The opinion of the court was delivered by: JOHN KOELTL, District Judge
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 ...