The opinion of the court was delivered by: Kenneth M. Karas, 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 EstevezYalcin ("Estevez-Yalcin"), brought this action on behalf of herself and on behalf 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/resident at each of the institutions. Defendant CV moves for summary judgment. For the reasons stated herein, the motion is GRANTED.
Defendant Toffel was named in multiple claims for relief. Plaintiffs stated claims for relief sounding in sexual assault and battery, intentional infliction of emotional distress, breach of fiduciary duty, and losses sustained. On January 31, 2002 a default judgment was entered against Defendant Toffel. (Doc. No. 14)
WCHCC was named in the fifth claim for relief, which asserted that WCHCC and CV are liable, jointly and severally, for negligently hiring, retaining, and supervising Toffel. CV also asserted a cross-claim against WCHCC for contribution or indemnity. On October 16, 2003, Defendant WCHCC moved, pursuant to Federal Rule of Civil Procedure 56, for summary judgment on all claims pending against it. (Doc. No. 47) In an Opinion and Order dated August 11, 2004, Judge John G. Koeltl granted WCHCC's Motion for Summary Judgment dismissing all claims against it. See Estevez-Yalcin v. The Children's Village, 331 F. Supp. 2d 170 (S.D.N.Y. 2004). Because WCHCC was found not liable for the injuries suffered by Plaintiffs, Judge Koeltl also granted WCHCC summary judgment on CV's cross-claim for contribution or indemnity. Id. at 179.
The Amended Complaint asserts multiple claims for relief against Defendant CV. Plaintiffs allege that CV is responsible for the torts committed by Defendant Toffel upon N.M. and J.M. through the theory of respondeat superior. Plaintiffs also allege causes of action against CV for negligent hiring, retention, and supervision, breach of fiduciary duty, negligent infliction of emotional distress, and losses sustained.
On September 27, 2004 the case was reassigned to this Court. (Doc. No. 57) On July 14, 2005, CV moved pursuant to Federal Rule of Civil Procedure 56 for summary judgment on all claims pending against it. In the alternative, CV moved for partial summary judgment under Article 16 of New York's Civil Practice Law and Rules ("CPLR").
Unless otherwise noted, the following facts are undisputed. 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 difficulties. (CV's Rule 56.1 Statement ¶ 1; Pls.' Resp. 56.1 Statement ¶ 1) Plaintiffs N.M. and J.M. are brothers, born on December 15, 1985 and March 14, 1993, respectively. (CV's Rule 56.1 Statement ¶ 2; Pls.' Resp. 56.1 Statement ¶ 2) At the time WCHCC's Motion for Summary Judgment was filed, N.M. and J.M. lived in Florida, but both resided in New York when the majority of the alleged injuries occurred. (WCHCC's Prior Rule 56.1 Statement ¶¶ 3, 6 (CV's Ex. C); Pls.' Prior Resp. 56.1 Statement ¶¶ 3, 6 (CV's Ex. C)) Plaintiff Estevez-Yalcin is the mother of N.M. and J.M. and currently resides in Florida with her son J.M. (CV's Rule 56.1 Statement ¶ 3; Pls.' Resp. 56.1 Statement ¶ 3)
From February 11, 1997 to June 30, 1997, N.M. was an in-patient in the pediatric ward at WCHCC's Psychiatric Institute. (CV's Rule 56.1 Statement ¶ 4; Pls.' Resp. 56.1 Statement ¶ 4) Defendant Toffel was a volunteer at WCHCC from approximately January 24, 1997 through the end of December 1997, during which time he met N.M. (CV's Rule 56.1 Statement ¶ 5; Pls.' Resp. 56.1 Statement ¶ 5) On June 26, 1997 Estevez-Yalcin signed a Voluntary Placement Agreement transferring care and custody of N.M. to the Commissioner of Social Services of the City of New York. (CV's Rule 56.1 Statement ¶ 6; Pls.' Resp. 56.1 Statement ¶ 6) N.M. was discharged from WCHCC on June 30, 1997. (CV's Rule 56.1 Statement ¶ 7; Pls.' Resp. 56.1 Statement ¶ 7 n.1)
From June 30, 1997 to August 27, 1998 and from October 29, 1998 to June 25, 1999, N.M. was committed to CV. (CV's Rule 56.1 Statement ¶ 8; Pls.' Resp. 56.1 Statement ¶ 8)
J.M. was never a patient at WCHCC or a resident of CV. (CV's Rule 56.1 Statement ¶ 9; Pls.' Resp. 56.1 Statement ¶ 9) Toffel applied for a volunteer position at CV on approximately July 9, 1997. (CV's Ex. L) Toffel's application inquired whether he was requesting a specific boy to mentor, and if so, which boy. (CV's Ex. L) Toffel checked yes to this question, naming N.M., and was ultimately assigned as N.M.'s volunteer mentor in approximately November 1997. (CV's Ex. L) Tragically, Toffel sexually molested N.M. during the period when N.M. was a resident at CV and Toffel was his volunteer mentor. (CV's Rule 56.1 Statement ¶ 10; Pls.' Resp. 56.1 Statement ¶ 10) The abuse continued throughout N.M.'s stay at CV, often when N.M. went for overnight visits to Toffel's apartment. (WCHCC's Prior Rule 56.1 Statement ¶ 40; Pls.' Prior Resp. 56.1 Statement ¶ 40; N.M. Dep. 81-83, 88, 91-96, 106-12 (CV's Ex. F))
During the time when N.M. was at CV, Toffel developed a relationship with EstevezYalcin, through which he gained access to J.M. (WCHCC's Prior Rule 56.1 Statement ¶ 43; Pls.' Prior Resp. 56.1 Statement ¶ 43) Toffel met J.M. a couple of months after N.M. was at CV and subsequently sexually molested J.M., but it is unclear when the molestation of J.M. started. (CV's Rule 56.1 Statement ¶ 10; Pls.' Resp. 56.1 Statement ¶ 10) Although J.M. was never a resident of CV, Plaintiffs allege that CV owed a duty to J.M. because CV provided therapeutic services to J.M. in the form of group family therapy sessions both on campus and in his home. (Pls.' Resp. 56.1 Statement ¶ 9; Tansey Dep. 46 (Pls.' Ex. A)) Additionally, Plaintiffs allege that CV's duty to J.M. is established by the fact that a CV social worker suggested it would be a good idea for J.M. to stay with Toffel in his apartment because of problems J.M. was having at home. (Pls.' Resp. 56.1 Statement ¶ 9) As a result, Plaintiffs allege, Toffel then arranged with CV and Estevez-Yalcin to take J.M. to Toffel's apartment. (Pls.' Resp. 56.1 Statement ¶ 9) There is no evidence in the record to suggest that the sexual molestation of J.M. occurred on CV premises. (CV's Rule 56.1 Statement ¶ 11; Pls.' Resp. 56.1 Statement ¶ 11) CV contends that the molestation of N.M. also never occurred on CV premises. (CV's Rule 56.1 Statement ¶ 11) However, Plaintiffs challenge this assertion by noting that N.M. testified he was sexually molested by Toffel while he was in Toffel's car in CV's parking lot. (Pls.' Resp. 56.1 Statement ¶ 11; N.M. Dep. 94-95)
In 1997, Regis McDonald ("McDonald") was responsible for the hiring of mentors/volunteers at CV. (CV's Rule 56.1 Statement ¶ 16; Pls.' Resp. 56.1 Statement ¶ 16) Before approving Toffel as a volunteer mentor, CV gathered the following information about and documentation from Toffel: (a) name; (b) date of birth; (c) race/ethnicity; (d) place of residence; (e) residence and work telephone numbers; (f) information regarding his adoption of a Korean daughter through Family Services of Westchester (approximately twenty years earlier); (g) prior volunteer experience with children; (h) reasons for wanting to become a mentor; (i) results of a safety inspection of his home; (j) description of his home and housekeeping abilities; (k) information regarding his salary and employment; (l) mental, physical, and emotional health as well as any substance abuse; (m) observations of his personality; (n) family history/relations; (o) educational background; (p) military service; (q) marital status; (r) religious preference; (s) parental/disciplinary beliefs; (t) agreement to follow the Therapeutic Foster Care Program; (u) completion of six sessions of "Parent Skills Training" in May 1997; (v) references providing personality and reliability assessments; (w) results of mandatory screening by the New York State Child Abuse Registry; (x) child care experience; (y) certification from the New York State Department of Social Services to board children; (z) certification of his home as Therapeutic Foster Home for Family Service of Westchester with the capacity of housing one respite child; (aa) CV's application for volunteer services; (bb) names, addresses, and telephone numbers of three references; (cc) Volunteer Home Assessment Form; (dd) New York State Central Registrar Clearance; and (ee) signed documentation that Toffel both read and understood the CV Mentor Handbook. (CV's Rule 56.1 Statement ¶ 17; Pls.' Resp. 56.1 Statement ¶ 17)*fn1
Twelve to fourteen boys resided in each CV cottage and residents were not permitted to roam the CV facility unattended. (CV's Rule 56.1 Statement ¶ 18; Pls.' Resp. 56.1 Statement ¶ 18) Orientation and training of mentors included addressing the area of sexually inappropriate conduct with residents and the appropriate level of affection between a mentor and a resident.
(CV's Rule 56.1 Statement ¶ 20; Pls.' Resp. 56.1 Statement ¶ 20) Further, mentors were provided with examples of giving direction to and oversight of a resident. (CV's Rule 56.1 Statement ¶ 21; Pls.' Resp. 56.1 Statement ¶ 21) This training included topics such as limit setting and over-involvement with the residents. (CV's Rule 56.1 Statement ¶ 21; Pls.' Resp. 56.1 Statement ¶ 21) Plaintiffs acknowledge that Toffel received such training but note that he clearly ignored it -- a fact, they claim of which CV was aware, and about which CV articulated concerns yet did nothing to ameliorate. (Pls.' Resp. 56.1 Statement ¶ 21) However, the witness upon whose testimony Plaintiffs rely, N.M.'s social worker, Shannon Tansey ("Tansey"), noted that CV's concern was related to Estevez-Yalcin's relationship with Toffel and not Toffel's interaction with N.M. (Tansey Dep. 37, 39, 46-47) Moreover, CV addressed this concern by Tansey having a conversation with Estevez-Yalcin about boundaries. (Tansey Dep. 39)
All new CV volunteer mentors began their interaction with residents by visiting with them on campus two to four times before they were allowed to take their residents off campus.*fn2
(CV's Rule 56.1 Statement ¶ 22; Pls.' Resp. 56.1 Statement ¶ 22; McDonald Dep. 162-63 (CV's Ex. O)) CV contends that the determination to allow off-campus visits is predicated on an assessment of on-campus visits. (CV's Rule 56.1 Statement ¶ 23; McDonald Dep. 163-64) Further, after off-campus visits, the child's social worker meets with the mentor and the ...