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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 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 additional discovery.


  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. ¶ 6.)

  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 ...

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