United States District Court, S.D. New York
August 9, 2004.
CLAUDIA ESTEVEZ-YALCIN, individually and as parent and natural guardian of N.M., an infant, and J.M., an infant, Plaintiffs,
THE CHILDREN'S VILLAGE, WESTCHESTER COUNTY HEALTH CARE CORPORATION, and SAMUEL TOFFEL, Defendants.
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION and ORDER
This diversity action arises out of the alleged sexual abuse of
two minor children, N.M. and J.M., by defendant Samuel Toffel
("Toffel"). The children's mother, Claudia Estevez-Yalcin
("Estevez-Yalcin"), brought this action on behalf of herself and
on behalf of N.M. and J.M. against Toffel, The Children's Village
("CV"), and Westchester County Health Care Corporation ("WCHCC").
Toffel was a volunteer at both WCHCC and CV at times when N.M.
was a patient at each of the institutions.
The Amended Complaint asserts nine claims for relief against
the defendants. WCHCC is named only in the fifth claim for
relief, which asserts that WCHCC and CV are liable, jointly and
severally, for negligently hiring, retaining, and supervising
Toffel. In their opposition papers to the current motion, the
plaintiffs contend that they have also fairly asserted a claim for negligent misrepresentation against WCHCC in
connection with Toffel's transfer from WCHCC to CV as a
volunteer. CV asserts a cross-claim against WCHCC for
contribution and indemnity.
WCHCC moves pursuant to Federal Rule of Civil Procedure 56 for
summary judgment on all claims pending against it. The plaintiffs
and CV both oppose the motion. As part of their opposition to the
motion, the plaintiffs and CV move pursuant to Rule 56(f) for
The standard for granting summary judgment is well established.
Summary judgment may not be granted unless "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Gallo v. Prudential Residential Servs. Ltd. P'ship,
22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the
summary judgment motion stage of the litigation is carefully
limited to discerning whether there are genuine issues of
material fact to be tried, not to deciding them. Its duty, in
short, is confined at this point to issue-finding; it does not
extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district
court of the basis for its motion" and identifying the matter
that "it believes demonstrate[s] the absence of a genuine issue
of material fact." Celotex, 477 U.S. at 323. The substantive
law governing the case will identify those facts which are
material and "only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court
must resolve all ambiguities and draw all reasonable inferences
against the moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also
Gallo, 22 F.3d at 1223. Summary judgment is improper if there
is any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the nonmoving
party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37
(2d Cir. 1994). If the moving party meets its burden, the burden
shifts to the nonmoving party to come forward with "specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the
record and "may not rely simply on conclusory statements or on
contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York,
996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas,
143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).
Unless otherwise noted, the following facts are not in dispute.
WCHCC is a public benefit corporation created in 1977 under the
New York State Public Authorities Law. (WCHCC's Rule 56.1 St. ¶
1; Pl.'s Resp. 56.1 St. ¶ 1; CV's Resp. 56.1 St. ¶ 1.) CV is a
New York not-for-profit corporation located in Dobbs Ferry, New
York, that provides residential treatment and rehabilitation
programs for male juveniles with psychological problems. (WCHCC's
Rule 56.1 St. ¶ 2; Pl.'s Resp. 56.1 St. ¶ 2; CV's Resp. 56.1 So.
¶ 2.) N.M. and J.M. are brothers, and they were born on December
15, 1985 and March 14, 1993, respectively. (WCHCC's Rule 56.1 So.
¶¶ 3, 6; Pl.'s Resp. 56.1 St. ¶¶ 3, 6; CV's Resp. 56.1 St. ¶¶ 3,
6.) N.M. and J.M. currently reside in Florida, but both resided
in New York when the majority of the alleged injuries occurred.
(Id.) Estevez-Yalcin is the mother of N.M. and J.M., and she
also currently resides in Florida, although she resided in New
York when the majority of the alleged injuries occurred.*fn1
(WCHCC's Rule 56.1 St. ¶ 7; Pl.'s Resp. 56.1 St. ¶ 7; CV's Resp.
56.1 St. ¶ 7.) From February 11, 1997 to June 30, 1997, N.M. was an inpatient
at WCHCC's Psychiatric Institute. (WCHCC's Rule 56.1 St. ¶ 4;
Pl.'s Resp. 56.1 St. ¶ 4; CV's Resp. 56.1 St. ¶ 4.) From June 30,
1997 to August 27, 1998 and from October 29, 1998 to June 25,
1999, N.M. was a resident at CV. (WCHCC's Rule 56.1 St. ¶ 5;
Pl.'s Resp. 56.1 St. ¶ 5; CV's Resp. 56.1 St. ¶ 5.) J.M. was
never a patient at WCHCC and was never a resident at CV. (WCHCC's
Rule 56.1 St. ¶ 6; Pl.'s Resp. 56.1 St. ¶ 6; CV's Resp. 56.1 So.
N.M. was an in-patient on the pediatric ward at WCHCC from
February 11, 1997 to June 30, 1997. (WCHCC's Rule 56.1 St. ¶ 18;
Pl.'s Resp. 56.1 St. ¶ 18; CV's Resp. 56.1 St. ¶ 18.) Toffel was
a volunteer at WCHCC from approximately January 24, 1997 until
the end of December 1997. (WCHCC's Rule 56.1 St. ¶ 19; Pl.'s
Resp. 56.1 St. ¶ 19; CV's Resp. 56.1 St. ¶ 19.) WCHCC concedes
that it did not do a background check on Toffel before it hired
him as a volunteer. (WCHCC's Response to Interrogatories attached
as Ex. N to Pl.'s Resp. Rule 56.1 St., at 1, 4.) WCHCC contends
that Toffel was trained as a volunteer by two recreational
therapists on staff at WCHCC and that Toffel was rarely, if ever, left alone with patients. (WCHCC's
Rule 56.1 St. ¶ 20.) The plaintiffs, however, contend that Toffel was
neither trained nor supervised at WCHCC, and that Toffel was left
alone with N.M. for substantial periods of time. (Pl.'s Resp.
56.1 St. ¶ 20.)
N.M. testified that while at WCHCC he was alone with Toffel on
three occasions either in the living room at WCHCC or on walks
around the building. (WCHCC's Rule 56.1 St. ¶ 22; Pl.'s Resp.
56.1 St. ¶ 22; CV's Resp. 56.1 St. ¶ 22; Deposition of N.M.
attached as Ex. D to Pl.'s Resp. 56.1 St. ("N.M. Dep.") at 38,
42, 192.) On more than one occasion, Toffel periodically rubbed
N.M.'s shoulder and neck while talking to N.M. (N.M. Dep. at
39-40.) On one occasion, Toffel touched N.M. on his leg at the
thigh while N.M. was seated next to him at a table. (Id. at
40-41, 193.) During at least one of the walks outside the
building, Toffel rubbed N.M. on the shoulder. (Id. at 42-43.)
N.M. did not tell anyone about the three incidents of physical
contact he had with Toffel at WCHCC. (WCHCC Rule 56.1 St. ¶ 22;
Pl.'s Resp. Rule 56.1 St. ¶ 22.) N.M. testified that while he was
at WCHCC he "didn't really know [Toffel]," and that Toffel "was
like a counselor that I had to see. . . ." (N.M. Dep. at 39.)
On June 26, 1997, Estevez-Yalcin signed a Voluntary Placement
Agreement transferring custody and care of N.M. to the
Commissioner of Social Services of the City of New York. (WCHCC's Rule 56.1 St. ¶ 25; Pl.'s Resp. 56.1 St. ¶ 25; CV's
Resp. 56.1 St. ¶ 25.) On June 30, 1997, N.M. was discharged from
WCHCC and delivered into the care of a case worker for the New
York City Administration for Social Services. (WCHCC's
Rule 56.1 St. ¶ 26; Pl.'s Resp. 56.1 St. ¶ 26; CV's Resp. 56.1 St. ¶ 26.)
Also on June 30, 1997, N.M. was committed to CV by the New York
City Department of Social Services. (WCHCC's Rule 56.1 St. ¶ 28;
Pl.'s Resp. 56.1 St. ¶ 28; CV's Resp. 56.1 St. ¶ 28.)
Estevez-Yalcin testified that she met Toffel for the first time
on the day that N.M. was transferred to CV, and that a WCHCC
staff member who "looked like a nurse" said that Toffel was a
"nice guy" who had been helping N.M. as a volunteer at WCHCC and
would continue to do so at CV. (Deposition of Claudia
Estevez-Yalcin attached as Ex. I to WCHCC Rule 56.1 So.
("Estevez-Yalcin Dep.") at 82-83, 181.)
On July 9, 1997, Toffel submitted an application to CV for a
position as a volunteer; none of the references on the
application are people employed at WCHCC. (WCHCC's Rule 56.1 So.
¶ 31; Pl.'s Resp. 56.1 St. ¶ 31; CV's Resp. 56.1 St. ¶ 31.) There
is no evidence in the record that CV sought from WCHCC, or that
WCHCC actually provided, a reference or recommendation for Toffel
as part of his application to be a volunteer at CV. (WCHCC's
Rule 56.1 St. ¶¶ 29-33; Pl.'s Resp. 56.1 St. ¶¶ 29-33; CV's Resp. 56.1
St. ¶ 29-33.) However, Estevez-Yalcin testified that when she and N.M. arrived at CV, a CV staff member informed
her that Toffel was a volunteer who would be working with N.M.
and that Toffel had been "recommended from" WCHCC. (WCHCC's
Rule 56.1 St. ¶ 34; Pl.'s Resp. 56.1 St. ¶ 34; Estevez-Yalcin Dep. at
178.) Toffel was discharged by WCHCC as a volunteer in December
1997 because he contacted a parent, conduct that constituted a
breach of patient confidentiality under WCHCC rules. (Deposition
of Maribeth Abrenica dated Sept. 29, 2003 attached as Ex. A to
Affirmation of Barbara F. Kukowski dated Nov. 9, 2003, at 63-66.)
Toffel sexually molested N.M. while N.M. was a resident at CV.
(WCHCC's Rule 56.1 St. ¶ 13; Pl.'s Resp. 56.1 St. ¶ 13; CV's
Resp. 56.1 St. ¶ 13.) The abuse continued throughout N.M.'s stay
at CV, often when N.M. went for overnight visits to Toffel's
apartment. (WCHCC's Rule 56.1 St. ¶ 40; Pl.'s Resp. 56.1 St. ¶
40; CV's Resp. 56.1 St. ¶ 40; N.M. Dep. 88, 91-94.) During this
time, Toffel developed a relationship with Estevez-Yalcin,
through which he gained access to J.M., whom Toffel also sexually
molested. (WCHCC's Rule 56.1 St. ¶ 43; Pl.'s Resp. 56.1 St. ¶ 43;
CV's Resp. 56.1 St. ¶ 43.) Toffel later pleaded guilty to an
indictment charging him with sexually molesting N.M. during the
time when N.M. was a resident at CV and with sexually molesting
J.M. during the time after N.M.'s release from CV. (WCHCC's Rule 56.1 St. ¶ 8; Pl.'s Resp. 56.1 St. ¶ 8;
CV's Resp. 56.1 St. ¶ 8.)
WCHCC first moves for summary judgment on the plaintiffs'
negligent hiring, retention, and supervision claims. The
plaintiffs claim that WCHCC's alleged negligence in hiring,
retaining, and supervising Toffel renders WCHCC liable for the
injuries that Toffel allegedly inflicted on N.M. at WCHCC, as
well as for Toffel's sexual abuse of N.M. and J.M. after N.M. was
transferred to CV. The plaintiffs do not assert that WCHCC is
liable for Toffel's conduct under theories of respondeat superior
or vicarious liability. Rather, the plaintiffs assert that WCHCC
is liable, jointly and severally with CV, for negligently hiring,
retaining, and supervising Toffel.*fn2 See Kenneth R. v.
Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 793 (App.
Div. 1997) ("In instances where an employer cannot be held
vicariously liable for its employee's torts, the employer can
still be held liable under theories of negligent hiring,
negligent retention, and negligent supervision.")
However, a necessary element of causes of action for negligent
hiring, retention, and supervision "is that the employer knew or
should have known of the employee's propensity for the conduct
which caused the injury." Kenneth R., 654 N.Y.S.2d at 793-94 (collecting cases); see also Gomez v. City
of New York, 758 N.Y.S.2d 298, 299 (App. Div. 2003); Oliva v.
City of New York, 748 N.Y.S.2d 164, 166 (App. Div. 2002). "There
is no common-law duty to institute specific procedures for hiring
employees unless the employer knows of facts that would lead a
reasonably prudent person to investigate the prospective
employee." Kenneth R., 654 N.Y.S.2d at 795; see also Doe v.
Whitney, 2004 WL 1470893, at *1-*2 (N.Y. App. Div. June 28,
2004) (reversing denial of summary judgment where "the plaintiffs
failed to raise a triable issue of fact showing that the School
was aware of facts that would have led a reasonably prudent
person to further investigate [the defendant]"). "An employer is
under no duty to inquire as to whether an employee has been
convicted of crimes in the past. Liability will attach on such a
claim only when the employer knew or should have known of the
employee's violent propensities." Yeboah v. Snapple, Inc.,
729 N.Y.S.2d 32, 33 (App. Div. 2001); see also Day v. J. Vlachos
Hellenic Serv. Station, 767 N.Y.S.2d 893, 893 (App. Div. 2003);
T.W. v. City of New York, 729 N.Y.S.2d 96, 97-98 (App. Div.
2001) ("[A]n employer has a duty to investigate a prospective
employee when it knows of facts that would lead a reasonably
prudent person to investigate that prospective employee.").
Therefore, "recovery on a negligent hiring and retention theory
requires a showing that the employer was on notice of the relevant tortious propensities of the wrongdoing
employee." Gomez, 758 N.Y.S.2d at 299.
In this case, WCHCC concedes that it did no background check on
Toffel before it hired him as a volunteer. However, without some
evidence that WCHCC knew or should have known that Toffel posed a
risk of injury to children, WCHCC's failure to investigate Toffel
further was not negligent. See, e.g., Gomez, 758 N.Y.S.2d at
298 (affirming summary judgment dismissing complaint for
negligent hiring and retention where defendants failed to submit
evidence that the moving defendants had knowledge of the relevant
tortious propensities of the wrongdoing employee); Oliva, 748
N.Y.S.2d at 166 (reversing denial of summary judgment on
negligent hiring claim where defendant Police Athletic League did
not know or have reason to know of youth counselor's propensity
to cause plaintiff's injury).
Moreover, the plaintiffs have not shown that WCHCC would have
discovered anything indicating Toffel's propensity to engage in
the alleged tortious conduct had WCHCC actually carried out a
background check on him. See Murray v. Research Found. of
State Univ. of N.Y., 723 N.Y.S.2d 805, 807 (App. Div. 2001)
("Contrary to plaintiff's contention, there is no evidence in the
record that a routine background check would have revealed that
[the defendant employee] had a propensity to harm children."); Koran I. v. New York City Bd. of Educ.,
683 N.Y.S.2d 228, 230 (App. Div. 1998) ("Whether or not the principal
could have been more thorough in checking [the abuser's]
background, his actions do not support a claim of negligent
hiring because a routine background check would not have revealed
his propensity to molest minors."). No reasonable jury could find
that, at the time WCHCC hired Toffel, WCHCC knew or should have
known that Toffel had a propensity for the injurious conduct
alleged in this case or that a background check would have
revealed such a propensity. Therefore, no reasonable jury could
find that WCHCC was negligent in hiring Toffel as a volunteer,
and summary judgment should be granted to WCHCC on the
plaintiffs' negligent hiring claim.
The plaintiffs contend that WCHCC was sufficiently on notice of
Toffel's dangerous propensities after Toffel began working as a
volunteer at WCHCC, such that it should be liable for negligent
retention or supervision of Toffel. The plaintiffs maintain that
WCHCC knew that Toffel was someone who flouted the rules. They
note that on at least one occasion Toffel was told by a WCHCC
staff member to engage in recreation with particular children but
that he did so with entirely different children. (Pl. Mem. Opp.
at 10.) They also contend that someone at WCHCC should have seen
Toffel touch N.M. on the shoulders and neck, physical contact
that could not have been hidden beneath a table, as when Toffel allegedly touched N.M.'s
leg. However, none of this alleged conduct was sufficient to put
WCHCC on notice that Toffel had the propensity to engage in the
injurious conduct alleged in this case. The fact that Toffel on
one occasion played with children other than those with whom a
staff member had told him to play would not put a reasonable
person on notice that Toffel posed a danger of sexual assault or
battery of children. Moreover, N.M. testified that he never told
anyone about the physical contact between him and Toffel at
WCHCC, and there is no indication in the record that anyone saw,
or should have seen, that physical contact. See Gomez, 758
N.Y.S.2d at 299-300. No reasonable jury could conclude based on
the record in this case that WCHCC knew or should have known
facts that would lead a reasonable person to suspect that Toffel
posed a risk to children. Therefore, summary judgment should be
granted in favor of WCHCC on the plaintiffs' negligent retention
and supervision claim. See Murray, 723 N.Y.S.2d at 807
(affirming summary judgment dismissing complaint against employer
for negligent retention of employee where the employer neither
knew nor had reason to know that the employee posed a risk to
The plaintiffs contend that WCHCC should be held to a higher
standard of care because WCHCC had children in its care. The
existence of a heightened duty would not change the outcome in this case, however, because the injuries allegedly incurred by
N.M. were not reasonably foreseeable by WCHCC. See N.X. v.
Cabrini Med. Center, 719 N.Y.S.2d 60, 66 (App. Div. 2001)
("[W]hether there is a heightened duty or not, liability may not
ensue unless it can be said that the harm was foreseeable.") The
parties agree that any injury N.M. suffered while at WCHCC
resulted when Toffel allegedly touched N.M. on his neck,
shoulders, and thigh.*fn3 For the reasons explained above,
Toffel's conduct was not reasonably foreseeable by WCHCC. There
is nothing in the record to suggest that WCHCC knew or should
have known that Toffel had a propensity to engage in such
conduct. For this reason as well, therefore, WCHCC is entitled to
summary judgment on the claims of negligent hiring, retention,
and supervision. See N.X., 719 N.Y.S.2d at 64-65 ("[A] mere
possibility of improper conduct is insufficient to impose
liability since, historically, liability for negligence has been
determined by what is probable, not merely by what is
possible. . . . Here, the possibility that a surgical resident
with no history of sexual misconduct would enter a surgical
recovery room and assault a patient is too remote to be considered legally foreseeable."); see also Cornell v. State of
New York, 401 N.Y.S.2d 107, 108 (App. Div. 1977) (affirming
dismissal of negligence claim against state after trial where
sexual assault on child by attendant at state hospital was not
reasonably foreseeable where state neither knew nor should have
known of attendant's dangerous propensity), aff'd,
389 N.E.2d 1064 (N.Y. 1979).
The plaintiffs' claims for negligent hiring, retention, and
supervision also cannot provide a basis for liability against
WCHCC for the injuries suffered by N.M. and J.M. after N.M. left
WCHCC. It is undisputed that Toffel sexually abused N.M., and
then J.M. as well, after N.M. had been transferred to CV.
However, the injuries caused by Toffel at CV were not proximately
caused by any negligent hiring, retention, or supervision by
WCHCC. Even though N.M. first met Toffel at WCHCC, Toffel's abuse
of N.M. at CV was outside the scope of Toffel's employment with
WCHCC. The abuse occurred while N.M. was in the custody of CV and
while Toffel was under CV's supervision, and primarily during
N.M.'s overnight visits to Toffel's apartment. Toffel's abuse of
J.M. occurred after Toffel developed a relationship with
Estevez-Yalcin at CV in such a way that he was able to gain
access to J.M. Because of the intervening independent acts of CV,
Estevez-Yalcin, and Toffel, as well as the separation in time and
place, Toffel's abuse of N.M. and J.M. following N.M.'s departure from WCHCC
could not have been proximately caused by any negligence by WCHCC
in its hiring, retention, and supervision of Toffel. See
Anonymous v. Dobbs Ferry Union Free School, 736 N.Y.S.2d 117,
118 (App. Div. 2002) (reversing denial of summary judgment on
negligent hiring and supervision claims where school district,
superintendent, and principal established that "any nexus between
[abusive teacher's] employment at the District and his alleged
sexual molestation of the infant plaintiffs was severed by time,
distance, and the intervening independent actions of their
parents," where parents invited teacher to attend New Year's Eve
party and then to stay overnight in their home); Cardona v.
Cruz, 705 N.Y.S.2d 368, 369 (App. Div. 2000) ("As the officer
was not acting within the scope of his employment or under the
City's control, any alleged deficiency in its hiring or training
procedures could not have proximately caused plaintiff's
injuries."); Koran I., 683 N.Y.S.2d at 230 ("Here, though it
happened that plaintiff first met [his abuser] through the
school, plaintiff's personal encounters with his abuser were not
set up through school channels, and occurred in [the abuser's]
apartment after his volunteer work at the school had ceased.
Accordingly, defendant cannot be held liable because any nexus
between [the abuser's] volunteer activities at the school and his
assault upon plaintiff was severed by time, distance and [the abuser's] intervening independent actions."
(internal citations omitted)); Lemp v. Lewis, 641 N.Y.S.2d 158,
159 (App. Div. 1996) (tavern's negligent hiring of bouncer was
not proximate cause of plaintiff's injuries where bouncer punched
plaintiff 20 miles from bar, 30 minutes after bouncer left bar,
and when bouncer was no longer within scope of his employment or
under bar's supervision and control).
WCHCC also moves for summary judgment on the plaintiffs'
negligent misrepresentation claim. This claim is not set forth
explicitly in the Amended Complaint, but the plaintiffs contend
that it can fairly be inferred from the factual allegations in
the Amended Complaint. The plaintiffs contend that, in granting
Toffel access to both N.M. and J.M., Estevez-Yalcin justifiably
relied on WCHCC's alleged misrepresentation that Toffel was a
safe and commendable person.
To prevail on a claim of negligent misrepresentation, "a
plaintiff must establish that, because of some special
relationship with the defendant which generally implies a closer
degree of trust than the ordinary buyer-seller relationship, the
law imposes on that defendant a duty to use reasonable care to
impart correct information, that the information is false or
incorrect, and that the plaintiff reasonably relied upon the
information given." Pappas v. Harrow Stores, Inc., 528 N.Y.S.2d 404, 407 (App. Div. 1988). The negligent statement upon which the
plaintiff relies "must also be a proximate cause of the injury
for which he or she seeks recovery." Id.
The New York Court of Appeals has explained that
the determination of whether defendant, by negligent
misrepresentation, breached a duty to plaintiff and
proximately caused the injury turns on the
reasonableness of both parties' conduct. Defendant
must have imparted the information under
circumstances and in such a way that it would be
reasonable to believe plaintiff will rely upon it;
plaintiff must rely upon it in the reasonable belief
that such reliance is warranted.
Heard v. City of New York, 623 N.E.2d 541, 546 (N.Y. 1993). A
prima facie case for negligent misrepresentation can be made out,
for example, "when one familiar with a hazard offers direct
assurances of safety to one who is unfamiliar with the hazard and
who foreseeably relies upon those assurances." Id. at 545. It
is well established, however, that "[t]he mere recommendation of
a person for potential employment is not a proper basis for
asserting a claim of negligence where another party is
responsible for the actual hiring." Cohen v. Wales,
518 N.Y.S.2d 633, 634 (App. Div. 1987); see also Jurgens v. Poling
Transp. Corp., 113 F. Supp.2d 388, 398 (E.D.N.Y. 2000); Koran
I., 683 N.Y.S.2d at 230.
On the record in this case, the plaintiffs cannot prevail on a
negligent misrepresentation claim. Even assuming a special
relationship between the plaintiffs and WCHCC, there is no evidence to support a finding that WCHCC made a negligent
misrepresentation, or that WCHCC knew that the plaintiffs
intended to rely upon its representations concerning Toffel, or
that the plaintiffs reliance on the representations was
For the reasons explained above, WCHCC was not on notice, at
the time it made any alleged misrepresentations, that Toffel had
a propensity for the injurious conduct alleged in this case.
Because WCHCC did not know, and did not have reason to know, that
Toffel posed any risk of danger to the plaintiffs, WCHCC's words
and conduct suggesting that Toffel was safe and commendable could
not have constituted a negligent misrepresentation. As explained
above, WCHCC was under no obligation to investigate Toffel any
further than it did, and even if it had done so, there is no
evidence that WCHCC would have learned any facts that would have
put it on notice concerning Toffel's dangerous propensities. For
these reasons, no reasonable jury could find that WCHCC made a
statement to the plaintiffs that it knew or should have known was
false or incorrect. Moreover, the fact that WCHCC employed Toffel
as a volunteer and may have encouraged his interaction with N.M.
is insufficient to support a finding of liability on the part of
WCHCC for the injuries inflicted by Toffel, because a mere
recommendation does not support a finding of liability. See Koran I., 683 N.Y.S.2d at 230 ("[P]laintiff seeks to hold the
Board vicariously liable for the alleged negligence of
plaintiff's teachers and school principal in recommending [an
abusive volunteer], availing themselves of his volunteer
services, and encouraging the relationship between him and
plaintiff. This cause of action must fail."); see also Cohen,
518 N.Y.S.2d at 634.
The evidence also would not support a finding that WCHCC knew
that any representations concerning Toffel would be used by
Estevez-Yalcin in deciding to give Toffel access to N.M. and J.M.
Nor would the evidence support a finding that any reliance on
Estevez-Yalcin's part was reasonable. Estevez-Yalcin testified
that someone from WCHCC told her on the day that N.M. was
transferred from WCHCC to CV that Toffel was a "nice guy" and
that he had been helping N.M. at WCHCC and would continue to do
so at CV.*fn4 Although these statements were allegedly made
on June 30, 1997, the day that N.M. was discharged from WCHCC,
Toffel did not apply to become a volunteer at CV until July 9,
1997. Moreover, it is clear from Estevez-Yalcin's testimony that
the statements, if indeed they were made, were made by way of
introducing Estevez-Yalcin to Toffel, not in order to induce her
reliance on the statements in deciding whether to give Toffel access to her sons. (See Estevez-Yalcin Dep. at 82-83.)
For the same reason, any reliance by Estevez-Yalcin on these
statements would not have been reasonable. Estevez-Yalcin also
claims that she relied on the fact that a reputable institution
like WCHCC had employed Toffel as a volunteer in deciding to give
Toffel access to her sons. But there is no evidence that WCHCC
employed Toffel as a volunteer knowing that Estevez-Yalcin would
rely on that fact in making the particular decision she made in
giving Toffel access to her sons. For the same reason, any
reliance by Estevez-Yalcin on that fact would have been
unreasonable. Because there is no evidence that WCHCC's words or
conduct actually constituted a misrepresentation, or that its
words and conduct could reasonably be construed as inducing
Estevez-Yalcin's reasonable reliance in granting Toffel access to
N.M. and J.M., summary judgment must be granted to WCHCC on the
plaintiffs' negligent misrepresentation claim.
Furthermore, for the reasons explained above, the plaintiffs
could not succeed on their negligent misrepresentation claim
because they cannot establish that the alleged misrepresentations
proximately caused their injuries. See Hayes v. Baker,
648 N.Y.S.2d 158, 159 (App. Div. 1996) (town not liable on negligent
misrepresentation claim for injuries caused to child by
babysitter referred by town's community service referral program
because no showing of a special relationship and no showing that injuries were proximately caused
by alleged misstatement).
Because WCHCC cannot be held liable for the injuries suffered
by the plaintiffs, WCHCC must also be granted summary judgment on
CV's cross-claim for contribution or indemnity. See Patterson v.
New York City Transit Auth., 773 N.Y.S.2d 417, 419-20 (App. Div.
2004); Cochrane v. Warwick Assocs., Inc., 723 N.Y.S.2d 506, 508
(App. Div. 2001).
The plaintiffs and CV move pursuant to Rule 56(f) to request
that the Court defer deciding WCHCC's summary judgment motion
pending further discovery. The request is denied.
It is well-established that a party resisting summary judgment
on the grounds that the party needs additional discovery must
submit an affidavit showing (1) what facts are sought to resist
the motion and how they are to be obtained, (2) how those facts
are reasonably expected to create a genuine issue of material
fact, (3) what effort affiant has made to obtain them, and (4)
why the affiant was unsuccessful in those efforts. See Gurary
v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999); Cooney v.
Consolidated Edison, 220 F. Supp.2d 241, 247-48 (S.D.N.Y.
2002), aff'd, 63 Fed. Appx. 579 (2d Cir. 2003). Neither the
plaintiffs nor CV indicate any facts that, if obtained, would create a genuine issue of material fact
concerning WCHCC's liability to the plaintiffs. The issues that
the plaintiffs and CV seek to pursue further concerning Toffel's
hiring, supervision, and subsequent discharge from WCHCC have
been fully developed on the existing record.*fn5 WCHCC, for
example, concedes that it did no background check at all on
Toffel, so further discovery on that issue is unnecessary. The
plaintiffs merely speculate that further discovery concerning
Toffel's retention and supervision at WCHCC would create a
genuine issue of material fact with respect to WCHCC's knowledge
of Toffel's dangerous propensities. CV's request for further
information concerning Toffel's discharge from WCHCC is equally
unsupported and conclusory. See Smith v. Keane, No. 96 Civ.
1629, 1998 WL 146225, at *7 (S.D.N.Y. Mar. 25, 1998) ("Rule 56(f)
is not a device for a fishing expedition or a means to avoid
summary judgment on the mere hope that further evidence will
develop."). Therefore, the application by the plaintiffs and CV to deny the motion by WCHCC or to stay it pending further
discovery is denied.
Defendant WCHCC's motion for summary judgment dismissing the
claims against it is granted.