archdiocese of N.Y., 247 AD3d at 1076; MCVAWCD-DOE v Columbus Ave. Elementary Sch., 225 AD3d at 847).
The Supreme Court properly denied that branch of the agency's motion which was for summary judgment dismissing the cause of action alleging negligent hiring, supervision, monitoring, retention, and training insofar as asserted against it. The agency failed to establish, prima facie, that it did not have actual or constructive notice of Wiggins's alleged abusive propensities prior to hiring him and failed to eliminate all triable issues of fact as to whether it was aware of Wiggins's alleged abuse and negligent in its hiring, supervision, and retention of Wiggins (see Riordan v Archdiocese of N.Y., 247 AD3d at 1076; BCVAWCH-Doe v Roman Catholic Archdiocese of N.Y., 246 AD3d at 698; Kastel v Patchogue- Medford Union Free Sch. Dist., 234 AD3d 741, 744).
However, the Supreme Court should have granted that branch of the District defendants' motion which was for summary judgment dismissing so much of the cause of action alleging negligent hiring, supervision, monitoring, retention, and training as was based on the alleged negligent hiring, supervision, monitoring, retention, and training of Wiggins insofar as asserted against them. The District defendants established, prima facie, that they did not employ Wiggins, and the plaintiff failed to raise a triable issue of fact in opposition (see Davila v Orange County, 229 AD3d 500,
503).
The Supreme Court properly denied that branch of the District defendants' motion which was for summary judgment dismissing the cause of action alleging negligence insofar as asserted against them. The District defendants failed to eliminate all triable issues of fact as to whether they had actual or constructive notice of Wiggins's abusive propensities or of his abuse of the plaintiff, and thus failed to establish, prima facie, that they did not release the plaintiff without adequate supervision into a foreseeably hazardous setting they had a hand in creating (see Ernest v Red Cr. Cent. School Dist., 93 NY2d at 672; Levy v City of New York, 227 AD3d at 976-977).
The Supreme Court also properly denied those branches of the separate motions of the agency and the District defendants which were for summary judgment dismissing the cause of action alleging failure to report cases of suspected child abuse as required by Social Services Law § 413 insofar as asserted against each of them. The agency and the District defendants failed to establish, prima facie, that they did not knowingly or willfully fail to report suspected child abuse and failed to eliminate all triable issues of fact as to whether they had notice of Wiggins's abuse of the plaintiff (see id. §§ 413, 420[2]; Brown v Westchester County, 234 AD3d 812, 815; Diana Michelle G. v Bedford Cent. Sch. Dist., 104 AD3d 805, 805).
The Supreme Court should have granted that branch of the agency's motion which was for summary judgment dismissing the demand for punitive damages against it. "Punitive damages in actions involving negligent hiring, retention, or supervision generally require conduct evincing a high degree of moral culpability, so flagrant as to transcend simple carelessness, or which constitutes willful or wanton negligence or recklessness so as to evince a conscious disregard for the rights of others" (Pisula v Roman Catholic Archdiocese of N.Y., 201 AD3d 88, 102). Generally, allegations of mere negligence do not rise to the level of moral culpability necessary to support a claim for
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punitive damages (see Redd v Brooklyn Friends Sch., 238 AD3d 1181, 1185; Moskowitz v Masliansky, 198 AD3d 637,
640). Here, the court should have awarded summary judgment dismissing the demand for punitive damages against the agency because the plaintiff's allegations amounted to nothing more than allegations of mere negligence and did not rise to the level of moral culpability necessary to support a claim for punitive damages (see Redd v Brooklyn Friends Sch., 238 AD3d at 1185; Moskowitz v Masliansky, 198 AD3d at 640-641).
The parties' remaining contentions either are without merit or need not be reached in light of our determination. DILLON, J.P., CHRISTOPHER, LANDICINO and HOM, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
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