Colon v. Jarvis , 742 N.Y.S.2d 304 ( 2002 )

In an action, inter alia, to recover damages based upon negligent hiring, etc., the defendant Sachem Central School District At Holbrook appeals from so much of an order of the Supreme Court, Suffolk County (D’Emilio, J.), dated May 23, 2000, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

Between February 1992 and May 1993, the defendant Gary Jarvis (hereinafter Jarvis), a high school teacher for the defendant Sachem Central School District At Holbrook (hereinafter the District), was involved in a consensual sexual relationship with the plaintiff Cindy Marie Colon, who was then a 15-year-old student. Sometime after the relationship ended, Jarvis was arrested, and was eventually convicted, upon a jury verdict, of six counts of sodomy in the third degree, three counts of rape in the third degree, and two counts of endangering the welfare of a child.

The infant plaintiff and her mother commenced this action in 1995 seeking to recover damages against, among others, Jarvis and the District. The plaintiffs alleged, inter alia, that the District was negligent in its hiring, retention, and supervision of Jarvis. Further, the plaintiffs alleged, among other things, that the District was negligent in monitoring Jarvis’s activities at a time when it knew or should have known that he had been involved in meretricious relationships with one or more students, including the infant plaintiff herein.

The District moved for summary judgment dismissing the complaint insofar as asserted against it. Particularly, the District argued, inter alia, that the infant plaintiff would be precluded, as a matter of law, from recovering damages for alleged injuries based upon her consensual sexual conduct with Jarvis pursuant to the rule enunciated in Barton v Bee Line (238 App Div 501). Further, the District maintained that since the infant plaintiff could not recover damages from Jarvis for his tortious conduct, the District could not be held liable on a theory of respondeat superior.

The plaintiffs argued in opposition that the District could be held liable for the negligent hiring, retention, and supervision of Jarvis. The deposition testimony of Detective Robin Kane, who was assigned to investigate the criminal allegations against Jarvis in the instant matter, revealed that prior to the situation involving the infant plaintiff herein, she had investigated claims of. other female students who had received romantic letters and cards from Jarvis. Detective Kane also stated at her deposition that she learned that a female student forwarded a letter received from Jarvis to her guidance counselor, Mrs. Feinstein, who is no longer employed by the District. According to Detective Kane, Mrs. Feinstein forwarded the letter to the assistant principal, who advised Mrs. Feinstein that he would take care of the situation.

The plaintiffs also cross-moved to take the depositions of Jarvis and Mrs. Feinstein. The Supreme Court, in denying the District’s motion for summary judgment and granting the plaintiffs’ cross motion, found that the District would not be entitled to summary judgment dismissing the complaint insofar as asserted against it if the District “knowingly kept * * * Jarvis in its employ knowing of prior inappropriate advances toward students,” and that the plaintiffs established through Detective Kane’s deposition testimony that further discovery may lead to evidence demonstrating the District’s knowledge of Jarvis’ prior improper conduct.

Contrary to the District’s contention, the complaint does not seek to recover damages from the District on the theory of respondeat superior based upon Jarvis’ tortious conduct. The District contends that the infant plaintiff would be precluded, as a matter of law, from recovering damages for alleged injuries based upon her consensual sexual conduct with Jarvis pursuant to the rule enunciated in Barton v Bee Line (supra). However, Barton is inapplicable as the complaint alleges that the District was negligent in the hiring, retention, and supervision of Jarvis.

Since there are issues of fact as to whether the District was aware of Jarvis’ prior improper conduct toward students, the Supreme Court properly denied the District’s motion for summary judgment dismissing the complaint insofar as asserted against it (cf. Sato v Correa, 272 AD2d 389; Avent v Headley, 252 AD2d 565; see Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159; Mataxas v North Shore Univ. Hosp., 211 AD2d 762). O’Brien, Schmidt, and Cozier, JJ., concur.