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PS brought a case under the state’s “Child Victim’s Act” against St. Ephrem Catholic Academy alleging that while he was a student, the schools’ principal sent PS to see a priest for "disciplinary purposes" and was allegedly “molested” on “multiple occasions.”

His complaint, filed with the Kings County Supreme Court, alleged, “negligent supervision, negligent failure to warn, negligent failure to provide a safe and secure environment, and negligent failure to train.” And when the operator of the school sought to have the claims asserted against it thrown out, the court granted that request.

On appeal, the Appellate Division, Second Department, reiterated established law that when pleadings are subject to attack, by way of a motion to dismiss, the underyling allegations are typically accepted as true, with the court’s analysis focused on whether cognizable legal claims have been asserted. And given that the bulk of the complaint satisfied that standard, most of the claims (except for one) were reinstated.

The AD2 found that PS alleged with sufficient specificity that the school “knew or should have known of the priest's propensity to molest children, that the defendant had a duty to exercise the same duty of care of supervision over its minor students as a reasonably prudent parent would, and that the defendant breached its duty to adequately supervise the plaintiff which caused him to be sexually abused by the priest.” That the abuse occurred “off premises,” did not shield the school from liability, since it exposed PS to a “potentially hazardous situation and directed him to see a certain priest for discipline knowing that the priest had a propensity to sexually abuse children.”

As for the “negligent failure to warn,” the AD2 didn’t believe it was “duplicative” of the “negligent supervision” claim, as the facts were viewed as “distinctive” – with one alleging a failure to warn about the priest, while the other asserted that the school failed to “adequately supervise” PS.

But the AD2 did conclude that the “negligent failure to train” cause of action could not be maintained as it was not alleged that the priest was a school “employee.”

Did the school abuse a procedural privilege here?

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S. v St. Ephrem R.C. Parish Church