Supreme Court, Monroe County, February 24, 2023

Faraci Lange, LLP, Rochester (Steven G. Schwarz and Lesley E. Niebel of counsel), for plaintiff.

Goldberg and Segalla LLP, Buffalo (Michael E. Appelbaum of counsel), for defendants/third-party plaintiffs.

In this action, plaintiff, SR, seeks to recover damages for alleged sexual abuse of her in 1991 by Steven Wilson (hereinafter Wilson) when plaintiff was a student at Gates Chili High School where Wilson taught and coached the soccer and basketball teams on which plaintiff played her sophomore, junior and senior (soccer only) years. Wilson is alleged to have used his position as a teacher and coach to develop a close and intimate relationship with plaintiff culminating in intimate kisses and sexual intercourse. The kissing is alleged to have begun during plaintiff's senior year on November 8, 1991, days before plaintiff turned 17. Three instances of sexual intercourse between plaintiff and Wilson are alleged to have occurred at Wilson's home, after plaintiff turned 17, on November 15, November 23, and December 6, 1991.

In 1992, the Gates Chili Board of Education and Gates Chili Central School District brought a proceeding pursuant to Education Law § 3020-a to address Wilson's conduct with plaintiff. A hearing panel was convened (the Panel) and an evidentiary hearing occurred over eight days in 1993. The Panel issued a written decision on July 1, 1993, and concluded that the "findings on the record show that the [Gates Chili Central School] District has proven beyond a preponderance of the evidence that [Wilson] is guilty of conduct unbecoming a teacher and that the penalty of termination is an appropriate one" (NY St Cts Elec Filing [NYSCEF] Doc No. 41, decision of the hearing panel, July 1, 1993, at 23). Specific determinations of the Panel are discussed below.

On September 25, 2020, plaintiff commenced this action pursuant to CPLR 214-g, a statute enacted under the Child Victims Act (hereinafter CVA), against the Gates Chili Board of Education, Gates Chili Central School District and Gates Chili{**78 Misc 3d at 938} High School (hereinafter collectively defendants).^[FN1] Plaintiff's complaint asserts causes of action in negligence and intentional infliction of emotional distress.

Issue was joined, discovery completed, and on December 14, 2022, plaintiff and defendants each filed a notice of motion for summary judgment. Plaintiff seeks partial summary judgment as to defendants' liability in negligence. Defendants seek summary judgment dismissing plaintiff's complaint. The court will consider defendants' motion first.

It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see also Potter v Zimber, 309 AD2d 1276 [4th Dept 2003]). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003], citing Alvarez, 68 NY2d at 324). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the [responsive] papers" (Winegrad v New York Univ. Med. Ctr., [*2]64 NY2d 851, 853 [1985] [citations omitted]; see also Hull v City of N. Tonawanda, 6 AD3d 1142, 1142-1143 [4th Dept 2004]). When deciding a summary judgment motion, the evidence must be viewed in the light most favorable to the nonmoving party (see Russo v YMCA of Greater Buffalo, 12 AD3d 1089 [4th Dept 2004]). The court's duty is to determine whether an issue of fact exists, not to resolve it (see Barr v County of Albany, 50 NY2d 247 [1980]; Daliendo v Johnson, 147 AD2d 312, 317 [2d Dept 1989]).

[1] Defendants' primary contention in support of their motion for summary judgment is that the CVA does not revive plaintiff's claims. Defendants contend that "[t]he [CVA] permits plaintiffs to pursue claims if, and only if, the alleged conduct would be considered one of a number of enumerated Penal Law offenses. . . . [I]t allows recovery for conduct that would constitute{**78 Misc 3d at 939} [a] violation[ ] of [Penal Law article 130]"^[FN2] (NYSCEF Doc No. 61, mem of law in support of defendants' mot for summary judgment at 2, 5). Defendants argue, citing plaintiff's own pretrial deposition testimony, that the alleged instances of sexual abuse here happened only after plaintiff reached the age of consent in New York, 17.^[FN3] Further, plaintiff characterized the instances of alleged abuse as consensual in her 1993 testimony before the Education Law § 3020-a panel.

Defendants maintain that the standard to determine whether plaintiff consented is found only in reference to the standards found in Penal Law article 130. Penal Law article 130 provides that a person less than 17 years of age is deemed incapable of consenting to a sexual act (Penal Law § 130.05 [3] [a]). The statute further provides that where a person is 17 or over and is otherwise deemed capable of consenting to a sexual act, as defendants assert is the case here, lack of consent results when:

"the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances" (Penal Law § 130.05 [2] [d]).^[FN4][*3]

Defendants rely upon plaintiff's Education Law § 3020-a hearing testimony in 1993 wherein plaintiff stated she consented to the kissing and sexual intercourse with Wilson, and point to the lack of any evidence that plaintiff "clearly {**78 Misc 3d at 940}expressed that . . . she did not consent to engage in such act[s], and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act[s] under all the circumstances" (Penal Law § 130.05 [2] [d]). Accordingly, defendants maintain that the alleged abuse by Wilson of plaintiff did not constitute a Penal Law violation because plaintiff was old enough to consent to them and did so consent.

Defendants maintain it is irrelevant that plaintiff testified at her deposition in this case that she, at the time of her 1993 testimony, believed consent related only to the use of force, and that she did not want to have sexual intercourse with Wilson at the times alleged. She did so, according to her deposition testimony, only as the result of Wilson's psychological manipulation and grooming. Defendants argue that psychological manipulation and grooming as described by plaintiff do not constitute a basis to find lack of consent under Penal Law article 130. In sum, therefore, defendants assert that plaintiff had consensual sexual intercourse and intimate kissing with Wilson at an age when she was old enough to consent, she did consent, no crime was committed, and this matter cannot be revived under CPLR 214-g.

CPLR 214-g, enacted as part of the Child Victims Act, provides a revival window for civil claims or causes of action that would otherwise be time-barred under the statute of limitations. It provides that

"[n]otwithstanding any provision of law which imposes a period of limitation to the contrary . . . , every civil claim or cause of action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age . . . is hereby revived" (CPLR 214-g).

Defendants' argument raises a question of a law that was recently decided by the Appellate Division in Anonymous v Castagnola (210 AD3d 940 [2d Dept 2022]). In that case, plaintiff brought an action pursuant to the CVA against, in addition to individual defendants, the Brewster Central School District, Brewster Central School District Board of Education and Brewster High School (Brewster School defendants).{**78 Misc 3d at 941} Plaintiff alleged that beginning when she was 14 years old, while attending Brewster High School, acts of sexual assault were committed against her by a fellow student, Doe, who was in the same grade as her. The Brewster School defendants moved to dismiss asserting that negligence causes of action against them could not be revived under the CVA "because Doe was an infant pursuant to Penal Law § 30.00 at the time the alleged acts of sexual abuse occurred . . . therefore, [Doe] could not have been held criminally liable for his conduct" under Penal Law article 130 (Anonymous v Castagnola, 210 AD3d at 941). Interpreting the statutory language, the Appellate Division rejected the Brewster School defendants' reading of the statute and concluded:

"Here, we find that the plain meaning of the phrase 'conduct which would constitute a sexual offense as defined in [Penal Law article 130]' as used in CPLR 214-g refers to the [*4]conduct described in the enumerated provisions of the Penal Law, and is not limited to those situations in which the conduct would subject the actor to criminal liability. To read the statute as limited to only that conduct for which the actor could be subject to criminal liability, we would have to interpret the language 'constitute a sexual offense' to mean 'establish a violation,' which would require the Court to ' "legislat[e] under the guise of interpretation" ' (People v Gross, 169 AD3d 159, 176 [2019], quoting People v Finnegan, 85 NY2d [53,] 58 [1995])." (Anonymous v Castagnola, 210 AD3d at 942-943 [some citations omitted].)

Further, the Anonymous v Castagnola court examined the legislative history behind the CVA to find that "[n]one of the legislative history suggests that the Legislature intended to limit revival pursuant to CPLR 214-g to only those claims and causes of action that are based on conditions suffered as a result of conduct for which the abuser could have been subject to criminal liability" (Anonymous v Castagnola, 210 AD3d at 944).

Here, defendants urge the same interpretation under essentially the same circumstances as did the Brewster School defendants, that "constitute a sexual offense" as found in CPLR 214-g means "establish a violation" which does not accord with the interpretation of the Appellate Division and must be rejected (Anonymous v Castagnola, 210 AD3d at 942-943).

Accordingly, defendants have failed to establish prima facie entitlement to judgment as a matter of law and their motion{**78 Misc 3d at 942} for summary judgment seeking to dismiss plaintiff's causes of action as untimely, that is not revived under CPLR 214-g, is denied (Anonymous v Castagnola, 210 AD3d at 942; Doe v Syracuse Univ., 2022 NY Slip Op 31908[U], *2 [Sup Ct, NY County 2022] [The complaint alleges abuse when plaintiff was 17 years old and based upon same plaintiff's claim is sufficient under the Child Victims Act]).

Defendants also contend that they cannot be liable because the instances of kissing and sexual intercourse took place off campus at Wilson's home. Defendants argue that when inappropriate sexual conduct happens off school grounds, school districts are not liable.

[2] Plaintiff responds that while the general rule is that schools are not liable for employees' acts that occur off premises, the location of the abuse is not dispositive in that schools may be held liable where those acts are preceded by inappropriate behavior that occurred on campus (Johansmeyer v New York City Dept. of Educ., 165 AD3d 634 [2d Dept 2018]). The court agrees.

"Generally, liability may not be imposed upon school authorities where all of the improper acts against a student occurred off school premises and outside school hours (see Tanaysha T. v City of New York, 130 AD3d 916 [2015]). Here, however, the DOE defendants' submissions demonstrated that, although the sexual abuse ultimately occurred in the infant plaintiff's home, it was preceded by time periods when the infant plaintiff was alone with Denice during school hours on a regular basis. During these times, Denice engaged in inappropriate behavior, including physical touching. Thus, triable issues of fact exist regarding, inter alia, whether the DOE knew or should have known of such behavior and Denice's propensity for sexual abuse (see Doe v Whitney, 8 AD3d 610 [2004]). Accordingly, we agree with the Supreme Court's denial of that branch of the DOE defendants' motion which was for summary judgment [*5]dismissing the complaint insofar as asserted against the DOE." (Johansmeyer v New York City Dept. of Educ., 165 AD3d 634, 636 [2d Dept 2018].)

Here, plaintiff presented proof, in the form of her deposition, of intimate kissing on school property, specifically in Wilson's classroom. Plaintiff testified: "I remember being in his {**78 Misc 3d at 943}classroom and being worried that someone could, like one [of] his students or someone, could walk in when we were kissing intimately." (NYSCEF Doc No. 38, affirmation of Lesley E. Niebel [Niebel affirmation], Dec. 14, 2022, exhibit I, excerpts from plaintiff's deposition, Aug. 10, 2021, at 69, lines 6-10.) Plaintiff testified this intimate kissing occurred with the classroom door closed (id. lines 11-14). This raises a question of fact sufficient to defeat defendants' motion on this point.

Accordingly, defendants' motion for summary judgment on grounds the sexual abuse occurred off school property and therefore defendants are not liable is denied.

Defendants also move for summary judgment as a matter of law in regard to plaintiff's second cause of action, outrage and intentional infliction of emotional distress, and to dismiss any claim for punitive damages. This part of defendants' motion is granted as damages for intentional infliction of emotional distress and punitive damages are not available as against government entities such as defendants here. Plaintiff has submitted no argument in opposition to this part of defendants' motion and conceded at oral argument that this cause of action could not be maintained against these defendants.

Plaintiff seeks partial summary judgment as to liability on its negligence cause of action asserting the facts establish prima facie negligence on the part of defendants for negligent supervision and negligent retention.

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49 [1994]).

"The standard for determining whether a school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information. Where the complaint alleges negligent supervision in the context of injuries caused by an individual's intentional acts, the plaintiff generally must demonstrate 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" (Palopoli v Sewanhaka Cent. High Sch. Dist., 166 AD3d 639, 641 [2d{**78 Misc 3d at 944} Dept 2018] [citations omitted]; Dia CC. v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003] ["Where liability is imposed on a school for negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must demonstrate the school's prior knowledge or notice of the individual's propensity or likelihood to engage in such conduct, so that the individual's acts could be anticipated or were foreseeable"]).

Plaintiff has presented her deposition testimony and Education Law § 3020-a testimony that Wilson used his status as a teacher at Gates Chili High School and as her coach to develop an inappropriate relationship through several actions, detailed infra. This relationship included several instances of intimate kissing and sexual intercourse.

While defendants' opposition to plaintiff's motion for the most part is a reiteration of their argument that plaintiff's claims cannot be revived under the CVA, defendants make one reference to Wilson's denial of the allegations of sexual abuse of plaintiff (see NYSCEF Doc No. 76, defendants' mem [*6]of law in opp to plaintiff's mot for partial summary judgment at 3 ["While Mr. Wilson disputes having a sexual relationship with plaintiff, even assuming the allegations against him are true, his actions are insufficient to invoke liability under the CVA"]). At oral argument of these motions, defendants' counsel again cited Wilson's denials contained in his deposition testimony.

In response, plaintiff's counsel argued that defendants should not be permitted to rely upon Wilson's denials and should be bound by the position they took in 1993 at the Education Law § 3020-a hearing and the findings of the Panel that the sexual abuse in fact took place. The court agrees.

[3] The defendants here may not in the context of this litigation take the position that the acts constituting sexual abuse by Wilson as found by the Panel and as alleged here by plaintiff did not take place. "The doctrine of judicial estoppel, also known as the 'doctrine of estoppel against inconsistent positions[,] . . . precludes a party from framing his pleadings in a manner inconsistent with a position taken in a prior judicial proceeding' " (Secured Equities Invs. v McFarland, 300 AD2d 1137, 1138-1139 [4th Dept 2002]). "The doctrine of judicial estoppel provides that where a party assumes a position in a legal proceeding and succeeds in maintaining that position, that party may not subsequently assume a contrary position{**78 Misc 3d at 945} because [the party's] interests have changed" (Jones v Town of Carroll, 177 AD3d 1297, 1298 [4th Dept 2019]).

"The doctrine rests upon the principle that a litigant should not be permitted . . . to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise" (All Terrain Props. v Hoy, 265 AD2d 87, 93 [1st Dept 2000] [internal quotation marks and citations omitted]). "The twin purposes of the doctrine [of judicial estoppel] are to protect the integrity of the judicial process and to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings" (Pereira v Meisenberg, 183 AD3d 768, 770 [2d Dept 2020]; Festinger v Edrich, 32 AD3d 412, 413 [2d Dept 2006] ["the application of the doctrine also was essential to avoid a fraud upon the court and a mockery of the truth-seeking function"]).

"In New York State the determinations of administrative agencies acting in a judicial or quasi-judicial capacity are not open to collateral attack. The only means by which review may be had in such circumstances is through direct review, ordinarily in an Article 78 proceeding, combining elements of common law mandamus and certiorari. N.Y.CPLR 7801. If such review is not sought, or if it is sought and is unsuccessful, New York courts will regard the decisions of administrative agencies . . . as res judicata" (Taylor v New York City Tr. Auth., 309 F Supp 785, 791 [ED NY 1970] [citations omitted]).

Here, the Education Law § 3020-a proceeding was clearly judicial in nature (see Education Law § 3020-a; Johnson v Department of Educ. of City of N.Y., 158 AD3d 744 [2d Dept 2018]) and the findings of the hearing panel, after an evidentiary hearing pursuant to Education Law § 3020-a, are entitled to estoppel effect (Johnson v Department of Educ. of City of N.Y., 158 AD3d 744, 745-746 [2d Dept 2018] [directing dismissal on collateral estoppel grounds of terminated teacher's age discrimination lawsuit because the 3020-a hearing officer determined the teacher was not terminated due to any type of discrimination]).

On September 8, 1992, the Gates Chili Board of Education found probable cause and brought disciplinary charges pursuant to Education Law § 3020-a against Wilson. The [*7]proceedings were captioned "In the Matter of Proceedings Initiated by the Gates-Chili Central School District v Steven L. Wilson." {**78 Misc 3d at 946}Both parties appeared through counsel and "were afforded full opportunity to present evidence, examine witnesses, [and] argue in support of their positions. A transcript was maintained of the proceedings in accordance with law" (NYSCEF Doc No. 41, Niebel affirmation, exhibit L, decision of the hearing panel at 2). The standard of proof applied was by a preponderance of the evidence (NYSCEF Doc No. 59, 3020-a Wilson hearing tr, Jan. 7, 1993, at 5, lines 18-19).

As noted above, the Panel issued a decision on July 1, 1993. As relevant here, the Panel found that the following charges were sustained: Charge 4 (D) that Wilson engaged in intimate kissing with SR at his home on November 8 and November 14, 1991; and Charge 4 (G) that Wilson engaged in sexual intercourse with SR at his home on November 15, on November 23, and on December 6, 1991.

Consequently, in opposition to plaintiff's motion for summary judgment on liability, defendants may not assert Wilson's denial of intimate kissing and sexual intercourse with plaintiff to raise a question of fact in opposition to plaintiff's motion.

"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 Tr. Auth., 47 AD3d 653, 654 [2d Dept 2008]). "Where liability is imposed on a school for negligent supervision due to injuries related to an individual's intentional acts, the plaintiff generally must demonstrate the school's prior knowledge or notice of the individual's propensity or likelihood to engage in such conduct so that the individual's acts could be anticipated or were foreseeable" (Belfiore v Connetquot Cent. Sch. Dist. of Islip, 2007 WL 7660018, 2007 NY Misc LEXIS 4905, *5 [Sup Ct, Suffolk County, June 7, 2007, No. 98-24359], citing Druba v East Greenbush Cent. School Dist., 289 AD2d 767 [3d Dept 2001], and Schrader v Board of Educ. of Taconic Hills Cent. School Dist., 249 AD2d 741 [3d Dept 1998]). "The employer's negligence lies in having ' "placed the employee in a position to cause foreseeable harm, harm which would most probably have 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 Educ., 165 AD3d 634, 635-636 [2d Dept 2018]).

Teachers at Gates Chili High School were agents of defendants for the purpose of fulfilling their duty to supervise the{**78 Misc 3d at 947} students who attended the school (see Hanley v Hornbeck, 127 AD2d 905, 906-907 [3d Dept 1987] ["Thus, here the issue is whether there was sufficient evidence for a jury to find that the School District breached its duty to Hanley by reason of the negligent manner in which its agent, the gym teacher, discharged his duty of supervising the gym class"]). Furthermore, "[i]t is a broad, general rule that the knowledge of an agent is the knowledge of the principal" (2A NY Jur 2d, Agency and Independent Contractors § 304). "[T]he acts of agents, and the knowledge they acquire while acting within the scope of their authority are presumptively imputed to their principals" (Thompson v Naish, 93 AD3d 1203, 1203 [4th Dept 2012], citing Kirschner v KPMG LLP, 15 NY3d 446, 465 [2010], and Henry v Allen, 151 NY 1, 9 [1896]).

[4] Here, plaintiff has presented deposition testimony from Mary Katherine Schaefer (Schaefer), a teacher at Gates Chili High School, that a female student approached her at the high school in January of 1989 and said that Wilson had kissed her and put his hand under her blouse. Schaefer described the student as extremely upset by this conduct. She further testified [*8]that she confronted Wilson, and that Wilson admitted the conduct.

Consequently, there being no question Schaefer was acting within the scope of her job duties when the student came to her, the knowledge of Schaefer, that a student reported Wilson for kissing her and putting his hand under her blouse, is imputed to defendants. Further, despite being on notice of Wilson's propensity, plaintiff's evidence shows that, on school grounds, defendants permitted Wilson to intimately kiss plaintiff behind a closed door in Wilson's classroom (NYSCEF Doc No. 38, Niebel affirmation, exhibit I, excerpts from plaintiff's deposition, Aug. 10, 2021, at 69, lines 6-10 ["I remember being in his classroom . . . we were kissing intimately"]), to eat multiple lunches alone with plaintiff unsupervised in his classroom (NYSCEF Doc No. 39, Niebel affirmation, exhibit J, plaintiff's Education Law § 3020-a testimony at 45-48), to conduct private correspondence with plaintiff through multiple letters and cards, some of them delivered during plaintiff's classes and to her school locker (NYSCEF Doc No. 38, Niebel affirmation, exhibit I, excerpts from plaintiff's deposition, Aug. 10, 2021, at 44, lines 15-16; at 50, lines 7-10; at 82, lines 10-11), and to spend time alone with plaintiff in the mornings at school when plaintiff should have{**78 Misc 3d at 948} been in homeroom (NYSCEF Doc No. 39, Niebel affirmation, exhibit J, plaintiff's Education Law § 3020-a testimony at 47-48), and failed to question why plaintiff was late for or missed homeroom with multiple excuses written by Wilson informing her psychology teacher that plaintiff had been with him (NYSCEF Doc No. 39, Niebel affirmation, exhibit J, plaintiff's Education Law § 3020-a testimony at 47-48).

Thus, plaintiff has shown prima facie that defendants had notice, prior to any of the instances of kissing and sexual intercourse with plaintiff, that Wilson had propensity to engage in sexual misconduct with female students. That and because of the special attention Wilson payed to plaintiff at school and the amount of time he spent alone with her, it was foreseeable that Wilson would sexually abuse plaintiff and did so abuse plaintiff at school (NYSCEF Doc No. 38, Niebel affirmation, exhibit I, excerpts from plaintiff's deposition, Aug. 10, 2021, at 69, lines 6-14 [relating incidents of intimate kissing in Wilson's classroom]).

In sum, plaintiff has shown prima facie that: defendants had notice and it was foreseeable that Wilson would abuse plaintiff; defendants had a duty to adequately supervise Wilson and did not; and defendants failed to provide supervision and protection to plaintiff which a parent of ordinary prudence would observe in comparable circumstances but did not.

Defendants' response is to rely on their argument that the intimate kissing and sexual intercourse is alleged to have occurred when plaintiff was 17 and therefore old enough under Penal Law article 130 to consent to such sexual conduct with Wilson. Defendants' argument was addressed above and fails to raise a question of fact in response to plaintiff's motion. Nor can Wilson's denials of his conduct raise a question of fact, also as discussed above.

Additionally, defendants do not submit any evidence which raises a question of fact as to notice and Wilson's attentions to plaintiff on school property. Wilson's deposition in this case provides that he does not recall meeting with Schaefer or Schaefer making any allegations regarding another student. That Wilson does not recall Schaefer confronting him in 1989 with allegations that he kissed and fondled a female student does not raise an issue of fact. To the contrary, in Wilson's 1993 testimony during the Education Law § 3020-a hearing, submitted by defendants, Wilson confirms that Kathy Schaefer in fact confronted him with accusations regarding the other student{**78 Misc 3d at 949} (NYSCEF Doc No. 59, affirmation of Michael Appelbaum, Esq., in support of [*9]defendants' mot for summary judgment, exhibit G, 3020-a testimony of Steven Wilson, May 17, 1993, at 1294, lines 16-22; at 1295, lines 1-21).

It is noted that the Panel dismissed charges that were brought as to this student as untimely, and so made no findings as regards the confrontation between Schaefer and Wilson, so judicial estoppel would not apply. However, the Panel did find that Wilson gave plaintiff inappropriate attention and spent time with her alone on school property. Specifically, the Panel sustained the following charges against Wilson and defendants do not otherwise raise any material questions of fact:

• eating lunch alone with SR in his classroom four times a week, keeping snack food and drinks in his classroom to share with SR (Charge 1 [A] at 9-10);

• meeting with SR before homeroom on a regular basis (Charge 1 [E] at 9-10);

• talking with SR during her free period resulting in SR lateness for psychology class on a number of occasions (Charge 1 [F] at 9-10);

• sending 50 to 100 cards and letters to SR, crediting SR testimony that the correspondence was romantic in nature (Charge 2 [M] at 16-17). (Page references to Niebel affirmation, exhibit L, decision of the hearing panel, July 1, 1993.)

Accordingly, plaintiff is entitled to partial summary judgment as to liability on her negligence claim.

Plaintiff also seeks to dismiss defendants' first, second, fourth, ninth, thirteenth, sixteenth, and eighteenth affirmative defenses. In response to plaintiff's motion, defendants have withdrawn their sixteenth and eighteenth affirmative defenses.

Defendants' first and ninth affirmative defenses, that the CVA is unconstitutional and violates defendants' rights to due process under the New York State Constitution, are also dismissed (PB-36 Doe v Niagara Falls City Sch. Dist., 213 AD3d 82, 85 [4th Dept 2023] ["we conclude that the CVA comports with the requirements of the New York Due Process Clause"]). Defendants' second and fourth affirmative defenses, that plaintiff's claims are untimely under the applicable statute of limitations and barred under the doctrine of laches, are dismissed for the reasons stated above.{**78 Misc 3d at 950}

[5] Defendants' thirteenth affirmative defense is that plaintiff failed to mitigate her damages by not reporting Wilson's abuse earlier and failing to engage in timely and consistent mental health counseling. Plaintiff asserts there is no evidence in the record such that defendants could prove this defense at trial.

As to plaintiff's failure to report Wilson's conduct sooner, the court does not find this affirmative defense is available in this case. Defendants have proffered no case law supporting the availability of this defense under these circumstances. Nor does this court find any legal support for the proposition that defendants' duty to provide supervision of their students, or their duty to supervise their employees, is delegable to their students such that they are under a duty to mitigate by promptly reporting a teacher's sexual abuse of them, or that minors may have some degree of culpability for allowing the abuse to go on unreported such that a jury should take this into account in fashioning a damage award. "Generally, the doctrine of mitigation will not operate against an injured party where the failure to minimize damages occurs subsequent to some intentional or reckless act on defendant's part" (Diana T. Axelrod et al., 3 Damages in Tort Actions § 16.01 [Oct. 2022 update]; Den Norske Ameriekalinje Actiesselskabet v Sun Print. & Publ. Assn., 226 NY 1 [1919]). Moreover, plaintiff's damages here are psychological, "thus most difficult for a layman to anticipate and mitigate in any case" (Clark Operating Corp. v Yokley, 120 Misc 2d 631, 633 [Civ Ct, Kings County 1983]).

Moreover, an affirmative defense that plaintiff failed to timely report the abuse or timely or consistently seek mental health counseling is antithetical to the legislative history and purpose behind the CVA.

"[A]s evidenced by the legislative history of the CVA, the legislature considered the need for 'justice for past and future survivors of child sexual abuse' and the need to 'shift the significant and lasting costs of child sexual abuse to the responsible parties' (Senate Introducer's Mem in Support, Bill Jacket, L 2019, ch 11 at 8). Specifically, the legislative history noted the significant barriers those survivors faced in coming forward with their claims, including that child sexual abuse survivors may not be able to disclose their abuse until later in life after the relevant statute of limitations has run because of the mental, physical and emotional{**78 Misc 3d at 951} injuries sustained as a result of the abuse (see id. at 7; NY St Coalition Against Dom Violence Mem in Support, Bill Jacket, L 2019, ch 11 at 15)." (PB-36 Doe v Niagara Falls City Sch. Dist., 213 AD3d 82, 84 [2023].)

Therefore, defendants' thirteenth affirmative defense is dismissed.

Finally, the court reserves on plaintiff's request for an order specifying facts deemed established pursuant to CPLR 3212 (g) and 22 NYCRR 202.8-g.

Any request for relief not specifically addressed above is denied.