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IN THIS CHILD VICTIMS ACT CASE, THE SCHOOL DEFENDANTS DID NOT ELIMINATE QUESTIONS OF FACT ABOUT CONSTRUCTIVE NOTICE OF THE ALLEGED SEXUAL ABUSE OF PLAINTFF STUDENT BY TWO TEACHERS; THE FREQUENCY OF THE ALLEGED ABUSE RAISED QUESTIONS ABOUT NOTICE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the school defendants did not eliminate questions of fact about constructive notice of the sexual abuse of plaintiff student by two teachers. The relevant law is described in detail and should be consulted as a complete overview of the relevant issues:

… [T]o the extent the complaint is premised on the conduct of the music teacher, the defendants failed to establish, prima facie, that they lacked constructive notice of the music teacher’s alleged abusive propensities and conduct … . The defendants’ own submissions established that the plaintiff testified that the alleged abuse by the music teacher occurred once or twice a week during the school year … . In light of the frequency of the alleged abuse, the defendants did not eliminate a triable issue of fact as to whether they should have known of the alleged abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the music teacher or the plaintiff was not negligent … .

Although the single incidence of alleged sexual abuse by the English teacher occurred off of school property and outside of school hours, the defendants’ own submissions demonstrate that the music teacher introduced the plaintiff to the English teacher, describing the plaintiff as his “friend” and a “good girl,” and that, in the presence of the music teacher, the English teacher made arrangements with the plaintiff during school hours and on school grounds to meet after school when the alleged abuse by the English teacher took place … . C. M. v West Babylon Union Free Sch. Dist., 2024 NY Slip Op 04954, Second Dept 10-9-24

Practice Point: Here the frequency of the alleged sexual abuse of plaintiff student by a teacher raised a question of fact about constructive notice by the school defendants.

 

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ONCE AGAIN THE FAILURE TO PROVE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL... STRIKING THE COMPLAINT WAS TOO SEVERE A SANCTION FOR PLAINTIFF’S FAILURE...