Montague v. Williams

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GRAY MONTAGUE, JONAH DOE, JAKE DOE,

RON DOE, and JOSH DOE,

MEMORANDUM & ORDER

Plaintiffs, 21-CV-4054 (MKB)

v.

WILLIAM M. WILLIAMS, RALPH DUPEE, and

POLY PREP COUNTRY DAY SCHOOL,

Defendants.

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MARGO K. BRODIE, United States District Judge:

Plaintiffs Gray Montague, Jonah Doe, Jake Doe, Ron Doe, and Josh Doe commenced this

action on July 19, 2021 against Defendants William M. Williams, Ralph Dupee, and Poly Prep

Country Day School pursuant to the New York Child Victim Act (“CVA”), which created a two-

year revival window for previously time-barred childhood sexual abuse claims. (Compl. ¶ 10,

Docket Entry No. 1; see N.Y. C.P.L.R. § 214-g.) Plaintiffs alleged that from 1966 to 1991,

Defendants engaged in a conspiracy to conceal and cover up the sexual abuse of multiple male

students by Poly Prep’s late football coach, Philip Foglietta (Compl. ¶¶ 3–4.) On March 14,

2022, Plaintiffs filed a corrected Amended Complaint, alleging claims of negligence, gross

negligence, willful misconduct, negligent supervision and training, negligent retention, and

negligent hiring. (Am. Compl., Docket Entry No. 47.)

Defendants move to dismiss the Amended Complaint on the grounds that the CVA is

unconstitutional under the due process clause of the New York state constitution, Plaintiffs’

claims are impermissibly duplicative, and that Plaintiffs failed to state a claim pursuant to Rule

12(b)(6).1 For the reasons explained below, the Court denies Defendants’ motion to dismiss.

I. Background

The Court assumes the truth of the factual allegations in the Amended Complaint for the

purpose of deciding Defendants’ motion.

a. Football coach Philip Foglietta

Plaintiffs contend that in or about 1965 or 1966, Poly Prep hired Foglietta as a football

coach, basketball coach, baseball coach and physical education instructor for students in the fifth

grade through twelfth grade. (Am. Compl. ¶ 32.) From 1966 to 1991, Foglietta allegedly

sexually abused more than a hundred boys from the ages of nine to seventeen years old, near or

on the premises of Poly Prep. (Id. ¶¶ 34–35.) Foglietta became the head coach of the Poly Prep

varsity football team and often recruited vulnerable boys to work as managers of the team where

they would be required to spend considerable time alone with Foglietta (Id. ¶¶ 36–37.)

Plaintiffs contend that Foglietta used his access to and authority over the managers to sexually

abuse many of them. (Id. ¶ 38.) Plaintiffs also contend that Foglietta sexually abused numerous

minor boys during Poly Prep’s Summer Day Camp at which Foglietta worked as a counselor.

(Id. ¶¶ 41–42.)

1 (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), Docket Entry No. 52; Defs.’ Mem. in Supp. of

Defs.’ Mot. (“Defs.’ Mem.”), Docket Entry No. 52-1; Pls.’ Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”),

Docket Entry No. 53; Defs.’ Reply in Supp. of Defs.’ Mot. (“Defs.’ Reply”), Docket Entry No.

55.)

b. Foglietta’s alleged sexual abuse of Plaintiffs

i. Montague

Plaintiffs contend that Foglietta sexually abused Montague more than twenty times from

1975–1979 by fondling his privates, performing oral sex on him, and committing anal rape. (Id.

¶¶ 47–48.) This abuse occurred on the grounds of Poly Prep including Foglietta’s “cage” office

in the bowels of the boys’ locker room, the boys’ locker room, the shower room, the gymnasium

building, and in Foglietta’s vehicle parked on or adjacent to Poly Prep. (Id. ¶ 49.) Foglietta also

sexually abused Montague at his apartment in Bay Ridge. (Id. ¶ 50.)

Montague complained to Michael Novello, a high-ranking administrator at Poly Prep, (id.

¶¶ 25–27); Williams, the Headmaster of Poly Prep from 1970 to 2000 (id. ¶¶ 20–21); and Dupee,

a teacher, coach, and high-ranking administrator at Poly Prep (id. ¶¶ 22–24), numerous times in

or about 1976 to 1980. (Id. ¶ 52.) Each Poly Prep administrator responded to Montague’s

complaints with hostility and threatened to expel him. (Id. ¶ 53.)

As a result of Foglietta’s alleged sexual abuse, Montague suffered physical injuries and

suffered and continues to suffer from severe emotional anguish and mental pain and suffering.

(Id. ¶ 56.) In or about 1976 or 1977, when in eighth grade, Montague first attempted to take his

own life and then subsequently tried to commit suicide on two other occasions. (Id. ¶¶ 57–58.)

Montague has battled alcohol and drug addictions his entire life, committed crimes, battled

severe depression and other mental health issues, struggled to maintain close and intimate

personal relationships, and struggled to maintain and retain consistent employment as a result of

Foglietta’s sexual abuse. (Id. ¶¶ 59–65.)

ii. Jonah Doe

Jonah Doe enrolled at Poly Prep on a work-study financial aid package and worked in

some capacity with the football team by setting up game films. (Id. ¶¶ 68–69.) Jonah Doe

became a manager of the football team at Foglietta’s urging. (Id. ¶ 71.) Jonah Doe contends that

Foglietta abused him more than 100 times from 1981 to 1985. (Id. ¶¶ 71–74.) The alleged

sexual abuse occurred at various locations on the grounds of Poly Prep including Foglietta’s cage

office, the equipment room, and the coaches’ locker room. (Id. ¶ 77.)

In 1984, Poly Prep’s Athletic Director, Harlow Parker, walked into the equipment room

while Foglietta was sexually abusing Jonah Doe. (Id. ¶ 79.) Parker and Poly Prep allegedly took

no action in response to Parker’s direct observation. (Id. ¶ 79.) In addition, Plaintiffs contend

that Poly Prep’s Director of Physical Education, Edward Ruck, walked into the coaches’ locker

room and observed Foglietta showering with and inappropriately touching Jonah Doe and two

other Poly Prep students; Poly Prep took no action in response to Ruck’s observation. (Id. ¶ 80.)

Jonah Doe contends that due to Foglietta’s sexual abuse, Jonah Doe suffered physical

injuries and suffered, and continues to suffer, from severe emotional anguish and mental pain

and suffering. (Id. ¶ 82.) Jonah Doe also faced severe and crippling depression and considered

suicide when Foglietta’s alleged sexual abuse was publicized in New York tabloids in 2006. (Id.

¶ 83.) Due to the alleged abuse, Jonah Doe has battled alcohol and drug abuse, severe

depression, low self-esteem, strained familial relationships, professional underperformance, and

substantial expenses for therapy. (Id. ¶¶ 84–90.)

iii. Jake Doe

Jake Doe attended Poly Prep on a work-study financial aid package and played football

for all four years where he encountered Foglietta (Id. ¶¶ 93–94.) Foglietta massaged Jake Doe

regularly in the Poly Prep training room, but those massages turned into sexual abuse. (Id. ¶ 94.)

Jake Doe encountered Foglietta on the basketball and baseball teams as well, and when Jake Doe

struggled against Foglietta, Foglietta allegedly admonished him and told him, “this is what all

professional athletes do,” and “[t]his is normal.” (Id. ¶ 95.) Jake Doe contends that Foglietta

abused him twenty-five times from 1977 to 1979 on the grounds of Poly Prep including a large

training room, a smaller training room, the squash courts, and the fieldhouse. (Id. ¶¶ 97, 101.)

In or about 1978, Poly Prep’s equipment manager, “Willy,” walked into the training room

while Foglietta was allegedly sexually abusing Jake Doe but did not intervene. (Id. ¶ 103.)

Foglietta’s alleged sexual abuse of Jake Doe led to severe physical injuries and emotional

anguish and mental pain and suffering that continues to this day. (Id. ¶ 105.) Jake Doe has

battled severe depression and low self-esteem, has had difficulty maintaining close interpersonal

relationships, and has underperformed scholastically and professionally. (Id. ¶¶ 106–110.)

iv. Josh Doe

Josh Doe played basketball during his freshman year and was coached by Foglietta and

had Foglietta as a physical education teacher. (Id. ¶¶ 118–119.) During one class, Foglietta

allegedly placed his hand down Josh Doe’s shorts. (Id.) Foglietta often had other Poly Prep

teachers and coaches pull Josh Doe out of class and direct him to visit Foglietta in his cage office

where he would then be sexually abused. (Id. ¶ 120.) Josh Doe contends that Foglietta sexually

abused him more than 100 times from 1976 to 1979, including touching and fondling Josh Doe’s

genitals, and masturbating Josh Doe, which occurred at various locations on the grounds of Poly

Prep including Foglietta’s cage office, the squash courts, training room, and the wrestling room.

(Id. ¶¶ 113–117.)

Josh Doe’s grades at Poly Prep struggled as a result of Foglietta’s alleged ongoing sexual

abuse and after his tenth grade year, Poly Prep expelled Josh Doe for deficient grades. (Id. ¶¶

121–124.) As a result of the sexual abuse, Josh Doe suffered physical injuries and continues to

suffer from emotional anguish and mental pain and suffering. (Id. ¶ 126.) Josh Doe has battled

alcohol and drug dependency, severe depression, and low self-esteem as a result of Foglietta’s

alleged sexual abuse, (id. ¶¶ 127–128); has struggled to maintain close and intimate relationships

and suffered the dissolution of his marriage due to an incident that triggered his traumatic

childhood experiences, (id. ¶¶ 129–133,); has difficulty maintaining employment, (id. ¶ 134,);

and suffers from serious health problems, (id. ¶ 135).

v. Ron Doe

Ron Doe contends that Foglietta sexually abused him more than thirty times over a one-

year period from 1975 to 1976, including touching and fondling his genitals and masturbating

him. (Id. ¶¶ 138, 140.) He contends that Foglietta abused him on the grounds of Poly Prep

including a room located across from the girls’ locker room, the squash courts, training room,

and the gymnasium. (Id. ¶ 141.) Ron Doe played on the basketball team and was coached by

Foglietta and allegedly sexually abused by him until Ron Doe aggressively rebuffed Foglietta’s

attempt to sexually abuse him. (Id. ¶¶ 143–144.)

Plaintiffs contend that, as a result of Foglietta’s alleged abuse, Ron Doe has suffered from

male anorgasmia his whole life which has caused substantial damage to every romantic or sexual

relationship that he has ever had and has caused him extreme mental anguish, emotional distress,

and mental pain and suffering. (Id. ¶¶ 147, 151–153.) Ron Doe suffered physical injuries and

suffered and continues to suffer from severe emotional anguish and mental pain and suffering.

(Id. ¶ 148.) In addition, Ron Doe has struggled with severe depression and anxiety, sleeping

disorders, and alcohol and drug abuse. (Id. ¶¶ 149–150.) As a result of Foglietta’s alleged

sexual abuse, Ron Doe has struggled to maintain close and intimate personal relationships with

women and has struggled with sexual dysfunction throughout this entire life. (Id. ¶¶ 151–153.)

c. Poly Prep administrators’ knowledge of Foglietta’s alleged sexual abuse

Plaintiffs contend that Poly Prep administrators and officials had actual and constructive

notice of Foglietta’s alleged sexual abuse of numerous minor boys at or near Poly Prep but

condoned the behavior because Foglietta was a successful football coach and instrumental in

raising substantial revenue for the school. (Id. ¶¶ 154–155.) Numerous individuals from 1966 to

1991 came forward to Poly Prep’s administrators, officials, and/or faculty members and

complained about Foglietta’s alleged sexual abuse of children, including numerous Poly Prep

students and their family members. (Id. ¶ 156.) In addition, “numerous Poly Prep

administrators, officials, and faculty members personally observed Foglietta sexually abusing

minor boys.” (Id. ¶ 157.)

William Jackson, a plaintiff in a related case against Poly Prep involving Foglietta’s

alleged sexual abuse, Zimmerman v. Poly Prep Country Day School (“Zimmerman”), 888 F.

Supp. 2d 317 (E.D.N.Y. 2012), was allegedly sexually abused by Foglietta on multiple occasions

in 1966.2 (Id. ¶¶ 161–163.) Jackson notified his parents, David and Jean Jackson, who arranged

for Jackson to tell his story of abuse to Poly Prep during a meeting with the then-Headmaster J.

Folwell Scull and Athletic Director Parker. (Id. ¶ 164.) Poly Prep undertook action to conceal

and cover up the sexual abuse by conducting a sham investigation, falsely notifying Jackson and

his parents that they had completed a thorough investigation and concluded that Jackson’s

allegations were not credible, that Jackson was required to cease and desist from making

allegations against Foglietta, and that Jackson would face severe consequences if he failed to do

2 The Zimmerman case settled in 2012. (Defs.’ Mem. 17–18.)

so. (Id. ¶ 168.) Foglietta allegedly continued to sexually abuse Jackson and Jackson complained

again, but was informed that his charges were not credible and he faced threatened expulsion.

(Id. ¶ 169.)

In 1970, when Williams became the new Poly Prep Headmaster, he was informed by the

previous Headmaster, Scull, and the Poly Prep Board of Trustees of the complaints made by

Jackson and others that Foglietta had sexually abused them and other students at Poly Prep. (Id.

¶ 174.) In or about May of 2002, Poly Prep was contacted by a lawyer for David Hiltbrand, a

former Poly Prep student and a plaintiff in the related case against Poly Prep, who had sent a

letter to Williams in February of 1991 stating that Foglietta allegedly sexually abused him when

he was a Poly Prep student in 1966. (Id. ¶ 175.) Williams discarded that letter, but another copy

was provided to Poly Prep. (Id. ¶ 176.)

In May of 2022, Poly Prep’s Board of Trustees directed Williams to draft a memorandum

which outlined his response to the Hiltbrand letter. (Id. ¶ 177.) Williams wrote in the first

memorandum: “The only awareness during the [twenty] years prior to 1991 came from an

unsigned letter from a parent accusing Coach Foglietta of molesting students. I showed the letter

to him and he, of course, denied the allegation.” (Id. ¶ 178.) However, in a second draft of the

letter, Williams stated: “The only reports I had received during my [twenty] years at Poly prior to

David’s letter were two unsigned letters from parents (possibly the same one) who reported that

that [sic] children had been abused by Coach Foglietta I showed one of the letters to Coach

Foglietta and he denied the accusation.” (Id. ¶ 182.) Poly Prep was therefore aware that

Williams had received at least two letters that accused Foglietta of sexual misconduct. (Id. ¶

183.) In the early 1970s, Williams confronted Foglietta about a letter accusing him of sexual

abuse, and Foglietta threatened to file a defamation lawsuit if Poly Prep disseminated those

allegations. (Id. ¶ 185.) Around that same time, Williams received at least one phone call from a

woman who accused Foglietta of doing “terrible things” to Poly Prep students. (Id. ¶ 186.)

d. Foglietta’s alleged propensity to interfere with his victims’ educations

Plaintiffs contend that Foglietta often forced his victims to miss classes or pulled them

out of classes they were attending to sexually abuse them. (Id. ¶ 188.) One or more of

Foglietta’s victims was contacted by Parker and/or Williams with respect to their unexcused

absences from classes and failing grades. (Id. ¶ 189.) Foglietta then contacted Parker and/or

Williams and told them to “stop harassing” his victims and both Parker and Williams acceded to

Foglietta’s demands. (Id. ¶ 190.)

e. Other allegations

A number of other individuals, named and anonymous, alleged sexual abuse or

knowledge of sexual abuse by Foglietta while at Poly Prep.

John Marino was on the Poly Prep football team and rebuffed Foglietta’s attempts to

sexually abuse him. (Id. ¶ 193.) He alleged that Foglietta frequently verbally abused and

harassed him. (Id. ¶ 194.) On multiple occasions, Marino saw Foglietta sexually abusing boys

on or near the Poly Prep grounds, (id. ¶ 195), and on one occasion, Marino’s father also

witnessed Foglietta sexually abusing a child, (id. ¶ 196). In or about 1973, Marino and his

parents met at Poly Prep with Williams and Parker to tell them that Foglietta was sexually

abusing boys at Poly Prep, but Williams and Parker dismissed their concerns and threatened to

expel Marino. (Id. ¶¶ 197–200.) In or about 1974, Marino’s parents again met with Williams

and Parker, but Williams and Parker denied the allegations again and threatened to expel Marino.

(Id. ¶¶ 201–203.)

John Doe II, a plaintiff in the Zimmerman case, was sexually abused by Foglietta in the

boys’ showers and Parker witnessed the abuse but took no action. (Id. ¶¶ 211–214.) In or about

1972 or 1973, John Doe II told a Poly Prep administrator, Robert Foreman, head of the lower

school, that Foglietta was “grabbing” boys, but no action was taken in response. (Id. ¶ 215.) At

some time in the mid-1970s, Williams was notified that Foreman too had inappropriately

touched several boys. (Id. ¶ 216.) Williams paid Foreman for a year of not attending work and

allowed his contract to expire without firing him or notifying anyone of the specific sexual

misconduct complaints against Foreman. (Id. ¶ 217.)

John Doe III, while in Foglietta’s apartment in 1971, opened a dresser drawer and saw

that the drawer was filled with photographs of naked boys. (Id. ¶ 220.) Foglietta tried to take

indecent photographs of John Doe III, as well. (Id. ¶ 222.)

Martin Weinstein attended Poly Prep Day Camp in or about the summer of 1972 and

alleged that he was repeatedly sexually abused by Foglietta (Id. ¶ 223.) Weinstein directly

notified Dupee, in his office at Poly Prep, that Foglietta had been “inappropriately touching him

during camp,” and that Foglietta was sexually abusing him. (Id. ¶¶ 224–225.) Dupee reacted

angrily and told Weinstein to “keep his mouth shut,” and did not take any further action. (Id. ¶¶

226–227.)

PC-41 Doe, a plaintiff in a separate lawsuit in the Eastern District of New York against

Poly Prep, Williams, and Novello, alleged that Foglietta abused him at Poly Prep from 1976

through 1983.3 (Id. ¶ 228.) PC-41 Doe alleged in that complaint that he told a Poly Prep

homeroom and music teacher about Foglietta’s inappropriate conduct and was told his behavior

would be looked into, but nothing came of it. (Id. ¶¶ 229–230.)

3 The PC-41 Doe case is still active. PC-41 Doe v. Poly Prep Country Day Sch., 590 F.

Supp. 3d 551 (E.D.N.Y. 2021).

J. Forest Vey worked as a shop teacher at Poly Prep in the 1970s and 1980s. (Id. ¶ 231.)

Two of Vey’s sons attended Poly Prep. (Id.) In December of 1976, Vey stormed into Williams’

office at Poly Prep and confronted him about Foglietta’s alleged sexual abuse of Poly Prep

students. (Id. ¶ 232.) Vey told Williams to get rid of Foglietta, to which Williams replied, “I

can’t do that. My hands are tied.” (Id. ¶¶ 233–234.)

John Doe V, another plaintiff in the Zimmerman case, was allegedly sexually abused by

Foglietta in or about 1974 at Poly Prep Day Camp. (Id. ¶ 235.) A Poly Prep faculty member

entered the classroom where John Doe V was being abused and did not take any further action in

response to the observation. (Id. ¶ 236.)

In or about 1976 or 1977, Montague told Dupee that Foglietta was inappropriately

touching him and making him “uncomfortable.” (Id. ¶¶ 237–238.) Dupee replied that Montague

was in trouble for that accusation and did not take any further action regarding Foglietta (Id.) In

or about 1977 or 1978, Montague told Novello that “Foglietta was sexually abusing him during,

shortly before, or shortly after, his team’s athletic practices,” (id. ¶ 240), but Novello told

Montague that he would be expelled if he persisted in his allegations, (id. ¶¶ 241–242). In or

about 1979 or 1980, Montague told Williams that Foglietta had sexually abused him at Poly

Prep, to which Williams reacted angrily and threatened to expel him and did not take any further

action. (Id. ¶¶ 245–247.)

In or about 1984, Parker witnessed Jonah Doe being sexually abused by Foglietta in the

equipment room, but took no action to stop the assault, punish Foglietta, or protect Jonah Doe or

other Poly Prep students. (Id. ¶¶ 249–251.) In addition, Ruck, Poly Prep’s director of physical

education, witnessed Foglietta showering with and inappropriately touching Jonah Doe and two

other Poly Prep students but took no action in response. (Id. ¶ 252.)

f. Poly Prep’s coverup and spoilation of evidence

Plaintiffs contend that Poly Prep deliberately destroyed or discarded the following

documents:

(1) the letters received in the early 1970s by Defendant Williams

which accused Foglietta of sexual misconduct; (2) the original letter

of David Hiltbrand, dated February 20, 1991, to Defendant

Williams, which specifically and directly accused Foglietta of

sexually abusing David Hiltbrand and other students; (3) a letter

stuffed in various faculty mailboxes in 1990/1991, given to

Defendant Williams by Sharyn Dolan (a POLY PREP faculty

member), which directly accused Foglietta of sexually abusing

students; and (4) all copies and/or the originals of the investigative

notes of Peter T. Sheridan, Esq., an attorney hired by POLY PREP

in 2002 to investigate, inter alia, the knowledge of POLY PREP’s

administrators and faculty as to Foglietta’s sexual abuse of minor

children and students at POLY PREP.

(Id. ¶ 253.) In addition, Poly Prep, and/or its employees or agents, destroyed or discarded or

failed to generate or produce any documents regarding:

(1) [Poly Prep’s] investigation of, and/or response to, [Jackson’s]

1966 allegations of sexual misconduct by Foglietta; (2) [Poly

Prep’s] investigation of, and/or response to, various letters and/or

phone calls (received in the 1970s) which accused Foglietta of

sexual misconduct and other inappropriate conduct; (3) [Poly

Prep’s] investigation of, and/or response to, . . . Marino’s 1973 and

1974 allegations of sexual misconduct by Foglietta; (4) [Poly

Prep’s] investigation of, and/or response to, J. Forest Vey’s

accusations of sexual misconduct against Foglietta; (5) [Poly Prep’s]

investigation of, and/or response to, [Montague’s] multiple sexual

abuse allegations against Foglietta; (6) [Poly Prep’s] investigation

of, and/or response to . . . Parker’s personal observances of Foglietta

sexually abusing two [Poly Prep] students (in 1972 and 1984); (7)

all minutes, audiotape or videotape recordings, or other documents

created or generated by Poly Prep’s Board of Trustees in 1991, when

[Poly Prep] decided to terminate Foglietta’s employment because of

his sexual misconduct; (8) all minutes, audiotape or videotape

recordings, or other documents created or generated by [Poly Prep’s

Board of Trustees] (or the Board of Trustees’ Subcommittee on

Sexual Misconduct) in 2002 during its so-called ‘investigation’ of

allegations of sexual abuse by Foglietta; and (9) all documents

created or generated by Peter Sheridan, Esq., Roderick MacLeish,

Esq., Jeffrey Newman, Esq., and/or Greenberg Traurig, LLP, in

connection with their investigation or review of sexual abuse

allegations at or concerning [Poly Prep], from 2002 to present.

(Id. ¶ 254.)

g. Foglietta’s leave from Poly Prep

In the Zimmerman case, various Poly Prep officials testified that in 1991, Poly Prep fired

Foglietta based on the Hiltbrand letter in which Hiltbrand informed Williams that he had been

sexually abused by Foglietta at Poly Prep in 1966. (Id. ¶ 255.) Williams did not respond to

Hiltbrand’s letter, and Hiltbrand left telephone messages which were never returned. (Id. ¶ 257.)

Ultimately, Williams spoke to Hiltbrand on the phone but told him he did not reply to his letter

because he had hurt his hand while skiing. (Id. ¶ 258.) In the Zimmerman case, Williams

testified that after he received Hiltbrand’s letter, he convened a meeting with Parker, Ruck, and

other Poly Prep athletic department staff who attended the school in the early 1970s to ascertain

if anyone knew anything about Foglietta’s alleged sexual abuse. (Id. ¶ 259.) However, Plaintiffs

allege that this group meeting never actually occurred, and that Williams and other Poly Prep

officials manufactured this narrative to advance their defense in the Zimmerman case. (Id. ¶¶

259–260.)

Plaintiffs contend that this testimony is demonstrably false because Parker had retired

from Poly Prep in 1987 which was four years before the alleged meeting, and Ruck testified that

(1) he had no recollection of any group meeting to discuss the Hiltbrand letter and (2) Williams

never asked him whether he had any knowledge regarding Foglietta’s sexual abuse. (Id. ¶ 261.)

Plaintiffs further contend that Foglietta was not terminated until Foglietta allegedly repeatedly

sexually abused a separate student in the Spring of 1991, and that student told numerous football

coaches and his parents, and his parents threatened to publicly expose Foglietta and Poly Prep.

(Id. ¶¶ 265–270.) Upon Foglietta’s “retirement,” Poly Prep celebrated Foglietta with a lavish

retirement dinner in New York City and Williams gave the invocation at the retirement

celebration. (Id. ¶ 274.)

h. Consequences of Foglietta’s alleged sexual abuse

At least five former Poly Prep students who attended Poly Prep in the 1970s and/or 1980s

and were allegedly sexually abused by Foglietta committed suicide. (Id. ¶ 280.) All of the

Plaintiffs in this action seriously entertained thoughts of suicide at various times. (Id. ¶ 281.) In

or about 1977 or 1978, when Montague was in eighth grade and after he had been allegedly

raped by Foglietta, he attempted to hang himself in his bathroom in his home and attempted to

commit suicide two other times in his life. (Id. ¶¶ 283–284.) In or about 2006, when New York

tabloids ran stories on Foglietta’s sexual abuse, Jonah Doe fell into a severe depression and

seriously contemplated suicide. (Id. ¶ 282.)

i. Procedural background

Plaintiffs commenced this action on July 19, 2021 against Defendants pursuant to the

CVA, which created a two-year revival window for previously time-barred childhood sexual

abuse claims. (Compl. ¶ 1; see N.Y. C.P.L.R. § 214-g.) Plaintiffs alleged that from 1966 to

1991, Defendants engaged in a conspiracy to conceal and cover up the sexual abuse of multiple

male students by Foglietta (Id. ¶¶ 3–4.) On March 14, 2022, Plaintiffs filed a corrected

Amended Complaint alleging claims of negligence, gross negligence, willful misconduct,

negligent supervision and training, negligent retention, and negligent hiring. (Am. Compl.)

Defendants move to dismiss the Amended Complaint on the grounds that: (1) the CVA is

unconstitutional under the due process clause of the New York state constitution; (2) Plaintiffs’

claims are impermissibly duplicative; and (3) Plaintiffs failed to state a claim pursuant to Rule

12(b)(6).4 (See Defs.’ Mem.)

II. Discussion

a. Standard of review

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a court “must construe [the complaint] liberally, accepting all factual allegations

therein as true and drawing all reasonable inferences in the plaintiffs’ favor.” Sacerdote v. N.Y.

Univ., 9 F.4th 95, 106–07 (2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d

Cir. 2019); see also Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020)

(same). A complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Bacon v. Phelps, 961 F.3d 533,

540 (2d Cir. 2020) (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Cavello Bay Reinsurance Ltd. v. Shubin

Stein, 986 F.3d 161, 165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678). Although all

allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678; Vaughn, 957 F.3d at 145 (quoting Iqbal, 556 U.S. at 678).

b. The CVA’s revival provision is constitutional under the due process clause of

the New York state constitution

Defendants argue that the CVA’s revival provision is unconstitutional for several reasons.

First, Defendants argue that New York’s due process protections are older and stricter than their

4 Defendants also initially argued that the anonymous Plaintiffs’ claims should be

dismissed pursuant to Federal Rules of Civil Procedure 10(a) because they failed to seek leave of

the Court to proceed under pseudonyms. (Defs.’ Mem. 22–23.) Defendants have since agreed

that the Doe Plaintiffs may proceed anonymously. (Defs.’ Reply 1 n.1.)

federal counterparts because they predate the founding of the United States and provide vital

protections to defendants who have the right to know what claims might be brought against

them. (Defs.’ Mem. 6–8.) Second, Defendants argue that New York courts require a revival

statute to “remedy an injustice” which involves remedying a circumstance that made timeliness

physically impossible in the first place. (Id. at 8–11.) In support, Defendants argue that

whenever New York courts have held that a claim revival statute is constitutional, each of those

cases involved a situation where individuals were faced “with a total and complete, practical

inability to bring their claims during the allotted time.” (Id. at 9.) Further, Defendants argue that

the New York Court of Appeals has already determined that claims in connection with

allegations of sexual abuse that arose when individuals were minors could have been brought in

a timely manner. (Id. at 11–13.) Third, Defendants argue that recent, non-binding federal

district court decisions upholding the CVA were wrongly decided. (Id. at 13–16.) In support,

they argue that these cases “contained cursory reasoning,” “did not engage with key precedent,”

and “wrongly deferred to the legislature rather than conducting judicial review of the CVA’s

constitutionality.” (Id. at 13–14.) Lastly, Defendants argue that the CVA is not a “reasonable

response to remedy an injustice” because it is unfair to Defendants. (Id. at 17–18.) Specifically,

they argue that there is a strong public policy favoring statute of limitations which gives

defendants a fair opportunity to defend claims against them before their ability to do so has

deteriorated and because the CVA resurrects claims, “some decades old, where documents and

witnesses are long gone making defense impossible,” it is not a reasonable response to remedy

an injustice. (Id.)

Plaintiffs argue that the CVA is constitutional under New York law. First, Plaintiffs

argue that “in nearly 100 years, the Court of Appeals has never struck down a claim-revival

statute.” (Pls.’ Opp’n 9–10, 14–19.) In support, they argue that the Court of Appeals has stated

the correct rule for evaluating claim-revival statutes is “deferential to the [l]egislature” and only

requires that the statute “was enacted as a reasonable response in order to remedy an injustice.”

(Id. at 10 (citation omitted).) Specifically, Plaintiffs argue that the CVA was only a “one-year

revival of claims for child sexual abuse” so it “easily passes constitutional muster.” (Id.)

Second, Plaintiffs argue that the legislative history accompanying the passage of the CVA

indicates that the victims who could have brought such claims did not have the ability to do so

because of “psychological scars” which “disabled them from suing until well into their adult

years.” (Id. at 10–12.) Third, Plaintiffs argue that the New York Court of Appeals in Zumpano

v. Quinn, 6 N.Y.3d 666 (2006), called for the New York legislature to pass a claim revival

statute. (Id. at 12.) In support, Plaintiffs point to language from Zumpano stating that “[a]ny

exception to be made to allow these types of claims to proceed outside of the applicable statutes

of limitations would be for the Legislature,” and also cite to a footnote where the Court of

Appeals cited approvingly to other states’ claim revival statutes regarding sexual abuse victims.

(Id. at 12–13.) Fourth, Plaintiffs argue that the case Defendants rely on, Matter of World Trade

Center Lower Manhattan Disaster Site Litigation, 30 N.Y.3d 377 (2017), to support their

argument that the Court of Appeals only upholds claim-revival statutes for claims that were

physically impossible to bring in the first place, was vacated and its reasoning explicitly rejected

by the Court of Appeals. (Id. at 14.) Specifically, the Court of Appeals, upon a question

certified from the Second Circuit, determined that the correct standard for a claim-revival statute

is far more permissive and deferential than what Defendants argue: “a reasonable response to

remedy an injustice.” (Id. at 19.) Fifth, Plaintiffs argue that New York state and federal courts

have consistently upheld the New York CVA as constitutional. (Id. at 19–23.) In support,

Plaintiffs cite to cases upholding the CVA as constitutional, including PC-41 Doe v. Poly Prep

Country Day School, 590 F. Supp. 3d 551 (E.D.N.Y. 2021), appeal dismissed, No. 21-CV-2669,

2022 WL 14807756 (2d Cir. May 3, 2022), in which a judge in this district permitted similar

claims, brought under the CVA and against Poly Prep, to proceed past the motion to dismiss

stage. (Id. at 20–21.) Lastly, Plaintiffs argue that Defendants’ argument that revival of

Plaintiffs’ claims is unfair and prejudicial is baseless because there is nothing unfair or

prejudicial in allowing Plaintiffs to finally be able to prosecute legal claims against Defendants

given Defendants’ decades-long misconduct. (Id. at 23–24.)

“[A] claim-revival statute will satisfy the Due Process Clause of the [New York] State

Constitution if it was enacted as a reasonable response in order to remedy an injustice.” In re

World Trade Ctr., 30 N.Y.3d at 400; see also Carroll v. Trump, No. 22-CV-10016, 2023 WL

185507, at *9 n.40 (S.D.N.Y. Jan. 13, 2023) (same); Giuffre v. Andrew, 579 F. Supp. 3d 429, 453

(S.D.N.Y. 2022) (same); Farrell v. U.S. Olympic & Paralympic Comm., 567 F. Supp. 3d 378,

391 (N.D.N.Y. 2021) (same); PC-41 Doe, 590 F. Supp. 3d at 558 (same).

The Legislative Memorandum accompanying the CVA bill, justifies passage for the Act

as follows:

New York is one of the worst states in the nation for survivors of

child sexual abuse. New York currently requires most survivors to

file civil actions or criminal charges against their abusers by the age

of 23 at most, long before most survivors report or come to terms

with their abuse, which has been estimated to be as high as 52 years

old on average. Because of these restrictive statutes of limitations,

thousands of survivors are unable to sue or press charges against

their abusers, who remain hidden from law enforcement and pose a

persistent threat to public safety. This legislation would open the

doors of justice to the thousands of survivors of child sexual abuse

in New York State by prospectively extending the statute of

limitations . . . . Passage of the Child Victims Act will finally allow

justice for past and future survivors of child sexual abuse, help the

public identify hidden child predators through civil litigation

discovery, and shift the significant and lasting costs of child sexual

abuse to the responsible parties.

Legis. Mem. (“CVA Sponsor’s Mem.”), 2019, N.Y. Sess. Laws (Advance Sheets A-39)

(McKinney).

Although the Second Circuit has yet to opine on the constitutionality of the CVA, every

federal and state court to consider the issue has found it constitutional. See, e.g., Andrew, 579 F.

Supp. 3d at 453 (“Defendant is not the first litigant to advance this argument [that the CVA is

unconstitutional], which has been rejected by every New York state and federal court to have

encountered it. And it has been rejected repeatedly for good reason.”); Farrell, 567 F. Supp. 3d

at 393 (“[T]he Court finds that the CVA is a constitutional revival statute designed to remedy an

injustice; and, consequently, it does not violate either the New York or federal Due Process

Clauses.”); PC-41 Doe, 590 F. Supp. 3d at 558 (“[T]he CVA, which afforded victims of

childhood sexual abuse a limited period of time within which to pursue their claims of sexual

abuse through the judicial system, was a reasonable, non-arbitrary response to remedy an

injustice and therefore satisfies the New York Due Process Clause.”); Giuffre v. Dershowitz, No.

19-CV-3377, 2020 WL 2123214, at *2–3 (S.D.N.Y. Apr. 8, 2020) (dismissing the argument that

the CVA is unconstitutional under New York or federal law); PB-36 Doe v. Niagara Falls City

Sch. Dist.,152 N.Y.S.3d 242, 248 (N.Y. Sup. Ct. 2021), aff’d, 182 N.Y.S.3d 850 (N.Y. App. Div.

2023); ARK3 Doe v. Diocese of Rockville Ctr., No. 900010/2019, 2020 N.Y. Misc. LEXIS 1964,

*15 (N.Y. Sup. Ct. May 11, 2020) (finding that “the [CVA] is a reasonable response to remedy

the injustice of past child sexual abuse” and “does not violate [the defendant’s] right to due

process under the New York State Constitution”); Torrey v. Portville Cent. Sch., 125 N.Y.S.3d

531 (N.Y. Sup. Ct. 2020) (“[T]he Court finds the [CVA] a reasonable response to remedy an

injustice. As such, it does not violate [the defendant’s] right to due process under the New York

State Constitution.”).

In Andrew, the court found that “New York’s modest two-year revival window was a

reasonable measure for remedying injustice to victims without treading upon the state

Constitution’s Due Process Clause.” 579 F. Supp. 3d at 454. The court stated that regardless of

“[w]hatever the historical practice” in New York regarding claim revival may have been, the

New York Court of Appeals recently “made clear that the test for whether a claim-revival statute

runs afoul of the New York Due Process Clause is simply whether the revival statute is ‘a

reasonable measure to address an injustice.’” Id. at 453 (quoting In re World Trade Ctr., 30

N.Y.3d at 400). The court found that “[t]he CVA’s limited claim-revival window was a

reasonable measure to address an injustice and well within bounds of the new legal standard

articulated shortly before its passage.” Id. In doing so, the court specifically rejected the

defendant’s argument that New York “precedent ma[de] clear that claim revival is permitted only

when there is an injustice of a type that makes a plaintiff legally unable to sue,” id. (emphasis in

original), because in light of recent Court of Appeals case law, “New York Courts’ historical

skepticism of claim-revival provisions appears to be just that; historical,” id. (quoting

Dershowitz, 2020 WL 2123214, at *2). In addition, the court found that “a range of legislative

judgments undergird the provision’s patent constitutionality,” including “New York’s

comparatively restrictive limitations period for sexual abuse claims, improved understanding of

victims’ barriers to coming forward with those claims, and the imminent threat that abusers pose

to public safety.” Id. at 454. The court also considered the defendant’s argument that the CVA

was a not a reasonable measure because the legislature “hastily passed legislation to amend the

CVA by doubling the claim-revival period from one year to two.” Id. The court found that

“New York’s modest two-year revival window was a reasonable measure for remedying injustice

to victims without treading upon the state Constitution’s Due Process Clause” because other

states “have opened revival windows that were two years or longer from their inception, some of

which were later extended for additional multiyear periods” and “[o]ther jurisdictions have

enacted indefinite claim-revival windows.” Id. The court concluded “[i]t is difficult to imagine

substantially narrower measures capable of addressing the injustices animating the CVA” than

“the measures . . . selected by the New York Legislature.” Id. at 455.

In PC-401 Doe, the court considered a similar claim under the CVA against Poly Prep,

Williams, and Novello regarding Foglietta’s sexual abuse. PC-41 Doe, 590 F. Supp. 3d at 555.

In concluding that the CVA is constitutional, the court rejected many of the arguments

Defendants now advance to this Court. Specifically, the court rejected the argument that the

CVA is not a “reasonable response” because claim revival statutes are only constitutional if they

covered a plaintiff that had “a total and practical inability to bring a timely claim.” Id. at 559

(internal quotation omitted). In addition, the court rejected the argument that the “CVA is

unreasonable because it reopened claims from long ago that may be difficult to defend,” because

that concern applies to any expired claim that could potentially be revived and such claims have

been found constitutional under New York law. Id. at 564.

In Farrell, the court rejected an argument that the CVA is unconstitutional because it

does not pass New York’s “stringent” test for claim revival and violated the defendant’s due

process rights. Farrell, 567 F. Supp. 3d at 391. The court relied on the reasoning in PC-41 Doe

and Dershowitz. Id. at 392–93 (“Accordingly, relying on the same reasons as those on which

New York courts and the courts in PC-41 Doe and [Dershowitz] relied, the Court finds that the

CVA is a constitutional revival statute designed to remedy an injustice; and, consequently, it

does not violate either the New York or federal Due Process Clauses.”). The court also

concluded that due process arguments such as “defendants do not have information regarding

prior reports of abuse, that witnesses may have died, and that memories may be impaired” are

“speculative and unsupported by personal knowledge.” Id. at 393.

The Court agrees with the other federal courts and New York state courts to consider the

constitutionality of the CVA — under New York state law, the CVA is a “reasonable response to

remedy an injustice” and therefore it passes muster under the New York Constitution’s due

process clause. In re World Trade Ctr., 30 N.Y.3d at 400; Sutton v. Marie, No. 21-CV-6787,

2022 WL 3904100, at *3 (S.D.N.Y. Aug. 30, 2022) (“The CVA revives claims ‘which would

constitute a sexual offense’ as defined in the ‘penal law’ under either Section 255.27, 255.26 or

255.25 or 263.05. N.Y. C.P.L.R. § 214-g.”). As stated by the Sponsor’s Memorandum in support

of the CVA: “This legislation would open the doors of justice to the thousands of survivors of

child sexual abuse in New York State by prospectively extending the statute of limitations . . . .”

(CVA Sponsor’s Memorandum at A-39.) In addition, the legislature’s enactment was a

“reasonable response” to the injustice because it “provides a means by which victims of

childhood sexual abuse can pursue their claims through the judicial system, and there is no

indication that the CVA is an arbitrary remedy.” PC-41 Doe, 590 F. Supp. 3d at 563.

Furthermore, the CVA only revived claims for a one-year period (extended to two years in

response to the COVID-19 pandemic) and one-year claim revival statutes have been condoned

by the Court of Appeals. See id. at 564 (citing cases); see also, e.g., Hymowitz v. Eli Lilly & Co.,

73 N.Y.2d 487 (1989); Gallewski v. Hentz & Co., 301 N.Y. 164, 172–75 (1950); Robinson v.

Robins Dry Dock & Repair Co., 238 N.Y. 271, 276–80 (1924).

Defendants’ arguments to the contrary are unavailing or persuasive. First, the Court of

Appeals has not held that claim revival statutes are only constitutional if timeliness of the initial

claim was “physically impossible.” (Defs.’ Mem. 8.) In fact, the Court of Appeals has rejected a

“more heightened standard” because it “would be too strict,” In re World Trade Ctr., 30 N.Y.3d

at 400, and instead has held that a claim revival statute will satisfy the due process clause if it

was “enacted as a reasonable response in order to remedy an injustice.” Id. Defendants’

argument that the Court of Appeals in Zumpano determined these claims could have been

brought in a timely manner fails for the same reason. (Defs.’ Mem. 11–12.) In Zumpano, a case

predating the CVA, the Court of Appeals rejected the plaintiffs’ argument that they should be

permitted to bring claims with allegations of child sexual abuse because they were time-barred.

Zumpano, 6 N.Y.3d at 673. The Court of Appeals noted that plaintiffs could have brought their

claims in a timely manner. Id. However, Zumpano did not address the CVA because it predated

it, and the Court of Appeals made clear that the legislature could revive the claims it was

dismissing. Id. at 677 (“However reprehensible the conduct alleged, these actions are subject to

the time limits created by the Legislature. Any exception to be made to allow these types of

claims to proceed outside of the applicable statutes of limitations would be for the Legislature, as

other states have done.”); see also Carroll, 2023 WL 185507, at *9 n.40 (“World Trade Ctr. left

the determination of the existence of the necessary injustice at least substantially, and perhaps

entirely, to the judgment of the elected branches of government.”).5

The Court concludes that the CVA’s revival provision is constitutional under the due

process clause of the New York constitution and therefore denies Defendants’ motion to dismiss

on that ground.

5 Defendants’ reliance on Regina Metro Co., LLC v. New York State Div. of Hous. &

Cmty. Renewal, 35 N.Y.3d 332 (2020) is also misplaced. (Defs.’ Mem. 14–15.) Although the

Court of Appeals in Regina warned against the dangers of retroactive application of legislation,

Regina did not involve a claim-revival statute and is therefore inapposite to the case before the

Court.

c. Plaintiff’s claims are not duplicative

Defendants argue that Plaintiffs’ tort claims fail because they are impermissibly

duplicative. (Defs.’ Mem. 21–22.) In support, Defendants argue that Plaintiffs’ claims for

willful misconduct, negligent supervision and training, negligent retention, and negligent hiring

are based on the same factual allegations and seek the same relief as Plaintiffs’ claims for general

negligence and gross negligence. (Id.) Defendants argue that these claims are based on the same

set of facts and theory that “Poly Prep was allegedly negligent in its supervision and retention of

Foglietta.” (Id. at 22.)

Plaintiffs argue that the claims are not impermissibly duplicative because Plaintiffs are

entitled to plead alternative theories of negligence especially where the elements of the claims

differ. (Pls.’ Opp’n 24–29.) In support, Plaintiffs argue that their claims for negligent training

and supervision, negligent retention, and negligent hiring are not impermissibly duplicative of

their claims for general negligence and gross negligence because (1) in PC-41 Doe, the court

permitted claims for negligent hiring, retention, supervision, negligence, gross negligence, and

willful misconduct to proceed while dismissing other claims for being duplicative; and (2) New

York state courts have sustained independent causes of action for such claims. (Id.) In addition,

Plaintiffs argue their claim for willful misconduct is not impermissibly duplicative of their cause

of action for negligence or gross negligence because the claims have different elements. (Id. at

29–31.) Plaintiffs argue that gross negligence requires “a devil-may-care attitude or indifference

to duty amounting to recklessness,” while willful misconduct involves “a conscious indifference

or I don’t care attitude which is the prerequisite of wanton behavior.” (Id. at 30 (quoting PC-41

Doe, 590 F. Supp. 3d at 568).)

The Second Circuit has stated that “[t]wo claims are duplicative of one another if they

‘arise from the same facts and do not allege distinct damages.’” NetJets Aviation, Inc. v. LHC

Commc’ns, LLC, 537 F.3d 168, 175 (2d Cir. 2008) (quoting Sitar v. Sitar, 854 N.Y.S.2d 536,

538 (App. Div. 2008)); Deutsche Bank Nat. Tr. Co. v. Quicken Loans Inc., 810 F.3d 861, 869 (2d

Cir. 2015) (“Under New York law, claims are duplicative when both ‘arise from the same facts

and seek the identical damages for each alleged breach.’” (quoting Amcan Holdings, Inc. v.

Canadian Imperial Bank of Commerce, 894 N.Y.S.2d 47, 49–50 (App. Div. 2010))); Alan L.

Frank Law Assocs. v. OOO RM Inv., No. 17-CV-1338, 2020 WL 7022317, at *18 (E.D.N.Y.

Nov. 30, 2020) (“‘[I]t is not the theory behind a claim that determines whether it is duplicative,’

but rather the conduct alleged and the relief sought.” (quoting MIG, Inc. v. Paul, Weiss, Rifkind,

Wharton & Garrison, L.L.P., 701 F. Supp. 2d 518, 532 (S.D.N.Y. 2010)).

To establish a prima facie case of negligence under New York law, “a plaintiff must

prove (1) that the defendant owed her a duty; (2) that the defendant breached that duty; and (3)

that she suffered injuries proximately resulting from that breach.’” Coyle v. United States, 954

F.3d 146, 148 (2d Cir. 2020) (quoting Solomon ex rel. Solomon v. City of New York, 66 N.Y.2d

1026, 1027 (1985)). Gross negligence requires an additional allegation of “conduct that evinces

a reckless disregard for the rights of others or smacks of intentional wrongdoing,” specifically an

allegation of “a devil-may-care attitude or indifference to duty amounting to recklessness.” PC-

41 Doe, 590 F. Supp. 3d at 568 (quoting Taylor Precision Prod., Inc. v. Larimer Grp., Inc., No.

15-CV-4428, 2018 WL 4278286, at *18 (S.D.N.Y. Mar. 26, 2018)).

Although the negligent training and supervision, negligent retention, and negligent hiring

claims contain overlapping elements with a negligence claim, they also require slightly different

facts to be pleaded to make out each claim. A claim for negligent training and supervision

requires that (1) “[a] person not a parent who undertakes a duty to care for or supervise a child is

required to use reasonable care to protect the child from harm,” and (2) “may be liable for injury

proximately caused by his or her negligence in doing so.” Mary Anne “ZZ” v. Blasen, 726

N.Y.S.2d 767, 775 (App. Div. 2001). This differs from the elements for a general or gross

negligence claim because a negligent supervision claim is specifically about caring for a child

and protecting a child from harm.

A claim for negligent retention requires (1) “allegations that the defendant knew or

should have known of its employee’s propensity to engage in the conduct that caused the

plaintiff's injuries,” and (2) “that the alleged negligent supervision or retention was a proximate

cause of those injuries.” Gray v. Schenectady City Sch. Dist., 927 N.Y.S.2d 442, 445 (App. Div.

2011); see also Gonzalez v. City of New York, 17 N.Y.S.3d 12, 16 (App. Div. 2015) (“[W]hen

the retention of an officer may involve a risk of bodily harm to others, the government has a duty

to abate the risk of dangers to others.”). This differs from the elements required to prove a claim

of general or gross negligence because a claim of negligent retention requires a plaintiff to allege

that the defendant knew of the employee’s propensity to engage in harmful conduct and the

insufficient supervision or training caused harm. Unlike a claim for general or gross negligence,

a plaintiff need not prove that a defendant owed them a duty of care.

Finally, a claim of negligent hiring requires (1) “allegations that an employer knew of its

employee’s harmful propensities,” (2) “that it failed to take necessary action,” and (3) “that this

failure caused damage to others.” Waterbury v. New York City Ballet, Inc., 168 N.Y.S.3d 417,

423 (App. Div. 2022); see also Zanghi v. Laborers’ Int’l Union of N. Am., AFL-CIO, 778

N.Y.S.2d 607, 608 (App. Div. 2004) (“Those defendants may be held liable for the conduct of

[their employee] only if they knew or should have known of [the employee’s] alleged violent

propensities. Furthermore, the propensities must be for the type of behavior that caused plaintiff's

harm.” (citation omitted)). This differs from the elements required to prove a claim of general or

gross negligence because plaintiff need not prove that defendants owed them a duty of care, and

this claim is specific to the employer-employee context. Unlike gross negligence, plaintiff need

not show that defendant was “reckless.” PC-41 Doe, 590 F. Supp. 3d at 568.

Because the various claims require different theories of negligence and different facts to

be pleaded in order to state a claim, they are not duplicative of each other.6 In similar cases

arising pursuant to claims under the CVA, various federal and state courts have permitted

multiple negligence claims with different facts and theories to proceed past the motion to dismiss

stage. See, e.g., PC-41 Doe, 590 F. Supp. 3d at 570 (while sustaining claims for negligent hiring,

negligent retention, negligent supervision, negligence, gross negligence, and willful misconduct,

the court dismissed plaintiff’s claims for negligent infliction of emotional distress, premises

liability, and breach of duty in loco parentis as “duplicative” of those cognizable negligence

claims); C.Q. v. Est. of Rockefeller, No. 20-CV-2205, 2021 WL 4942802, at *4 (S.D.N.Y. Oct.

21, 2021) (in a CVA case, the court dismissed premises liability claim as “duplicative” but ruled

that plaintiff’s claims for negligence, gross negligence, negligent retention, and negligent

supervision, all survived defendants’ motion to dismiss); Fay v. Troy City Sch. Dist., 151

N.Y.S.3d 642, 642 (App. Div. 2021) (in a CVA case, the court dismissed premises liability and

negligent infliction of emotional distress claims as “duplicative” of negligence claims but

sustained separate causes of action for negligence, negligent supervision, and negligent

retention); Wilczynski v. Gates Cmty. Chapel of Rochester, Inc., No. 20-CV-06616, 2022 WL

6 Defendants cite to a number of cases with similar facts dismissing claims for premises

liability, breach of duty in loco parentis, and negligent infliction of emotional distress as

duplicative of negligence and gross negligence claims. (Defs.’ Mem. 21–22.) However, in the

Amended Complaint, Plaintiffs avoid pleading those claims which courts have found to be

duplicative.

446561, at *3 (W.D.N.Y. Feb. 14, 2022) (in a CVA case, the court determined that the plaintiff’s

claims for negligence, negligent hiring, negligent supervision and training, and negligent

retention were adequately pled and survived motion to dismiss, while dismissing plaintiff’s

negligent infliction of emotional distress claims as duplicative of plaintiff’s surviving negligence

claims); Digiorgio v. Roman Catholic Diocese of Brooklyn, 2021 N.Y. Misc. LEXIS 1978, *18-

20 (Sup. Ct. 2021) (claims for negligence, gross negligence, negligent retention, and negligent

supervision all survived defendant’s motion to dismiss); Torrey, 125 N.Y.S.3d 531 (Sup. Ct.

2020) (the court sustained causes of action against defendant school district for negligent hiring,

retention, supervision, and direction, as well as negligence and gross negligence).7

Accordingly, the Court finds that Plaintiffs’ tort claims are not duplicative.

d. Plaintiffs sufficiently plead a negligent hiring claim

Defendants argue that Plaintiffs’ negligent hiring claim fails to state a claim because

Plaintiffs do not allege any facts regarding “any notice by Poly Prep, prior to hiring Foglietta in

1966, of a propensity by Foglietta to commit acts of sexual abuse.” (Defs.’ Mem. 19–21.) In

support, Defendants argue that Plaintiffs do not allege any facts that Poly Prep had awareness or

should have had awareness of Foglietta’s propensity to commit sexual abuse. (Id. at 20.) In

addition, Defendants argue that to the extent that Plaintiff’s negligent hiring claim is based on

“rehiring” Foglietta when his annual contract expired, that claim must fail because by definition,

the tort of negligent hiring only pertains to prospective employees, not existing employees. (Id.)

Plaintiffs argue that a rehiring theory of negligent hiring is plausible even where a

7 Defendants also argue that reliance on PC-41 Doe is misguided because in that case the

plaintiff pled a single cause of action of “negligent hiring, retention, supervision.” 590 F. Supp.

3d at 565–66. This argument is unavailing because the court in PC-41 Doe concluded that where

the plaintiffs pled various claims in a single count, it understood the plaintiffs to be alleging in

this Count three separate but largely overlapping torts.” Id. at 568 (emphasis added).

plaintiff does not allege that the defendants had prior knowledge of an individual’s propensity to

cause harm. (Pls.’ Opp’n 31–32.) In support, Plaintiffs argue that Foglietta was a contract

employee of Poly Prep and needed to be rehired periodically, Poly Prep did rehire Foglietta

periodically from 1966 through 1991, and that at least some of those decisions to rehire Foglietta

occurred after school administrators received actual notice that Foglietta had a propensity to

sexually abuse minor boys and had previously done so. (Id. at 32; Am. Compl. ¶ 374.)

“[A] negligent hiring claim can lie when an employer rehires an employee.” PC-41 Doe,

590 F. Supp. 3d at 567; see also Kirk v. Metro. Transp. Auth., No. 99-CV-3787, 2001 WL

258605, at *12 (S.D.N.Y. Mar. 14, 2001) (finding a genuine issue of material fact as to negligent

hiring where plaintiff provided evidence that defendant corporation “rehir[ed] [employee] after

new evaluations revealed the same propensities” that led to him being fired); Detone v. Bullit

Courier Serv., Inc., 528 N.Y.S.2d 575, 576–78 (App. Div. 1988) (evaluating a negligent hiring

claim where an employee had been fired and rehired).

Because a negligent hiring claim is permissible on a theory of negligent rehiring,

Plaintiffs have stated a claim for negligent hiring. Accordingly, the Court denies Defendants’

motion to dismiss on this ground.

III. Conclusion

For the foregoing reasons, the Court denies Defendants’ motion to dismiss.

Dated: March 30, 2023

Brooklyn, New York

SO ORDERED:

/s/ MKB

MARGO K. BRODIE

United States District Judge