Opinion
58449/2019
02-25-2020
Sophia MORRISON, Plaintiff, v. Robert SHALACH and Sarah Lawrence College, Defendants.
For Plaintiff: Dana Stricker, Esq., Law Office of Dana Stricker, 180 East 162nd Street Suite 1e, Bronx, NY 10451, 914-588-0651, Strickerlaw@gmail.com For defendant College: Misty D. Marris, Esq., Gordon Rees Scully Mansukhani, LLP, 1 Battery Park Plaza, 28th Floor, New York, New York 10004, 212-269-5500, mmarris@gordonrees.com
For Plaintiff: Dana Stricker, Esq., Law Office of Dana Stricker, 180 East 162nd Street Suite 1e, Bronx, NY 10451, 914-588-0651, Strickerlaw@gmail.com
For defendant College: Misty D. Marris, Esq., Gordon Rees Scully Mansukhani, LLP, 1 Battery Park Plaza, 28th Floor, New York, New York 10004, 212-269-5500, mmarris@gordonrees.com
Terry Jane Ruderman, J. This action, commenced by the filing of a summons and complaint on May 31, 2019, arises out of a sexual and physical assault allegedly perpetrated on plaintiff by defendant Robert Scharlach, while they were both students at defendant College. Scharlach has filed an answer denying the claims and interposing a counterclaim for defamation. The present motion to dismiss, brought by the College, concerns plaintiff's second amended verified complaint, which was filed on September 3, 2019. With respect to the College's alleged liability, the second amended complaint, without providing details of the alleged attack, asserts that the College failed to protect plaintiff, one of its students, against reasonably foreseeable criminal activity, failed to institute proper security measures or disseminate safety warnings, and acted improperly by allowing defendant Robert Scharlach to remain matriculated and by not expelling him. It also asserts that after plaintiff reported her alleged rape to College staff, defendant College failed to provide her with any assistance in addressing her need to postpone completing her coursework or sitting for examinations, thereby burdening her with the need to approach staff for each class to obtain approvals for grades of "incomplete." Additionally, the complaint claims that plaintiff was not provided timely assurances that she would maintain her academic standing under the circumstances, instead causing her further stress by leaving her uncertain as to whether she would be permitted to register for classes the following semester.
Plaintiff's complaint asserts common law negligence against the College, based on the alleged lack of support and institutional assistance provided to her after the alleged rape, causing her additional trauma and stress, amplified by the College's failure to take any punitive steps against defendant Scharlach, who remains on track to graduate. In addition to the cause of action for common law negligence, plaintiff alleges a violation of Civil Rights Law § 79-n, with the contention that defendants intentionally selected plaintiff, a lesbian, for harm, and caused her damage and physical injury in whole or in substantial part because of her sexual orientation.
In moving to dismiss the complaint, the College argues that it does not owe a duty of care toward plaintiff in regard to the pleaded claims, since New York expressly rejects the doctrine of in loco parentis at the college and university level, and the exceptions to this general rule are inapplicable here. It further argues that plaintiff cannot maintain a claim against it under Civil Rights I.aw § 79-n, because the statute only creates a private cause of action for victims of gender-motivated violent acts against the individual perpetrator and does not provide for liability against a large, organizational entity.
In opposition, in addition to submitting an affidavit by plaintiff and an affirmation by counsel, plaintiff filed another pleading on November 7, 2019, which is entitled a "second amended verified complaint." Besides causing confusion, because the previous pleading was also called the "second amended verified complaint," the new amended pleading was filed without leave of the court (see CPLR 3025 [a] ).
Plaintiff's affidavit in opposition includes newly asserted factual allegations relating to an event sponsored by the College on the night of May 3, 2019, called the Formal of Ice and Fire. A copy of the flyer advertising the event, which were allegedly posted all over campus, is annexed as an exhibit to plaintiff's opposition papers. Plaintiff asserts that on that day, before the formal, she, defendant Scharlach and a couple of other friends went shopping to buy outfits for the event, went out to eat, and went to the formal together. She states that there was a lot of drinking at the formal, and that defendant Scharlach became intoxicated. According to plaintiff, they decided to continue the party at her home, and it was there that defendant Scharlach attacked and raped her.
The affirmation of plaintiff's counsel argues that these allegations bring this claim into one of the exceptions to the general rule that the doctrine of in loco parentis does not apply to colleges and universities. Counsel contends that it can be inferred from the warnings included in the flyer about the formal that excessive drinking at the event was anticipated.
Discussion
On a motion to dismiss a complaint under CPLR 3211(a)(7), the complaint is liberally construed, the facts as alleged in the complaint are accepted as true, and the party whose pleading is challenged must be afforded the benefit of every possible favorable inference (see Leon v. Martinez , 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). "Moreover, the court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true" ( Benjamin v. Yeroushalmi , 178 A.D.3d 650, 653, 115 N.Y.S.3d 60 [2d Dept. 2019] ).
"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff" ( Alvino v. Lin , 300 A.D.2d 421, 421, 751 N.Y.S.2d 585 [2d Dept. 2002] ).
"New York has affirmatively rejected the doctrine of in loco parentis at the college level[,] and colleges ‘in general have no legal duty to shield their students from the dangerous activity of other students’ " ( Pasquaretto v. Long Is. Univ. , 106 A.D.3d 794, 795, 964 N.Y.S.2d 599 [2d Dept. 2013], quoting Luina v. Katharine Gibbs School N.Y., Inc. , 37 A.D.3d 555, 556, 830 N.Y.S.2d 263 [2007], quoting Eiseman v. State of New York , 70 N.Y.2d 175, 190, 518 N.Y.S.2d 608, 511 N.E.2d 1128 [1987] ). In Pasquaretto , the plaintiff allegedly sustained personal injuries while "pledging" or "rushing" for membership in a fraternity, and the Court held that "the plaintiff's allegations, even as supplemented by his affidavit, failed to sufficiently allege that the University defendants owed the plaintiff a duty with respect to the [f]raternity's initiation process" ( Pasquaretto v. Long Is. Univ. , 106 A.D.3d at 796, 964 N.Y.S.2d 599 ). In Luina , the plaintiff "allegedly sustained injuries when a fellow student ... punched him in the face during an altercation in their classroom before the start of the class" ( Luina v. Katharine Gibbs School , 37 A.D.3d at 556, 830 N.Y.S.2d 263 ). In Eiseman , a parolee was admitted to a State University after his release, and while a student there, he murdered one student, raped and murdered another, and seriously injured a third. The Court held that the state owed no duty owed to the claimants, rejecting the argument that accepting the convict for admission upon his release, or failing to control his contacts with other students, constituted a breach of duty toward the other students or university community ( Eiseman v. State , 70 N.Y.2d at 191, 518 N.Y.S.2d 608, 511 N.E.2d 1128 ). Based on this established case law, the College had no duty to protect plaintiff from Scharlach.
The exception on which plaintiff relies, under which "[a] duty ... may be imposed upon a college where it has encouraged its students to participate in an activity and taken affirmative steps to supervise and control the activity ( Pasquaretto v. Long Is. Univ. , 106 A.D.3d at 796, 964 N.Y.S.2d 599 [2d Dept. 2013], citing Hores v. Sargent , 230 A.D.2d 712, 712, 646 N.Y.S.2d 165 [1996] ), does not apply here.
Plaintiff relies on the College's Formal of Ice and Fire, and the drinking that it expected would occur there. However, the "school-controlled activity" exception becomes applicable in circumstances where the plaintiff is injured while taking part in an activity being controlled by the college. For example, in Hores v. Sargent , where the plaintiff student was injured while taking part in a bicycle trip planned and organized by the Office of Student Activities of Nassau Community College, the Court found that the College owed a duty to the plaintiff, and denied the College's motion for summary judgment, based on the "school-controlled activity" exception.
Here, the complaint's allegations, even as supplemented by plaintiff's affidavit in opposition, and even when the allegations are afforded the benefit of every possible favorable inference, amount to a mere assertion that the College knew alcoholic beverages would be consumed by participants at the formal it sponsored. That factual claim is not a sufficient basis for applying the "school-controlled activities" exception to impose a duty on the College to protect students from alleged misconduct that occurred off campus, after the event.
Since the exception is inapplicable, this Court must apply the general rule that colleges "have no legal duty to shield their students from the dangerous activity of other students" ( Eiseman v. State of New York , 70 N.Y.2d at 190, 518 N.Y.S.2d 608, 511 N.E.2d 1128 ; Pasquaretto v. Long Is. Univ. , 106 A.D.3d at 795, 964 N.Y.S.2d 599 ; Luina v. Katharine Gibbs School , 37 A.D.3d at 556, 830 N.Y.S.2d 263 ). As to the other claims of tortious conduct in the complaint, plaintiff has not provided any justification, in her allegations or her legal arguments, for the imposition on the College of a legal duty to provide its students with support and assistance for the trauma and stress resulting from an alleged rape. Nor has she established the existence of a legal duty on the part of the College to deny matriculation to a student who is alleged to have committed a sexual assault on another. Consequently, plaintiff's claim of negligence against the College must be dismissed.
Plaintiff's claim against the College for a breach of Civil Rights Law § 79-n must also be dismissed. The statute, entitled "Bias-related violence or intimidation; civil remedy," creates a basis for civil liability against
As the statute's heading indicates, there are two § 79-n, both enacted in 2010. The other prohibits employers from discriminating against individual in same-sex couples when granting funeral or bereavement leave (see L 2010, ch 227, § 1, eff Aug 29, 2010; L 2010, ch 423, § 1, eff Oct 29, 2010).
"Any person who intentionally selects a person or property for harm or causes damage to the property of another or causes physical injury or death to another in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct."
Only one published decision has discussed this statute (see Gottwald v. Sebert , 2016 N.Y. Slip Op. 32815(U), 2016 WL 1365969, 2016 N.Y. Misc. LEXIS 5202 [Sup. Ct. N.Y. County, Kornreich, J.] ). That action concerned litigation between recording artist Kesha Rose Sebert (Kesha) and music publisher Lukasz Gottwald and his companies, in which Gottwald and companies he owned sued Kesha for breach of contract, and Kesha brought counterclaims for violations of New York City and State statutes based upon gender-related hate crimes and gender-based employment discrimination.
Insofar as the Court discussed Kesha's counterclaim against the counterclaim-defendants pursuant to Civil Rights Law § 79-n, it dismissed the claim both because the alleged violent acts did not occur in New York, and because the alleged acts occurred outside of the five-year limitations period of CPLR 213-c ( Gottwald v. Sebert , , 2016 WL 1365969 at *11-12, 2016 N.Y. Misc. LEXIS 5202 at *26-27 ). In footnote 18 of the decision, the Court specifically declined to reach the issue of whether the use of the word "person" in Civil Rights Law § 79-n applies not just to individuals, but to "persons" as that term is defined in General Construction Law § 37, which defines "person" as including a corporation.
This Court must now squarely address that question. Upon consideration of the language and purpose of the statute, it is found that the statute's reference to "[a]ny person who ... causes physical injury ... to another ... because of a belief or perception regarding the ... sexual orientation of a person" is best understood to refer to individual actors, not organizational entities. Not only the use of the word "person," but the requirement that the "person" has taken action based on his or her beliefs or perceptions, supports that interpretation.
Moreover, even assuming that a claim under Civil Rights Law § 79-n could ever be stated against an organization, the present allegations would be insufficient to support such a claim against the College here. Even assuming all plaintiff's allegations to be true, and affording them the benefit of every possible favorable inference, no alleged facts support any claim that a representative of the College caused physical injury to plaintiff because of a belief or perception regarding her sexual orientation.
Finally, there is no basis for allowing any repleading of the claims against the moving defendants, since even when plaintiff's additional factual allegations are taken into consideration, no viable cause of action is stated.
Accordingly, it is hereby
ORDERED that the motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint as against defendant Sarah Lawrence College for failure to state a cause of action is granted, and it is further
This constitutes the Decision and Order of the Court.