T.N. v Great Neck Pub. Schs. Bd. of Educ.

2024 NY Slip Op 30777(U)

March 12, 2024

Supreme Court, Nassau County

Docket Number: Index No. 900157/2020

Judge: Leonard D. Steinman

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU

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T. N., Part CVA-R

Index No. 900157/2020

Plaintiff, Mot. Seq. No. 003

-against-

 DECISION AND ORDER

GREAT NECK PUBLIC SCHOOLS BOARD OF

EDUCATION, GREAT NECK PUBLIC SCHOOLS,

and GREAT NECK NORTH JUNIOR HIGH SCHOOL,

Defendants.

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GREAT NECK PUBLIC SCHOOLS BOARD OF

EDUCATION, GREAT NECK PUBLIC SCHOOLS,

and GREAT NECK NORTH JUNIOR HIGH SCHOOL,

Third-Party Plaintiffs,

-againstEARL HIGGINS,

Third-Party Defendant.

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LEONARD D. STEINMAN, J. 

__________________________________________________________________________

The following papers, in addition to any memoranda of law and/or statement of 

material facts, were reviewed in preparing this Decision and Order:

Defendants’ Notice of Motion, Affirmation & Exhibits..............................................1

Plaintiff’s Affirmation in Opposition & Exhibits.......................................................2

Defendants’ Reply..................................................................................................3

__________________________________________________________________________

Third-party defendant Earl Higgins was a music teacher at the Great Neck North 

Junior High School in the 1970s. During the 1971-72 school year, N.M., an 11th grade 

student, informed a teacher in the Great Neck School District that Higgins had kissed her and 

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professed his love for her. 1 Sometime during the 1971-72 and 1972-73 school years, 

Higgins kissed plaintiff, a minor student of the District, and on a separate occasion 

performed oral sex on her. Plaintiff now brings this action against defendants alleging, 

among other things, that their negligence resulted in her abuse. The defendants now move, 

pursuant to CPLR 3212 for summary judgment. For the reasons set forth below, their motion 

is granted in part and denied in part.

LEGAL ANALYSIS

Summary judgment is a procedural device that is designed to expedite the resolution 

of civil cases where no issue of material fact is presented to justify a jury trial. Di Sabato v. 

Soffes, 9 A.D.2d 297 (1st Dept. 1959). It is a drastic remedy and should be granted only if 

there are no material issues of fact. Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974). If there 

is any doubt as to the existence of a triable issue summary judgment should be denied. 

Matter of Olivieri, 9/29/1994, 208 A.D.3d 489, 490 (2d Dept. 2022).

It is the movant who has the burden to establish his/her entitlement to summary 

judgment as a matter of law. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997). 

“CPLR § 3212(b) requires the proponent of a motion for summary judgment to demonstrate 

the absence of genuine issues of material facts on every relevant issue raised by the 

pleadings, including any affirmative defenses.” Stone v. Continental Ins. Co., 234 A.D.2d 

282, 284 (2d Dept. 1996). Where the movant fails to meet its initial burden as the movant, 

the motion for summary judgment should be denied. US Bank N.A. v. Weinman, 123 A.D.3d 

1108 (2d Dept. 2014). 

A defendant’s burden cannot be satisfied merely by pointing to gaps in the plaintiff’s 

proof. Matter of New York City Asbestos Litigation, 174 A.D.3d 461 (1st Dept. 2019); 

Vittorio v. U-Haul Co., 52 A.D.3d 823 (2d Dept. 2008). 

1 The facts as set forth by the court are consistent with evidence submitted by plaintiff, including her deposition 

testimony. In the context of a summary judgment motion, a court is to view the evidence in a light most favorable to 

the opposing party and give such party the benefit of every favorable inference. Sheryll v. L & J Hairstylists of

Plainview, Ltd. 272 A.D.2d 603 (2d Dept. 2000). This court is making no findings of fact.

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Once a movant has shown a prima facie right to summary judgment, the burden shifts 

to the opposing party to show that a factual dispute exists requiring a trial, and such facts 

presented by the opposing party must be presented by evidentiary proof in admissible form. 

Zuckerman v. New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc. v. Associated Fur 

Mfrs., Inc., 46 N.Y.2d 1065 (1979). 

Plaintiff has asserted causes of action alleging (1) negligence (First Cause of Action)

and (2) intentional infliction of emotional distress (Second Cause of Action). Plaintiff has 

agreed to dismiss her Second Cause of Action and further has agreed to dismiss her claims 

against Great Neck North Junior High School based upon defendants’ representation that it is 

not a jural entity.

A plaintiff may not recover punitive damages against a public entity and, as a result, 

plaintiff may not recover punitive damages against defendants. Dixon v. William Floyd 

Union Free School Dist., 136 A.D.3d 972 (2d Dept. 2016). Therefore, the request for 

punitive damages is stricken.

To sustain her negligence claim, plaintiff must allege and prove (1) a duty owed by 

the defendants to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting 

therefrom. Solomon v. New York, 66 N.Y.2d 1026, 1027 (1985); Pasternack v. Lab. Corp. of 

Am. Holdings, 27 N.Y.3d 817, 825 (2016); see also, Turcotte v. Fell, 68 N.Y.2d 432, 437 

(1986); Mitchell v. Icolari, 108 AD3d 600 (2d Dept 2013). Plaintiff argues that defendants 

were negligent by failing to properly supervise her and Higgins.

“A necessary element of a cause of action alleging negligent retention or negligent 

supervision is that the ‘employer knew or should have known of the employee’s propensity 

for the conduct which caused the injury’.” Bumpus v. New York City Transit Authority, 47 

A.D.3d 653 (2d Dept 2008). 

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. 

. . . The employer’s negligence lies in having ‘placed the employee in a 

position to cause foreseeable harm, harm which would most probably have 

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been spared the injured party had the employer taken reasonable care in 

making decisions respecting the hiring and retention’ of the employee.” 

Johansmeyer v. New York City Dept. of Ed., 165 A.D.3d 634 (2d Dept 2018) (internal 

citations omitted). 

Similarly where, as here, plaintiff asserts negligent supervision of a minor stemming 

from injuries related to an individual’s intentional acts, the plaintiff generally must 

demonstrate that the relevant entity 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. Nevaeh T. v. City of New York, 132 A.D.3d 840, 842 (2d Dept. 2015), 

quoting Timothy Mc. v. Beacon City Sch. Dist., 127 A.D.3d 826, 828 (2d Dept. 2015); see 

also Mirand v. City of New York, 84 N.Y.2d 44, 49(1994). An entity responsible for 

supervising a minor will only be held liable for foreseeable injuries proximately caused by 

the absence of adequate supervision. Osmanzai v. Sports and Arts in Schools Foundation, 

Inc., 116 A.D.3d 937 (2d Dept. 2014); see also Doe v. Whitney, 8 A.D.3d 610, 611 (2d Dept. 

2004).

None of the sexual abuse of the plaintiff is alleged to have occurred on school 

grounds. Instead, the parties’ sexual activity took place in Higgins’ car, off campus. 

Furthermore, plaintiff does not assert that any inappropriate physical activity took place at 

the school, although she does assert that his “grooming” of her took place there.

Because all the abuse took place off school property and outside of school hours, 

plaintiff may not rely on a theory that that the defendants negligently supervised her. Doe v. 

Hauppauge Union Free School Dist., 213 A.D.3d 809, 810 (2d Dept. 2023). A school is not 

liable for injuries that occur off school property and beyond the orbit of its authority. See 

Doe 1 v. Board of Educ. of Greenport Union Free School Dist., 100 A.D.3d 703, 705 (2d 

Dept. 2012); Vernali v. Harrison Cent. School Dist., 51 A.D.3d 782, 783 (2d Dept. 2008). 

Nonetheless, the defendants may be liable to plaintiff for their negligent supervision 

and retention of Higgins if it is determined that they had notice of Higgins’ propensity to 

commit abuse prior to the abuse of plaintiff and such negligence was a proximate cause of 

the abuse. The location of the actual abuse under this analysis is inconsequential. The 

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defendants may be liable for the foreseeable consequences of their negligence, and Higgins’

abuse of plaintiff—wherever it occurred—was the very same risk that a jury could find 

rendered the defendants negligent for supervising and retaining Higgins. See Bell v. Board of 

Educ. of the City of N.Y., 90 N.Y.2d 944, 947 (1997)(“[w]hen the intervening act, intentional 

act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who 

fails to guard against such conduct will not be relieved of liability when that act occurs”).

Here, there is evidence in the form of Nina Miller’s deposition testimony submitted 

with defendants’ motion that the defendants received actual prior notice that Higgins had 

abused another student. As a result, defendants have not made out a prima facie case 

entitling them to summary judgment.2

All other requested relief, not specifically addressed herein, is hereby denied.

This constitutes the Decision and Order of this court. 

Dated: March 12, 2024

Mineola, New York

ENTER:

_____________________________

LEONARD D. STEINMAN, J.S.C.

2 Plaintiff states that she is not asserting a claim under Social Services Law §413; defendants’ argument that any 

such claim should be dismissed therefore is moot.

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