In Doe v. NYC Dept. of Education (decided March 24, 2015), the Appellate Division, First Dept. affirmed the dismissal of plaintiff’s complaint alleging improper sexual conduct between a teacher and a student.
It was “undisputed that defendant Agosto, a substitute teacher at another school and the infant plaintiff’s track coach, had unlawful sexual intercourse with the infant plaintiff at a motel after school hours.”
In affirming the dismissal, the court held:
The court correctly dismissed the vicarious liability claim against DOE, because Agosto’s conduct was not in furtherance of school business and was outside the scope of his employment.
The court correctly dismissed the negligent supervision claim, because the misconduct occurred after school hours and off school premises. Further, plaintiffs failed to present evidence sufficient to raise a triable issue of fact that school authorities had specific knowledge or notice of Agosto’s misconduct or that his misconduct could reasonably have been anticipated. Agosto had no prior criminal record, and there were no prior complaints about him other than the plaintiff mother’s alleged complaints about the end time of practices. Although there was evidence that Agosto drove the infant plaintiff and others home from school, in violation of a Chancellor regulation, this is insufficient to raise an issue of fact as to whether DOE had actual or constructive notice of sexual misconduct. For these reasons, the court also correctly dismissed plaintiffs’ negligent hiring and retention claims.