LISA MARGARET SMITH, United States Magistrate Judge.
This action was originally filed by Plaintiffs A.B. and L.B. in the United States District Court for the District of New Jersey, see Feinberg Decl. (Docket #70) Ex. A, and was subsequently transferred to the Southern District of New York by order dated April 29, 2008. See Feinberg Decl. Ex. B. The action was originally brought against Defendants Mark Staropoli, Paula Staropoli, Clarkstown Soccer Club, Board Members & Employees of the Clarkstown Soccer Club,
All remaining Defendants except for Mark Staropoli now move for summary judgment on Plaintiffs' claims against them. Docket ##66, 69, 72, 75. For the reasons that follow, Defendants' motions for summary judgment are granted.
The following facts relevant to the disposition of the motion are undisputed unless otherwise noted.
A.B. was born on January 16, 1988. Ascher Decl. (Docket #89-4) Ex. FF. A.B. and her father L.B. first met Mark Staropoli ("Mark") in the summer of 2001, when she tried out for the Americans soccer team. Feinberg Decl. Ex. I (A.B. Depo.) at 44:21-45:8.
A.B. was in either 9th grade (2002-2003) or 10th grade (2003-2004) when sexual contact with Mark began. Defs.' Joint 56.1 ¶ 4. During the summer of 2003, when A.B. was staying at the Staropoli home while attending soccer camp, Mark touched her below the waist. Id. ¶ 5. Throughout the summer of 2003, A.B. and Mark engaged in inappropriate contact between ten and twenty times, including on an airplane returning from a trip to St. Lucia. Id. ¶ 6; see Feinberg Decl. Ex. I (A.B. Depo.) at 143:15-144:15. From September, 2003, through June, 2004, A.B. and Mark had sexual contact approximately forty times. Defs.' Joint 56.1 ¶ 7. By June, 2004, A.B. and Mark had had sexual contact approximately fifty to sixty times. Id. ¶ 8; see Staropoli 56.1 ¶ 10 (from the first sexual contact until Mark's arrest in January, 2005, A.B. engaged in sexual relations with Mark on numerous occasions).
From July 18, 2004, to August 2, 2004, A.B. traveled to Europe to play soccer. The parties dispute whether the trip was organized by Robert Walkley and Direct Kick Soccer or whether Clarkstown Soccer Club also played a role in organizing the trip. Id. ¶ 9
In August, 2004, after the Europe trip, Clarkstown Soccer Club's President Nicholas Arcuri received several anonymous letters alleging that Mark and A.B. were engaged in an inappropriate relationship. Defs.' Joint 56.1 ¶ 1.7; see Feinberg Decl. Ex. K. (Arcuri Depo.) at 53, 80. The parties dispute whether this was the first time that anyone had said anything to Clarkstown Soccer Club regarding an inappropriate relationship between A.B. and Mark. Defs.' Joint 56.1 ¶ 18; Pls.' Responses to Joint 56.1 ¶ 18. Arcuri sought advice from an attorney and then proceeded to interview several adults who had gone on the trip. Defs.' Joint 56.1 ¶ 19. However, Plaintiffs claim that Defendants failed to interview at least five other parents who were also on the trip and who witnessed unusual behavior between A.B. and Mark. Pls.' Responses to Joint 56.1 ¶ 17.
Before the trip to Europe in July/August, 2004, no one told Clarkstown Soccer Club, Turrin, or Walkley of any behavior by Mark that demonstrated a propensity to engage in sexual acts with a minor. Id. ¶¶ 29-31.
On January 4, 2005, the police department in Rockaway, New Jersey, where A.B. and L.B. lived, was told that a staff member at A.B.'s high school received an anonymous report that A.B. was involved in a sexual relationship with Mark, Ascher Decl. Ex. Y (Morris County Prosecutor's Office Investigation Report and Supplemental Report). A.B. initially denied the allegation, but then admitted it to the police. Id. Mark was arrested and ultimately convicted in New York, after a jury trial, and in New Jersey, after entering a guilty plea. Ascher Decl. Ex. T (Judgments of Conviction for the States of New York and New Jersey). He is currently in prison, serving his sentence.
Under Rule 56, summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 320-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Local Civ. R. 56.1(a). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A trial judge may, therefore, grant summary judgment only if there is no genuine issue as to any material fact and if the moving party is entitled to judgment
Under Local Rule 56.1(b), the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short, and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried. Local Civ. R. 56.1(b). Summary judgment may be granted only "[i]f after discovery, the nonmoving party `has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.'" Berger v. United States, 87 F.3d 60, 65 (2d Cir.1996) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548) (alteration in original). If the party opposing summary judgment does not respond to the motion, the court may "grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(3). However, even where the nonmoving party fails to respond to a motion for summary judgment, the court
D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir.2006) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004)) (emphasis in original).
Moreover, a court should "constru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in its favor." Mount Vernon Fire Ins. Co. v. Belize NY. Inc., 277 F.3d 232, 236 (2d Cir.2002); Farias v. Instructional Sys., Inc., 259 F.3d 91, 97 (2d Cir.2001); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir.1998); see also Anderson, 477 U.S. at 261 n. 2, 106 S.Ct. 2505. Thus, "[o]nly when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir.1992) (quoting H.L. Hayden Co. v. Siemans Med. Sys. Inc., 879 F.2d 1005, 1011 (2d Cir.1989)).
Plaintiffs assert a claim of negligence against Paula Staropoli ("Paula") based on the assertion that Paula stood in loco parentis to A.B. and had a duty to protect A.B. during the times when A.B. was in Paula's care, namely, when A.B. visited the Staropoli household.
Appell v. Mandel, 296 A.D.2d 514, 745 N.Y.S.2d 491 (2d Dep't 2002) (citations omitted).
In addition, where an infant plaintiffs injuries are caused by the acts of a third party, the elements that the infant plaintiff must establish in order to prevail on a claim based on ordinary negligence in failing to protect him or her against alleged sexual assaults are
Jamal P. v. City of New York, 24 A.D.3d 301, 303, 808 N.Y.S.2d 609 (1st Dep't 2005) (citations omitted).
Thus, the parties dispute whether Paula had actual or constructive notice that Mark would commit sexual assaults upon A.B. as would be necessary to sustain Plaintiffs' claim of negligence. The only physical contact between A.B. and Mark that Paula testified to witnessing was the one occasion in the summer of 2002 in which Mark rubbed A.B.'s feet. As described by Paula, the foot rub incident occurred "in our living room, we were all hanging around and [A.B.] was complaining I guess about her foot and so she was on that end, it was a huge couch, she was on that end, he was at this end, I was on the chair next to them and he rubbed out her foot." Spinella Decl. Ex. B (Paula Staropoli Depo.) at 45:10-15. When Mark's daughter Megan was asked, "[I]f a girl was in the house and she was a soccer player on the team and she was complaining that her foot hurt or that her shoulder hurt or some such thing, would it be unusual for your father to give the person a foot rub or a shoulder massage," Megan replied, "No." Spinella Reply Decl. (Docket #95-1) Ex. Z (Megan Staropoli Depo.) at 130:4-9.
Plaintiffs provide no other evidence of inappropriate behavior either witnessed by or known to Paula until the Europe trip in July/August 2004. During the Europe trip, non-party witnesses testified that Paula was aware of the following inappropriate behavior: (1) A.B. and Mark lying next to each other in a soccer field, which was allegedly witnessed by numerous players, parents, and coaches including Paula,
Plaintiffs otherwise contend that Paula had actual or constructive notice that Mark would commit sexual assaults upon A.B. based on the fact that Paula was home at the time of some of the assaults that occurred in the Staropoli house. See Spinella Decl. Ex. A (A.B. Depo.) at 506:8-18 (A.B. assumes that Paula and her daughters knew what was going on "[b]ecause they were aware of the way I was treated differently. They were home at the time that these acts occurred. Paula's bedroom overlooked the living room where the majority of the acts occurred, so Mark didn't do a particularly well [sic] job of trying to keep this hidden from the public, so I assume that they would know."). However, A.B.'s assumptions alone do not give rise to liability. See Geywits ex rel. Geywits v. Charlotte Valley Cent. Sch. Dist., 98 A.D.3d 804, 805-06, 949 N.Y.S.2d 834 (3d Dep't 2012) (school district did not have constructive notice that sophomore would sexually assault first graders in
In Jamal P., a child care worker at a residential facility, who was seated approximately 12 feet from Jamal's bed, discovered Jamal, then eight years old, engaged in an act of fellatio with another boy. Several days later, a child counselor discovered Jamal and a different boy engaged in inappropriate sexual behavior. In finding that, as a matter of law, the defendant was not negligent in the care and supervision of the infant plaintiff, the court explained,
Jamal P., 24 A.D.3d at 303-04, 808 N.Y.S.2d 609 (citations omitted). Likewise, in this case, the sexual assaults involved stealth and efforts to prevent others from finding out what was going on, and it would be unreasonable to expect that Paula could guard against Mark's "impulsive, unanticipated act[s]" of sexual misconduct. Moreover, "[e]ven if conduct was planned by a third party, it can still be unanticipated ... so as to constitute an intervening act breaking the causal connection
Lastly, Plaintiffs claim that Paula had actual or constructive notice that Mark would commit sexual assaults upon A.B. because Mark ejaculated most of the time either on himself or on a sheet in the basement, and Paula was the one who typically did the laundry. However, A.B.'s testimony was equivocal on this point: Mark ejaculated "[o]n himself or like when we were in the basement on a sheet that was down there. 1 really don't remember." Spinella Decl. Ex. A (A.B. Depo.) at 600:3-7. Moreover, with respect to the sheets, A.B. testified that she "never saw anyone change them while [she] was there or if they were washed." Id. at 600:10-11. However, she testified that Paula "and the kids were the primary laundry doers." Id. at 600:21-22. Mark also testified that it "wouldn't be the norm for [him] to do the wash," Ascher Decl. Ex. I (Mark Staropoli Depo.) at 115:18-19, and Paula "would clean everything," including the bedding. Id. at 116:6-7. Simply put, the assertion that Paula was put on notice by alleged semen stains that may have been left on a sheet in the basement that Paula may have laundered is too speculative to give rise to liability.
In sum, there is no evidence to support a claim of negligence against Paula, and her motion for summary judgment is granted.
Plaintiffs assert claims of negligent supervision and retention against Clarkstown Soccer Club, the Board Members and Employees of the Clarkstown Soccer Club, and Board President Nicholas Arcuri.
"The threshold question in any negligence action is whether the alleged tortfeasor owes a duty of care to the injured party, and the existence and scope of that duty is a legal question for the courts to determine." Sheila C. v. Povich, 11 A.D.3d 120, 125, 781 N.Y.S.2d 342 (1st Dep't 2004) (citations omitted). With respect to the "more specific question of whether a temporary custodian has a continuing duty to protect a child from harm once that child has been returned to the custody of a parent or guardian," id. at 126, 781 N.Y.S.2d 342, the New York Court of Appeals in Pratt v. Robinson, 39 N.Y.2d 554, 384 N.Y.S.2d 749, 349 N.E.2d 849
Pratt, 39 N.Y.2d at 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 (citation omitted). "Since the Court of Appeals rendered its decision in Pratt almost 30 years ago, numerous negligent supervision cases, involving various nonpatent custodians, have reaffirmed that holding." Sheila C, 11 A.D.3d at 127, 781 N.Y.S.2d 342 (collecting cases).
Plaintiffs, without citation to legal support, seek to impose a duty upon Clarkstown Soccer Club and Arcuri that is vastly overbroad. Thus, Plaintiffs assert, "Here, Plaintiff, A.B. was in the continuing custody of Clarkstown and its coach from the time that Plaintiff, A.B. began guesting, continuing through the Europe and Delaware trips until the Defendant's arrest." Pls.' Omnibus Brief in Opp. at 30. However, A.B.'s "guesting" with the Clarkstown team in June or July, 2004, before going on the trip to Europe, Feinberg Decl. Ex. I (A.B. Depo.) at 139:24-140:15, 284:18-24 (A.B. first met Turrin in June or July of 2004 "[t]hrough preparation before going to Europe, at practice during scrimmages"), amounted to attending only five or six practices or scrimmages at which A.B. conceded nothing inappropriate happened with Mark, Brennan Decl. Ex. B (A.B. Depo.) at 285:3-16 (A.B. testified that prior to the Europe trip, A.B. attended five or six practices or scrimmages at which Turrin was present; A.B. only saw Turrin those five or six times on the soccer field; and during those five or six times that A.B. saw Turrin on the soccer field, nothing inappropriate happened with Mark).
Furthermore, there is no evidence that on the occasions when A.B. was in fact within the physical custody and control of Clarkstown Soccer Club, i.e., during practices and soccer games with the Clarkstown team, any of the sexual assaults perpetrated by Mark upon A.B. took place. See, e.g., Spinella Reply Decl. Ex. AA (Nevins Depo.) at 61:9-11 ("Q. Did you ever at any Clarkstown tournaments or practices witness Mark touching [A.B.] in any manner? A. No."); Brennan Decl. Ex. B (A.B. Depo.) at 286:21-287:14 (there were between ten and twenty incidents of inappropriate contact between Mark and A.B. during the summer of 2003, and they all occurred in Mark's home); Feinberg Decl. Ex. I (A.B. Depo.) at 128-33 (Mark inappropriately touched A.B. at her house while sitting on a couch covered by a blanket in front of her father, L.B.), 291:6-25 (during the school year from September, 2003, to June, 2004, the inappropriate contacts between Mark and A.B. always occurred either at Mark's home or in his car); Feinberg Reply Decl. Ex. AD (A.B. Depo.) at 251:9-11 (A.B. and Mark engaged in sexual activity during a ski trip that A.B. took with the Staropoli family to Jiminy Peak). To the extent that sexual activity occurred when either A.B. stayed at Mark's house or Mark picked up A.B. and drove her to his house during the time that she practiced with and later officially joined the Clarkstown team, L.B. allowed A.B. to stay at the Staropoli house and arranged for Mark to drive A.B. to the Staropoli house. Indeed, L.B. met Mark half-way to facilitate this arrangement. See Ascher Decl. Ex. Y (Morris County Prosecutor's Office Investigation Report and Supplemental Report). Clarkstown Soccer Club had nothing to do with the arrangement, nor did Clarkstown Soccer Club have any say in whether or not Mark was allowed access to A.B. outside of practices and games with the Clarkstown team. Rather, all such interactions were sanctioned by A.B.'s father L.B. in the exercise of his parental authority. See id. (Supplemental Report dated 4/8/05 at page 2: during the fall of 2004, Mark started to meet L.B. on Route 287 "to pick up [A.B.] and take her to his home. [L.B.] stated that this had occurred usually every other weekend starting during September 2004 and into December 2004. [L.B.] stated that [Mark] had his permission to take care of [A.B.] while she was in his care."). Thus, Clarkstown Soccer Club did not owe A.B. a duty of care in the instances of Mark's sexual misconduct.
To the extent that Plaintiffs seek to impose liability upon Arcuri and Clarkstown Soccer Club for misconduct that occurred during the Europe trip, there is no evidence that Clarkstown Soccer Club sponsored or organized that trip. See, e.g., Feinberg Decl. Ex. J (Arcuri Aff.) ¶ 4 ("In
In any event, to the extent that Plaintiffs seek to impose liability upon Clarkstown Soccer Club and Arcuri on a theory of negligent supervision or retention,
Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir.2004) (citations omitted). In this case, there is no evidence that Clarkstown Soccer Club knew or should have known of Mark's propensity to engage in
Furthermore, upon receiving the anonymous letters in August, 2004, after the Europe trip, Arcuri contacted an attorney
The Court sees no reason, and Plaintiffs provide none, why Clarkstown Soccer Club and Arcuri were not entitled to rely on the outcomes of both their own and the Orangetown Police Department's investigations, nor do Plaintiffs provide legal support for the notion that Clarkstown Soccer Club and Arcuri acted unreasonably under the circumstances. Plaintiffs suggest not only that Arcuri and Clarkstown Soccer Club should have done a more thorough investigation, but that the only conclusion that they could have reached as a result thereof was that Mark and A.B. were involved in an inappropriate relationship. See Pls.' Omnibus Brief in Opp. at 34 ("Clarkstown refused to properly weigh the facts with which it had been presented, and took no remedial action at all.") & 35 ("Clarkstown cannot avoid responsibility since it simply did not adequately investigate the allegations."), however, as detailed in footnote 19, supra, almost none of the other parents who were on the trip to Europe believed, based on their observations, that A.B. and Mark were involved in an inappropriate relationship.
In addition, when Arcuri received an email from a Clarkstown parent, Chris Inane, dated October 27, 2004, alleging that Mark was dismissed as a coach at Northern Valley High School because he was having an affair with a 15-year-old girl, Arcuri contacted the school's athletic director. In a telephone conversation that took place on November 1, 2004, the athletic director told Arcuri that "he had no evidence or allegations" about an affair between Mark and a 15-year-old girl. Feinberg Decl. Ex. K (Arcuri Depo.) at 79:14-19; see Ascher Decl. Ex. V at 5 (Arcuri's handwritten notes regarding conversation with athletic director of Northern Valley High School). In addition, following receipt of the email from Chris Inane, Arcuri contacted the Orangetown Police Department and provided them with the anonymous letters that had been sent to him and Clarkstown Soccer Club. Spinella Decl. Ex. C (Arcuri Depo.) at 82:16-24. As Arcuri explained,
Id. at 82:25-83:25.
The only incident cited by Plaintiffs after the Europe trip, which was witnessed by some parents and which Plaintiffs claim provided notice of Mark's propensity to engage in sexual misconduct with A.B., was during a tournament in Delaware over Thanksgiving weekend in 2004. The Clarkstown team, along with team members' parents, went out to dinner one night at a Hooters Restaurant, and A.B. was seen spoon-feeding dessert to Mark while either sitting on his lap (and next to her father L.B.) or sitting on her father L.B.'s lap. See Ascher Decl. Ex. F (Young Depo.) at 120:8-17 ("I saw [A.B.], she was sitting on [Mark's] lap and he would feed her when we went out to dinner as [a] group. Q. How many times did you see this? A. Once ... at Hooters. We went to Hooters, and the girls and the parents, and we all ate in a little side room, and [A.B.'s] father was sitting right next to her.")
Lastly, in order to state a claim for negligent supervision or retention, the tort must have been "committed on the employer's premises." None of the alleged incidents of sexual misconduct occurred in locations linked in any way to Clarkstown Soccer Club.
Accordingly, the motion for summary judgment on behalf of Clarkstown Soccer Club and Arcuri is granted.
Plaintiffs assert a claim of negligence against Margaret Turrin based on the assertion that Turrin stood in loco parentis to A.B. and had a duty to protect A.B. during the times when A.B. was in Turrin's care.
Turrin was the assistant coach of the Clarkstown girls soccer team coached by Mark. Brennan Decl. Ex. A (Turrin Affidavit); Spinella Decl. Ex. J (Turrin Depo.) at 20:2-25; Ascher Decl. Ex. I (Mark Staropoli Depo.) at 15:16-17 (Turrin was general manager and assistant coach); Ascher Decl. Ex. N (Moore Depo.) at 16:5-6. She also served as a chaperone for the girls' team that went on the Europe trip. Ascher Decl. Ex. H (Turrin Depo.) at 159:10-11. The permission slip provided by L.B. for A.B. to participate in the Europe trip stated that the team "will be supervised by Mark Staropoli, and Margie Turrin," and L.B. signed a liability release form, releasing "Mark Staropoli and Margie Turrin and their associates form [sic] any and all liability arising from injury or injuries sustained by my child while participating in
There is no evidence that A.B. had any kind of relationship with Turrin until the summer of 2004, when A.B. first began "guesting" with the Clarkstown team, i.e., practicing with the team occasionally and scrimmaging with them once, before going on the trip to Europe. Feinberg Decl. Ex. I (A.B. Depo.) at 139:24-140:15, 284:18-24 (A.B. first met Turrin in June or July of 2004 "[t]hrough preparation before going to Europe, at practice during scrimmages"). Thus, A.B. testified that during her time in London, her relationship with Turrin "was limited" because she "was new to the team ... [Turrin] really didn't know me, and I didn't know her ... other than discussing meal times and practice times, we really didn't talk much." Brennan Decl. Ex. B (A.B. Depo.) at 308:3-7. L.B. signed A.B.'s application to join the Clarkstown team on September 27, 2004, Feinberg Decl. Ex. W, and A.B. officially joined the team on November 11, 2004. Feinberg Decl. Ex. K (Arcuri Depo.) at 25:3-6. Other than the duration of the Europe trip, however, there is no evidence that any of the sexual assaults perpetrated by Mark upon A.B. occurred at times when A.B. was within the physical custody and control of Turrin, i.e., during practices and soccer games with the Clarkstown team at which Turrin served as the assistant coach, See, e.g., Brennan Decl. Ex. B (A.B. Depo.) at 285:3-16 (prior to the Europe trip, A.B. attended five or six practices or scrimmages at which Turrin was present; A.B. only saw Turrin those five or six times on the soccer field; and during those five or six times that A.B. saw Turrin on the soccer field, nothing inappropriate happened with Mark). Thus, Turrin did not owe A.B. a duty of care in any instances of Mark's sexual misconduct that occurred outside of the Europe trip. As previously noted, any inappropriate behavior that occurred during the November, 2004, Delaware trip does not give rise to liability, since L.B. was on that trip with A.B.
As explained in Section II.A., supra, "A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant over whom he or she has assumed temporary custody or control.... [S]uch an individual is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so." Appell, 296 A.D.2d at 514, 745 N.Y.S.2d 491. However, where a claim of negligence is brought against a party based on a failure to protect a minor against alleged sexual assaults by a third party, the infant plaintiff must establish that the defendant "was provided with actual or constructive notice that such assaults might be made upon the infant plaintiff." Jamal P., 24 A.D.3d at 303, 808 N.Y.S.2d 609. As explained in a case in which claims asserted against a school district based on a teacher's acts of sexual misconduct with a student were dismissed, "The harm posed by the teacher's proclivities to engage in inappropriate sexual conduct with students was not known or foreseeable at the time these incidents happened. Without such knowledge, there would have been no reason for a parent of ordinary prudence to prevent his or her child from meeting privately with the teacher during school hours...." Mary KK., 203 A.D.2d at 842, 611 N.Y.S.2d 347 (citation omitted). In this case, there is no evidence that Turrin had either actual or constructive notice that Mark would sexually assault A.B. either at the time that she first began guesting with the Clarkstown team or when she signed up to participate in the trip to Europe. Plaintiffs even admit that "[p]rior to the trip to Europe in July/August, 2004, no one informed Turrin of any behavior by Staropoli that indicated a propensity
A couple of witnesses testified that during the Europe trip, they discussed with Turrin the alleged relationship between A.B. and Mark. Josine Young, another of the chaperones on the Europe trip, testified that while in Amsterdam, she told Turrin about a conversation that Young had had with Mark's youngest daughter Krista, in which Krista said that Mark was going to leave Paula and run off and marry A.B. See Ascher Decl. Ex. F (Young Depo.) at 71:3-72:5. Young also testified about a conversation that she had in London with Turrin and another parent, Francine Frey, in which Frey stated that "she had been replaced by a 16 year old," explaining that Frey had been in a relationship with Mark, and identifying A.B. as the 16 year old. Id. at 80:1-81:5. However, according to Young, neither she nor Turrin asked Frey why she thought she was being replaced by A.B. Id. at 81:10-15. Young also testified that she spoke to Turrin about the instance in which A.B. and Mark were lying down next to each other in the soccer field. Id. at 97:17-24 ("I said [to Turrin] this doesn't look good. What is going on here.... She agreed."). Frey testified that during the middle of the second week of the two-week trip she spoke to Turrin about the relationship between Mark and A.B. Ascher Decl. Ex. D (Frey Depo.) at 138, 229-30. Frey testified that she told Turrin that Mark's daughter Amy was "`very upset about Marks [sic] behavior and what's going on'" and Mark's daughter Megan was "very angry," Id. at 231:1-3. Frey said that in response, Turrin said, "I know. We all know what's going on. And I think she was kind of like trying to figure out how to deal with it without making it bigger than it was." Id. at 231:7-10; see id. at 138:16-20 (Frey said that with respect to the relationship between A.B. and Mark, she asked Turrin, "[W]hat is this? Why is this going on[?] And everyone is dancing around and skating around it. And what are you going to do? And Margie was besides herself."). According to Frey, Turrin was aware of the "laying in the grass, the holding hands going down to the field," although Frey did not know if Turrin specifically said that she saw Mark and A.B. holding hands. Id. at 231:16-22. Frey also testified that Turrin was aware of "what we perceived to be a relationship" between Mark and A.B. Id. at 138:21-25. However, Frey went on to state, "I don't know if there was truly [a relationship] or this was a lot of, you know, silliness." Id. at 139:2-3.
Turrin herself testified that two parents, Debbie Moore and Fatima Schmidt, told her that they had seen Mark coming out of A.B.'s dorm room in London, but that Turrin did nothing after receiving this information since A.B. "was injured. [Mark] explained to them that he had gone in to check on her injury." Ascher Decl. Ex. H (Turrin Depo.) at 51:10-52:24
However, there is little evidence that the other parents on the trip either thought that this behavior was inappropriate or sought to complain to Turrin about it. See Spinella Decl. Ex. F (Young Depo.) at 196:14-20 ("Q. Now, the next incident I believe was the dorm and the parents said they saw Mark go into the dorm, am I right? A. Yes. Q. And you didn't think at that time there was anything inappropriate, did you? A. No."); Spinella Reply Decl. Ex. W (Gibson Depo.) at 62:12-63:17 ("Q. Did you see them doing anything inappropriate, other than lying down? A. No Did I point it out to anybody? No.... The whole team was laying right there. Everybody saw it.... All of the parents that were on the trip.... Margie Turrin... was definitely there. Q. And did you overhear anyone complain to Margie Turrin? A. Not that I'm aware of, no."). One of the parents testified that he observed A.B. and Mark holding hands on the Europe trip, but he acknowledged that he did not tell Turrin about it. Feinberg Decl. Ex. N (Gibson Depo.) at 59:14-16. When Moore was asked whether she recalled "any conversations about any inappropriate conduct at which Margie Turrin was present," Moore responded, "No, I don't think she was there." Feinberg Decl. Ex. O (Moore Depo.) at 21:21-24. As detailed in footnote 19, supra, almost none of the other parents who were on the trip to Europe believed, based on their observations, that A.B. and Mark were involved in an inappropriate relationship, and Turrin herself denies that she ever saw any inappropriate behavior between A.B. and Mark during the trip. Brennan Decl. Ex. A (Turrin Aff.) at 3. As noted above, a nonparent custodian has a duty to protect against "foreseeable injuries proximately resulting from the negligent failure to" provide adequate supervision. Appell, 296 A.D.2d at 514, 745 N.Y.S.2d 491; see also Brandy B., 15 N.Y.3d at 302, 907 N.Y.S.2d 735, 934 N.E.2d 304 ("[U]nanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school's liability in negligence absent actual or constructive notice of prior similar conduct. [I]t must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated.") (internal quotation marks and citations omitted). Based on the information known to Turrin at the time, it was not foreseeable that Mark would sexually assault A.B. during the Europe trip. Therefore, Turrin cannot be held liable for any failure to act during the trip. See Schrader v. Bd. of Educ. of Taconic Hills Cent. Sch. Dist, 249 A.D.2d 741, 743, 671 N.Y.S.2d 785 (3d Dep't 1998) ("[P]laintiffs have made no showing that school personnel were possessed of any knowledge or notice as to the risk of physical
As detailed in Section II.B., supra, after the Europe trip, once allegations of an inappropriate relationship between Mark and A.B. surfaced in anonymous letters sent to Arcuri and Clarkstown Soccer Club in August, 2004, Arcuri interviewed a few of the adults who had gone on the trip, including Turrin, as well as Mark and L.B., and ultimately referred the matter to the Orangetown Police Department, which had already conducted an investigation but concluded that there was no evidence of criminal behavior. Turrin claims that shortly after returning from the Europe trip, she "learned that the Clarkstown Police [sic] met with L.B., A.B., and Mark Staropoli. L.B. called the allegations `horse shit.' No charges were ever brought at that time." Brennan Decl. Ex. A (Turrin Aff.) at 3. As with Clarkstown Soccer Club and Arcuri, Plaintiffs provide no legal justification for the contention that Turrin was not entitled to rely on the outcomes of these investigations or that Turrin acted unreasonably under the circumstances. Even if Turrin had become aware during the Europe trip of the possibility of an inappropriate relationship between A.B. and Mark, these post-trip investigations satisfied any duty Turrin may have owed to A.B. as the assistant coach for A.B.'s Clarkstown Soccer Club team to protect A.B. from foreseeable harm.
Accordingly, Turrin is entitled to summary judgment on Plaintiffs' claims against her.
With respect to Direct Kick Soccer and Robert Walkley, Plaintiffs allege that as the organizers of the trip to Europe in the summer of 2004, they are liable for Mark's sexual misconduct perpetrated during the second week of that trip, when the teams were in England. However, there is no evidence that Direct Kick Soccer and/or Walkley owed a duty to A.B. during the Europe trip, since they never exercised physical custody and control over her. "In the absence of duty, there is no breach and without a breach there is no liability." Sheila C., 11 A.D.3d at 126, 781 N.Y.S.2d 342 (internal quotation marks, alteration, and citations omitted). In this case, the permission slip provided by L.B. for A.B. to participate in the Europe trip states that the team "will be supervised by Mark Staropoli, and Margie Turrin." Ascher Decl. Ex. FF. Accordingly, the liability release form signed by L.B. released "Mark Staropoli and Margie Turrin and their associates form [sic] any and all liability arising from injury or injuries sustained by my child while participating in the trip's activities." Id. A temporary, nonparent custodian's duty is "coextensive with and concomitant to its physical custody of and control over the child." Pratt, 39 N.Y.2d at 560, 384 N.Y.S.2d 749, 349 N.E.2d 849. Here, neither Direct Kick Soccer nor Walkley assumed custodial responsibility
Furthermore, Plaintiffs' claim of negligence against Direct Kick Soccer and Walkley fails for the additional reason that there is no evidence that Walkley had either actual or constructive notice that Mark would commit sexual assaults upon A.B. during the Europe trip, Jamal P., 24 A.D.3d at 303, 808 N.Y.S.2d 609, or, assuming arguendo that Direct Kick Soccer and Mark were in an employer-employee relationship
Moreover, there is no evidence that anyone spoke to Walkley either before, during, or after the Europe trip about any inappropriate conduct engaged in by Mark and A.B. See Feinberg Decl. Ex. AA (Fanshawe Depo.) at 63:24-64:2, 79:14-25; Feinberg Decl. Ex. N (Gibson Depo.) at 38:4-39:25; Feinberg Decl. Ex. O (Moore Depo.) at 21:17-20; Feinberg Decl. Ex. Z (Schmidt Depo.) at 14:18-15:10, 39:10-21; Feinberg Decl. Ex. L (Turrin Depo.) at 126:17-127:10; Feinberg Deck Ex. M (Panayotidis Depo.) at 138:7-10; Feinberg Deck Ex. P (Young Depo.) at 205:6-11, 206:17-19; Ascher Decl. Ex. F (Young Depo.) at 114:6-8; Feinberg Decl. Ex. AB (Walkley Depo.) at 77:17-78:6 (the only complaint made to Walkley about Mark during the Europe trip was that he was demanding of the kids; no other complaints were made to Walkley about Mark during the trip, and no one made any complaints to Walkley about Mark after the Europe trip). As Walkley himself testified, no one ever suggested to him that Mark was having a sexual relationship with a player during the Europe trip, nor did anyone suggest to him prior to the trip that Mark had engaged in inappropriate contact with any player. Goldberger Reply Decl. (Docket #96-1) Ex. A (Walkley Depo.) at 91:22-92:4; see Feinberg Decl. Ex. AB (Walkley Depo.) at 61:8-18 (Walkley did not see anything inappropriate between any of the Clarkstown Soccer players or their guests while in Europe; no one said anything to him regarding inappropriate contact between Mark and any of the female players; he did not communicate with Mark about [A.B.]), 118:23-119:23 (no one suggested to Walkley either before or during the Europe trip that Mark had engaged in sexually inappropriate conduct with underage girls or any of his players), Walkley acknowledged that he had a conversation during the trip with Francine Frey in which Frey commented that A.B., was "taking [her] place," Ascher Decl. Ex. L (Walkley Depo.) at 75:21-22, but Walkley did not know what that meant, id. at 75:23-24, and he did not interpret that as a sexual comment, nor
To the extent that Walkley testified that he paid Mark to work as a coach at the Direct Kick Soccer camp that he ran after the return from Europe, from August 9-13, 2004, which A.B. attended, see Feinberg Decl. Ex. AB (Walkley Depo.) at 61:22-64:6, Plaintiffs' claim against Direct Kick Soccer and Walkley does not include that time period, as it is based only on incidents of sexual misconduct that occurred on the tournament trip to Europe. See Feinberg Decl. Ex. C (Amended Complaint) ¶ 103. In any event, there is no evidence that Walkley was aware of the allegations of misconduct between Mark and A.B. either before or during that soccer camp, nor are there any allegations or evidence that any incidents of sexual misconduct during that week were "committed on the employer's premises," Ehrens, 385 F.3d at 235, i.e., in locations linked in any way to Direct Kick Soccer. See Spinella Decl. Ex. A (A.B. Depo.) at 342:16-24 (inappropriate acts during those five or six days occurred in Mark's home).
Therefore, summary judgment is granted to Direct Kick Soccer and Walkley.
In light of the Court's dismissal of Plaintiffs' claims asserted against all Defendants except for Mark (who did not file a motion for summary judgment), the cross-claims for contribution and indemnification asserted by Turrin, Direct Kick Soccer, Walkley, and Paula
For the above-stated reasons, Defendants' motions for summary judgment (Docket ##66, 69, 72, 75) are granted. The action is dismissed as against Paula Staropoli, Clarkstown Soccer Club, Nicholas Arcuri, Margaret Turrin, Direct Kick Soccer, and Robert Walkley.
Ascher Decl. Ex. DD.
Neither of these incidents involved behavior similar to that engaged in by Mark. The first involved allegations of unspecified "inappropriate behavior" by the travel team coach "in his capacity as coach of a female soccer team at a local public high school," not in his capacity as a coach for Clarkstown Soccer Club. Moreover, this alleged behavior was being investigated by the school. In the second alleged incident, a female player actually stayed, presumably overnight, in the same hotel room as the coach, and she was not alone with the coach, but rather, was with the coach's daughter as well. In this case, there is no allegation that A.B. ever actually stayed overnight in the same hotel room as Mark, either alone or with his daughters. Moreover, there is no indication in the Board Minutes that the second incident involved any sexual misconduct on the part of the coach. Therefore, there is no basis to conclude that these allegations put Clarkstown Soccer Club, Arcuri, and Walkley on notice that a coach would sexually assault a player on several occasions during the course of a tournament trip, or over a period of months during which a player either guested for, or a was a member of, a Clarkstown Soccer Club team. Moreover, the Board Minutes do not reveal the identity of either of the coaches in question, and Plaintiffs provide no evidence that either incident involved Mark. Defendants knowing generally of the possibility that there could be an issue with respect to coaches engaging in misconduct with players, does not establish their liability with respect to the particular misconduct engaged in by Mark.
L.B. said he subsequently spoke to Arcuri and told him that the allegation of a relationship between A.B. and Mark was a "bunch of horse shit": "I got a phone call from, I believe it was Nick [Arcuri], and this was after the police had investigated, you know, and talked to me and talked to my daughter and talked to Mark, and essentially conveyed that there wasn't — they didn't see anything going on. And they had called me thereafter and it was, like, you know, here we go through this whole thing again and, you know, that was my impulsive, frustrated, you know, response to it." Id. at 93:9-25. L.B. noted that during that conversation, he did not ask Arcuri to limit in any way Mark's involvement with Clarkstown Soccer Club. Feinberg Reply Decl. Ex. AC (L.B. Depo.) at 143:21-24.
L.B. also testified that sometime in August or September, 2004, he received from Clarkstown Soccer Club copies of at least some of the anonymous letters that had been sent to the Club. Id. at 135-37. L.B. said that one of the letters indicated that there was a relationship between Mark and a young female on the Europe trip, and L.B. understood that letter to be referring to A.B. Id. at 136:15-22. L.B. testified that after receiving these letters, he spoke to both Mark and A.B. Id. at 137:2-9. L.B. stated that in August or September, 2004, after having seen the anonymous letters, having spoken to Mark, having spoken to A.B., and having spoken to the police, he "felt secure in the knowledge or the belief that there was nothing going on sexually between A.B. and Mark." Id. at 142:25-143:8.
Id. at 1.
