This matter comes before the court on a motion by claimant Ann
, as parent and natural guardian of
infant Jane Doe
(who is hereinafter also referred to as
“claimant”), seeking summary judgment on the issue of liability and
seeking to increase the $250,000.00 damages originally sought in the claim
(incorrectly titled as “Notice of Claim”) to $2,000,000.00. The
State’s position in opposition is that there are issues of fact which
preclude granting of summary judgment. Defendant contends further that it is
inappropriate to use defendant’s responses to a Notice to Admit as a
foundation for summary judgment relief.
According to the filed claim, during the period of December 19, 2002 through
December 31, 2002 while Jane Doe was a resident of the defendant’s
Tryon Girls Center Facility she was repeatedly raped and/or sexually assaulted
by a Tryon employee, John Smith. Claimant contends that John Smith,
employed as a Youth Division Aide by the New York State Office of Children
and Family Services (hereinafter referred to as “OCFS”), which
operated the Tryon facility, was an agent, servant and employee of OCFS, acting
within the scope of his employment and that his contacts with Jane Doe
occurred in the course of his duties. Additionally claimant maintains that
defendant was negligent in failing to warn, in failing to take proper safety
precautions for the infant, in failing to properly supervise its employee, in
its hiring practices, in failing to prevent inappropriate relationships, in
failing to conduct a proper background check of its employee, in failing to
provide proper training and instructions, and in failing to terminate or
investigate Smith once it knew or should have known that he had
previously entered into a “meretricious relationship” with one or
more other residents.
While the parties have many areas of factual dispute, the fact that incidents
with claimant occurred is uncontested. Specifically, in its response to
claimant’s Notice to Admit, defendant admits that Jane Doe, who was
15 years old at the time, arrived at the Tryon Reception Center on
December 19, 2002 and remained there for approximately two weeks. During her
stay at the center, defendant’s employee, John Smith, had vaginal
intercourse with the infant claimant on two separate occasions. It was also
conceded that John Smith gave Jane Doe Chinese food and soda
after the other residents were in their rooms contrary to Tryon’s rules
Additionally, the following facts are undisputed, and were known by and
reported to defendant’s staff before December 19, 2002
(the date of
the infant claimant’s admission to Tryon), as evidenced by
defendant’s admission of these facts in defendant’s Response to
Notice to Admit
(these admissions are set
forth verbatim, as they appear in the Notice to Admit):
The essence of claimant’s legal argument on this motion for summary
judgment is that the defendant knew or should have known of John
Smith’s “past history of sexual misconduct against infant
residents at Tryon” (claimant’s Memorandum of Law) and that
defendant failed to stop John Smith from committing acts of sexual
misconduct against the infant claimant.
The gist of defendant’s opposition to this motion is two-fold. First,
defendant maintains that “admissions” made in response to a Notice
to Admit are an inappropriate foundation for CPLR § 3212 relief. Second,
defendant argues that there are issues of fact which preclude a grant of summary
With regard to the claimant’s use of the defendant’s responses to
the Notice to Admit in support of this summary judgment motion, the CPLR
Commentaries have noted that:
[s]tated simply, the availability of a notice to admit should not depend on the
particular point in the litigation at which its fruits are to be exploited.
There are many cases that impliedly make this point. For example, there are
many decisions in which statements in a notice to admit have been considered by
the courts on motions for summary judgment. See, e.g., Kowalski v. Knox,
293 A.D.2d 892, 741 N.Y.S.2d 291 (3d Dep’t 2002); Beneficial Fin. Co.
of New York, Inc. v. Youngman, 57 A.D.2d 727, 395 N.Y.S.2d 787 (4th
(Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR
C3123:4 at 401). Likewise, Weinstein-Korn-Miller has opined, with regard to the
use of CPLR § 3123 admissions in motion practice, that:
[m]otions for summary judgment have been allowed if a party has established
through admissions that the other party has no meritorious defense. Both
express admissions [Weiss v Testrite Instrument Co., 272 App Div 696] and
failures to deny or respond to a notice to admit should be considered by the
court in ruling on a summary judgment motion.
(6 Weinstein-Korn-Miller, NY Civ Prac ¶ 3123.15).
There is no basis in logic to exclude the use of these admissions on this
motion for summary judgment and there is ample law to support their use.
However, defendant is correct in asserting that there are issues of fact which
preclude summary judgment at this time.
There is no proof on this motion of negligent hiring. There is also no legal
basis upon which the court can find that John Smith, an employee of
defendant at the time of his egregious behavior, was acting within the scope of
his employment and in the course of his duties, thus making defendant liable
under a theory of respondeat superior. Claimant’s argument has been
discounted by the courts in numerous cases - most notably by the Court of
Appeals in N.X. v Cabrini Medical Center, 97 NY2d 247. In Cabrini
the plaintiff patient, while in the recovery room following surgery, was
sexually assaulted by the defendant hospital’s surgical resident. The
court held that:
[u]nder the doctrine of respondeat superior, an employer may be vicariously
liable for the tortious acts of its employees only if those acts were committed
in furtherance of the employer’s business and within the scope of
employment (see, Riviello v Waldron, 47 NY2d 297, 302). A sexual assault
perpetrated by a hospital employee is not in furtherance of hospital business
and is a clear departure from the scope of employment, having been committed for
wholly personal motives (see, Judith M. v Sisters of Charity Hosp., 93
NY2d 932, 933).
(N.X. v Cabrini Medical Center, 97 NY2d 247, 251).
It has likewise been noted that:
sexual assaults are not the kind of intentional torts that may render the
employer liable under the doctrine [of respondeat superior] because they are
clearly perpetrated for the employee’s own purposes, and are a departure
from service to the employer. See Judith M. v Sisters of Charity
Hospital, 93 NY2d 932, 933 (1999); Doe v Rohan, 17 AD3d 509, 793
NYS2d 170 (2d Dept 2005). Bowman v State of New York, 10 AD3d 315 (1st
(Shantelle v State of New York, UID No. 2006-030-516, Claim No. 110268,
Motion No. M-70538).
Claimant cannot be granted summary judgment of liability on either a theory of
negligent hiring or a theory of respondeat superior under the facts of this
case. Nevertheless, this does not preclude a consideration of liability under
the theories of negligent retention or negligent supervision.
For example, a reasonable person might well conclude that what the defendant
essentially characterizes as horseplay by its employee John Smith with
previous Tryon residents, was in fact a form of sexual foreplay which should
have alerted the defendant either to the danger John Smith posed to
claimant or the inadequacy of existing supervision of the claimant. Likewise,
one might conclude that providing food treats to other residents or allowing
them to stay up past their bedtimes, was inappropriate and done to curry sexual
favors. But these conclusions are conjecture. Additionally, it is a
significant leap to conclude that those actions constituted sufficient notice
that it was probable that the employee, John Smith, would go on to rape a
future resident of the facility.
Given what is known on this motion about John Smith’s employment
history, given the lack of proof developed in the prior investigation of any
sexual intercourse or admitted sexual acts, and given the fact that John
Smith knew his behavior was under scrutiny, the court cannot determine as a
matter of law that defendant knew or should have known that it was probable that
either a lack of supervision, or the retention of John Smith would result
in the rape of a resident.
The admitted behavior of John Smith is reprehensible. Nevertheless, the
granting of summary judgment against the defendant at this juncture would
require the court to draw many conclusions from facts which are subject to
differing interpretations. On a motion for summary judgment, the moving party
carries a heavy burden, and in the granting of such a motion “there must
be only one conclusion that can be drawn from the undisputed facts”
(Sanchez v State of New York, 99 NY2d 247, 254).
Even where the relevant facts are uncontested, summary judgment is rarely
appropriate in negligence cases, inasmuch as the issue of whether the defendant
or the plaintiff acted reasonably under the circumstances can rarely be resolved
as a matter of law [citations omitted].
(Rubin v Reality Fashions, Ltd., 229 AD2d 1026 [4th Dept 1996],
quoting Davis v Federated Dept. Stores, 227 AD2d 514).
In light of the foregoing, claimant’s motion for summary judgment on
liability is denied.
Claimant also moves to increase the ad damnum from $250,000.00 to
$2,000,000.00. Defendant did not submit opposition to this portion of
claimant’s motion. Claimant’s counsel alleges, without documentary
support, that “claimant may have contracted a sexually transmitted disease
as a result of the rape” (attorney’s affirmation in support of the
motion) and alleges generally that “the full extent of the rapes and the
damages suffered by the plaintiff [sic] were only recently learned”
(attorney’s affirmation in support of the motion). It is certainly
credible that the full extent of damages for trauma such as alleged here might
not be readily apparent at the outset.
The law is well established that amendments to ad damnum clauses are freely
granted. As the court noted in McIver v State of New York, UID No.
2006-016-032, Claim No. 110890, Motion Nos. M-71045, M-71046:
Amendment under such section [CPLR 3025 (b)] is generally granted absent any
prejudice. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶
3025.14. With regard to amending the ad damnum clause, “[p]rejudice . . .
is not found in the mere exposure of the defendant to greater liability.
Instead, there must be some indication that the defendant has been hindered in
the preparation of his case or has been prevented from taking some measure in
support of his position . . .” Loomis v Civetta Corinno Constr. Corp.,
54 NY2d 18, 23, 444 NYS2d 571, 573 (1981).
The record is devoid of a showing of prejudice and, in practical terms,
“regardless of the amount claimed, claimant still has the burden to
establish her entitlement to these damages at trial” (Stockholm v State
of New York, UID No. 2002-009-50, Claim No. 95825, Motion No.
That portion of claimant’s motion seeking to increase the ad damnum from
$250,000.00 to $2,000,000.00 is granted.