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John B. (Anonymous) v. Allegro Vivace Music School, Inc.

Supreme Court of New York, Second Department

January 29, 2014

John B. (Anonymous), etc., et al., appellants,
v.
Allegro Vivace Music School, Inc., respondent, et al., defendant. Index No. 15044/09

Sacco & Fillas LLP, Astoria, N.Y. (Si Aydiner, Tonino Sacco, and Elias N. Fillas of counsel), for appellants.

Barry McTiernan & Moore, LLC, New York, N.Y. (David H. Schultz of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, SANDRA L. SGROI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Siegal, J.), entered April 3, 2012, which granted the motion of the defendant Allegro Vivace Music School, Inc., for summary judgment dismissing the complaint insofar as asserted against it and denied their cross motion, inter alia, to strike the answer of that defendant.

ORDERED that the order is affirmed, with costs.

The plaintiffs' complaint alleged that the defendant Allegro Vivace Music School, Inc. (hereinafter Allegro), among other things, negligently supervised the defendant teacher, who sexually molested the infant plaintiff. Under the circumstances of this case, Allegro cannot be held vicariously liable for the subject teacher's torts (see N.X. v Cabrini Med. Ctr., 97 N.Y.2d 247, 251; Perez v City of New York, 79 A.D.3d 835, 836-837; Jackson v New York Univ. Downtown Hosp., 69 A.D.3d 801, 801; Doe v Rohan, 17 A.D.3d 509, 512). Moreover, it cannot be held liable under a theory of negligent supervision (see Kelly G. v Board of Educ. of City of Yonkers, 99 A.D.3d 756, 757-758; Peter T. v Children's Vil., Inc., 30 A.D.3d 582, 586; Doe v Rohan, 17 A.D.3d at 511; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, cert denied 522 U.S. 967). A necessary element of such a cause of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see Kelly G. v Board of Educ. of City of Yonkers, 99 A.D.3d at 757-758; S.C. v New York City Dept. of Educ., 97 A.D.3d 518, 519; Ghaffari v North Rockland Cent. School Dist., 23 A.D.3d 342, 343-344; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 A.D.2d at 161). Here, the Supreme Court properly found that in response to Allegro's prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact (see Shor v Touch-N-Go Farms, Inc., 89 A.D.3d 830, 831-832; Ghaffari v North Rockland Cent. School Dist., 23 A.D.3d at 343; Doe v Rohan, 17 A.D.3d at 511-512).

Accordingly, the Supreme Court properly granted Allegro's motion for summary judgment dismissing the complaint insofar as asserted against it.

The plaintiffs' remaining contentions are without merit or need not be addressed in light of our determination.

RIVERA, J.P., BALKIN, HALL and SGROI, JJ., concur.


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