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THE DEFENDANT SCHOOL IN THIS CHILD VICTIMS ACT CASE DID NOT DEMONSTRATE WHEN PLAINTIFF COULD HAVE DISCOVERED THE ALLEGED FRAUD WHICH INDUCED HIM TO SIGN RELEASES; THEREFORE THIS FRUAD-BASED ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED; THE COMPLAINT STATED CAUSES OF ACTION FOR FRAUDULENT INDUCEMENT AND FRAUDULENT CONCEALMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school in this Child Victims Act case (1) did not demonstrate the fraud-based causes of action to set aside or rescind the releases signed by the plaintiff were time-barred and (2) was not entitled to dismissal of the fraudulent inducement and fraudulent concealment causes of action. Plaintiff alleged he would not have signed the releases had he known the guidance counsellor who allegedly sexually abused him would be allowed to continue in his employment, and he would not have signed the releases had he known there were other instances of sexual misconduct by the guidance counsellor of which the school was aware:  With respect to the statute of limitations for a fraud-based action, the court explained:

“A fraud-based action must be commenced within six years of the fraud or within two years from the time the plaintiff discovered the fraud or could with reasonable diligence have discovered it, whichever is later” (… see CPLR 203[g]; 213[8]). “The inquiry as to whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was possessed of knowledge of facts from which the fraud could be reasonably inferred” … . “Generally, knowledge of the fraudulent act is required and mere suspicion will not constitute a sufficient substitute. Where it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a [fraud-based cause of action] should not be dismissed on motion and the question should be left to the trier of facts” … . “Ordinarily, an inquiry into when a plaintiff should have discovered an alleged fraud presents a mixed question of law and fact” … .

Here, the defendant failed to establish that the causes of action to set aside or rescind the releases on the ground of fraud were time-barred pursuant to CPLR 3211(a)(5) … . “[T]here was no indication in the [amended complaint] or in the papers submitted by the defendant[ ] on [its] motion as to when the plaintiff became aware” of the alleged fraudulent conduct … . In any event, the plaintiff, in affidavits submitted in opposition to the motion, indicated that he learned of certain facts underlying the fraud-based causes of action in early 2021 … . The defendant failed to demonstrate that the plaintiff, by exercising reasonable diligence, could have discovered those facts at some point prior to the two-year period immediately preceding the commencement of this action … . Gormley v Marist Bros. of the Schs., Province of the United States of Am., 2025 NY Slip Op 01612, Second Dept 3-19-25

Practice Point: Here defendant did not demonstrate when plaintiff could or should have become aware of the defendant’s alleged fraud. Therefore the motion to dismiss the fraud-based action as time-barred should not have been granted.

Practice Point: Consult this decision for an explanation of what must be alleged to state causes of action for fraudulent inducement and fraudulent concealment in the context of setting aside or rescinding a release.

 

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IN A FACT-SPECIFIC OPINION, THE COURT OF APPEALS, REVERSING THE APPELLATE DIVISION, DETERMINED THERE WAS SUBSTANTIAL EVIDENCE SUPPORTING THE UNIVERSITY’S RULING THAT PETITIONER-STUDENT VIOLATED THE CODE OF STUDENT CONDUCT BY ENGAGING IN UNWANTED SEXUAL ACTIVITY (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannatara, in a fact-specific analysis, determined the university’s ruling that petitioner, P.C., a university student, violated the Code of Student Responsibility by engaging in unwelcome sexual activity with another student, S.G., was supported by the evidence:

… [S]ubstantial evidence supports the determination that P.C. violated the Code of Student Responsibility by engaging in unwanted sexual activity with S.G. despite her physical resistance and loss of consciousness during separate encounters. Although some aspects of the sexual encounters may have been consensual, there is ample evidence that other aspects were not. S.G.’s unrebutted testimony was deemed credible and she provided consistent evidence, both in her written statement for the investigator and in her hearing testimony, that she tried unsuccessfully to physically remove P.C.’s hands from her neck during an encounter in the woods. Under the Code of Student Responsibility, her physical resistance is inconsistent with affirmative consent.

Similarly, with respect to the allegation that P.C. had sex with S.G. in the car without her affirmative consent, S.G. consistently maintained that she lost consciousness, woke up while P.C. was still having sex with her, and that P.C. then told her she had only been “out” for a moment. Under the Code, sexual activity must stop when a person is incapacitated by lack of consciousness or being asleep. Moreover, P.C.’s own text messages acknowledge the sexual contact and, to some degree, evince a consciousness of guilt.

The evidence adduced depicting unwelcome sexual conduct by P.C. constitutes substantial evidence supporting all three charges. In reaching the opposite conclusion, the Appellate Division majority improperly reweighed the evidence by relying on S.G.’s statements concerning consensual conduct that transpired earlier in the evening, to the exclusion of her testimony regarding the contact to which she did not consent, and disregarded the conclusion that P.C.’s text messages reflected a consciousness of guilt. Matter of P.C. v Stony Brook Univ., 2025 NY Slip Op 01566, CtApp 3-18-25

Practice Point: Consult this opinion for some insight into the evidence which is sufficient to support a university’s ruling that a student should be suspended for violating the Code of Student Responsibility by engaging in unwanted sexual activity.

 

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PLAINTIFF, A CANISIUS COLLEGE STUDENT IN 2020, DID NOT STATE A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT BASED ON THE SHIFT FROM IN-PERSON TO REMOTE LEARNING BECAUSE OF COVID (FOURTH DEPT).

The Fourth Department, affirming Supreme Court, over a two-justice dissent, determined plaintiff did not state a cause of action for breach of contract based on the cessation of in-person classes at Canisius College during COVID:

Plaintiff contends on his appeal that the court erred in granting the motion insofar as it sought to dismiss the breach of contract cause of action to the extent it sought recovery of the tuition he paid to Canisius for the spring 2020 semester. “New York courts have long recognized that the relationship between a university and its students is contractual in nature . . . , and that specific promises set forth in a school’s bulletins, circulars and handbooks, which are material to the student’s relationship to the school, can establish the existence of an implied contract” (Rynasko v New York Univ., 63 F4th 186, 197 [2d Cir 2023] …). Here, however, we reject plaintiff’s contention because “the amended complaint contains only conclusory allegations of an implied contract to provide exclusively in-person learning during the spring 2020 semester which are unsupported by any specific promise that is material to” plaintiff’s relationship with Canisius … . We agree with the Second Department that, in this context, the cause of action for breach of contract requires an allegation of “a specific promise to provide the plaintiff with exclusively in-person learning” … . The amended complaint also fails to state, in anything more than a conclusory fashion, the manner in which plaintiff’s unspecified course of study was impacted by Canisius’s shift to remote operations … . McCudden v Canisius Coll., 2025 NY Slip Op 01539, Fourth Dept 3-14-25

 

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THE SIX-MONTH WAITING PERIOD ASSOCIATED WITH THE REVIVAL OF OTHERWISE TIME-BARRED ACTIONS PURSUANT TO THE CHILD VICTIMS ACT IS NEITHER A STATUTE OF LIMITATIONS NOR A CONDITION PRECEDENT; THEREFORE, PURSUANT TO FEDERAL PROCEDURAL LAW, THE SECOND CIRCUIT MAY RULE THAT DEFENDANT FORFEITED THE RIGHT TO A TIMELINESS DISMISSAL OF THE FEDERAL COMPLAINT (BASED ON THE ARGUMENT PLAINTIFF’S ACTION WAS PREMATURE) BY FAILING TO TIMELY RAISE THE ISSUE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, answering a certified question from the Second Circuit, determined the six-month waiting period associated with the revival of negligence actions pursuant to the Child Victims Act, creating a two-year window for the filing of otherwise time-barred actions, was neither a statute of limitations nor a condition precedent. Therefore, under federal procedural law, the defendant’s failure to timely raise the issue in the federal proceedings forfeited his right to dismissal of the complaint on the ground plaintiff’s action was premature:

In 2019, the legislature passed the Child Victims Act (CVA), which provided that previously time-barred tort claims based on sex offenses against children could be brought within a specified time (see CPLR 214-g). As amended, the CVA provided that such a claim “is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than two years and six months after” February 14, 2019—i.e., “the effective date of this section” (id.). In other words, actions on these claims could be commenced “not earlier than” August 14, 2019 and “not later than” August 14, 2021. * * *

On April 26, 2019, plaintiff commenced a negligence action in state court against defendant, alleging that a teacher employed in one of defendant’s schools engaged in unlawful sexual conduct with her in and around 2009 and 2010, when she was a student under age 17, and that, in 2013, as a result of that conduct, the teacher pleaded guilty to rape in the third degree. * * *

On September 3, 2021, defendant moved for summary judgment dismissing the complaint on statute of limitations grounds. Defendant argued, for the first time, that the complaint must be dismissed because plaintiff commenced her action before CPLR 214-g’s period for filing claims began. Significantly, defendant filed its motion less than three weeks after the statutory period for filing claims ended, meaning that plaintiff would be unable to recommence a timely action if defendant’s motion succeeded. Jones v Cattaraugus-Little Val. Cent. Sch. Dist., 2025 NY Slip Op 01007, CtApp 2-20-25

Practice Point: Here the Court of Appeals, answering the Second Circuit’s question, determined the six-month waiting period for an otherwise time-barred action brought pursuant to the Child Victims Act was not a statute of limitations or a condition precedent. Therefore the Second Circuit was free to deny a federal defendant’s motion to dismiss the Child Victims Act complaint on the ground the action was premature.

 

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BARE ALLEGATIONS THAT A SCHOOL KNEW OR SHOULD HAVE KNOWN OF A TEACHER’S PROPENSITY TO ABUSE STUDENTS, UNSUPPORTED BY ANY FACTUAL ALLEGATIONS, ARE NOT ENOUGH TO STATE A CAUSE OF ACTION FOR NEGLIGENCE OR NEGLIGENT RETENTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case against a school (Central Yeshiva), determined the complaint did not state causes of action for negligence or negligent retention of the teacher (Charitonov) who allegedly sexually abused the plaintiff. Bare allegations that the school knew or should have known of the teacher’s propensity for abuse are not enough to avoid dismissal:

Here, the complaint failed to state causes of action alleging negligence and negligent retention, supervision, and direction against Central Yeshiva, as the complaint did not sufficiently plead that Central Yeshiva knew or should have known of Charitonov’s propensity to commit the alleged wrongful acts and failed to provide any factual allegations from which it could be inferred that Central Yeshiva had prior notice of similar conduct at its dormitory … . The complaint merely asserted bare legal conclusions that Central Yeshiva knew or should have known of Charitonov’s propensity for improper conduct without providing any factual allegations that Charitonov’s abuse of the plaintiff was foreseeable … . Moreover, the plaintiff failed to adequately demonstrate any basis to allow him to conduct discovery prior to directing dismissal of those causes of action (see CPLR 3211[d] …). Doe v Educational Inst. Oholei Torah, 2025 NY Slip Op 00948, Second Dept 2-19-25

Practice Point: In a Child Victims Act case against a school stemming from the abuse of a child by a teacher, bare allegations that the school knew or should have known of the teacher’s propensity for abuse do not state a cause of action for negligence or negligent retention. The complaint must include supporting factual allegations.

 

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IT WAS ALLEGED A TEACHER SEXUALLY ABUSED PLAINTIFF STUDENT ONCE OR TWICE A WEEK FOR THREE YEARS ON SCHOOL GROUNDS, SOMETIMES FOLLOWED BY ABUSE OFF SCHOOL GROUNDS; THE NEGLIGENT SUPERVISION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s motion for summary judgment in this Child Victims Act case should not have been granted. It was alleged plaintiff-student was sexually abused by a teacher once or twice a week for three years. Based on the frequency of the alleged abuse, the school did not demonstrate it did not have constructive notice of the abuse and properly supervised the teacher. Because abuse which allegedly occurred off the school premises was preceded by abuse on school grounds, the off-premises-abuse causes of action should not have been dismissed:

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred once or twice per week over the course of three school years in the same closet while the teacher left the other students in his class unattended, the defendants failed to eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher was negligent … .

Further, although the plaintiff alleged acts of sexual abuse that occurred outside of school premises and school hours, the defendants’ submissions showed that those alleged acts were preceded by instances when the plaintiff allegedly was sexually abused by the teacher during school hours on a regular basis. Sallustio v Southern Westchester Bd. of Coop. Educ. Servs., 2025 NY Slip Op 00690, Second Dept 2-5-25

Practice Point: Consult this decision for a concise summary of the elements of the causes of action where a teacher is accused of frequently sexually abusing a student both on and off school grounds.

 

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THE SCHOOL DISTRICT DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER IT PROPERLY EVALUATED THE TEACHER’S BACKGROUND BEFORE HIRING HER AND WHETHER IT HAD CONSTRUCTIVE KNOWLEDGE OF THE TEACHER’S ALLEGED ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the defendant school district did not demonstrate it took adequate measures to the evaluate the teacher’s background and did not demonstrate it did not have constructive notice of the teacher’s alleged sexual abuse of plaintiff student:

… [T]he defendants failed to establish, prima facie, that the School District was not negligent with respect to the hiring of the teacher. The defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the School District took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired … .

… [T]he defendants failed to establish, prima facie, that the School District lacked constructive notice of the teacher’s abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred between 50 and 100 times over the course of two school years, inter alia, in a classroom and the school parking lot during school hours, the defendants did not eliminate triable issues of fact as to whether the School District should have known of the abuse … . The defendants similarly failed to demonstrate, prima facie, that the School District’s supervision of both the teacher and the plaintiff was not negligent given that, among other things, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent … . Brauner v Locust Val. Cent. Sch. Dist., 2025 NY Slip Op 00418, Second Dept 1-29-25

Practice Point: Here in this Child Victims Act case the school district did not demonstrate it properly evaluated the teacher’s background before hiring her and did not demonstrate it did not have constructive notice of the teachers’ alleged abuse of plaintiff student which allegedly occurred up to 100 times in a classroom and the school parking lot.

 

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THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide:

… [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing the causes of action alleging negligence and negligent supervision and retention insofar as asserted against … . In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and that of his third grade teacher, who served as the direct supervisor of the teacher’s aide. The plaintiff testified that the teacher’s aide singled him out for attention in the classroom and hugged him in the hallways … . While such conduct, without more, might not have been enough to warrant denial of the defendants’ motion, the plaintiff also testified that, upon dismissal from school, the teacher’s aide frequently walked him to her car in the presence of other staff members and then drove him to her home, where the alleged sexual abuse primarily occurred. The third grade teacher also testified that it was “[in]appropriate” for teachers and other school district employees to drive students in their personal vehicles or take students to their homes, conduct which the teacher also believed violated school policies … .

Therefore, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the school district “had notice of the potential for harm to the . . . plaintiff such that its alleged negligence in supervising and retaining [the teacher’s aide] placed [her] in a position to cause foreseeable harm” … . Kastel v Patchogue-Medford Union Free Sch. Dist., 2025 NY Slip Op 00210, Second Dept 1-15-25

Practice Point: The criteria for a school district’s liability for negligent hiring and retention and negligent supervision in a Child Victims Act case concisely laid out.

 

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DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR SEXUAL ABUSE OR THE REPEATED, LONG-TERM ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent hiring and negligent supervision case, over a two-justice dissent, determined the defendant school district did not demonstrate it did not have constructive notice of the sexual abuse of plaintiff by a teacher (Faralan) which occurred repeatedly over an extended period during school hours:

… [T]he district failed to meet its prima facie burden of demonstrating that it was not negligent with respect to the hiring, retention, and supervision of Faralan or that it was not negligent with respect to its supervision of the plaintiff. The district submitted no evidence regarding its hiring, retention, or supervision of Faralan, who was a probationary employee during the time when he sexually abused the plaintiff on school grounds, including times when he was tutoring her one-on-one … . Furthermore, the district failed to establish, prima facie, that it lacked constructive notice of Faralan’s abusive propensities and conduct, particularly given the frequency of the abuse, which occurred several times per week over an extended period of time in the same classroom and hallway during tutoring sessions and at times when others were present … . Stanton v Longwood Cent. Sch. Dist., 2024 NY Slip Op 06600, Second Dept 12-24-24

Practice Point: To warrant summary judgment in a negligent hiring and supervision suit alleging abuse of a student by a teacher, the school district must affirmatively demonstrate it did not have constructive notice of the teacher’s propensity for abuse and/or the abuse itself. Plaintiff’s allegations of repeated abuse during school hours over an extended period of time raised a question of fact re: the district’s constructive notice.

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SUBSTITUTE TEACHER NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS FOR THE PERIOD BETWEEN TWO SUCCESSIVE ACADEMIC YEARS DURING THE PANDEMIC BECAUSE HE RECEIVED ASSURANCE OF CONTINUED EMPLOYMENT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, determined claimant, a substitute teacher, was not entitled to unemployment insurance benefits between two successive academic years (during the COVID pandemic) because he had received assurance of continued employment. The dissenters disagreed with the majority’s conclusion claimant had been assured of continued employment:

“[P]ursuant to Labor Law § 590 (10), a professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment” … . “A reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period” … . “Notably, the question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board’s findings in that regard are supported by substantial evidence, they will not be disturbed” … . Matter of Jensen (Commissioner of Labor), 2024 NY Slip Op 06253, Third Dept 12-12-24

Practice Point: A substitute teacher is not entitled to unemployment insurance benefits during the period between two successive academic years if he or she has received assurance of continued employment.

 

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