# Wilczynski v. Gates Community Chapel of Rochester, Inc.

> District Court, W.D. New York · February 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10364624

## Case

- **Court:** District Court, W.D. New York
- **Decided:** February 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

THEODORE WILCZYNSKI,

Plaintiff, DECISION AND ORDER

v. 6:20-CV-06616 EAW

GATES COMMUNITY CHAPEL OF
ROCHESTER, INC., d/b/a FREEDOM
VILLAGE USA, and FLETCHER A.
BROTHERS, a/k/a PASTOR BROTHERS,

Defendants.

INTRODUCTION
Plaintiff Theodore Wilczynski (“Plaintiff”) commenced this negligence action on
August 19, 2020, against Defendants Gates Community Chapel of Rochester, Inc. d/b/a
Freedom Village USA (“FVU”) and Fletcher A. Brothers a/k/a Pastor Brothers
(“Brothers”) (collectively “Defendants”) pursuant to this Court’s diversity jurisdiction.
(Dkt. 1). Presently before the Court is Defendants’ motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(b). (Dkt. 16). For the reasons that follow, Defendants’ motion is granted in
part and denied in part.
BACKGROUND
The following facts are taken from Plaintiff’s complaint. (Dkt. 1).
Plaintiff, a citizen of the Commonwealth of Virginia, attended FVU, a private
boarding school for trouble teens located in Lakemont, New York, from September of 1991
through June of 1994. (Id. at ¶¶ 1, 5, 9). He alleges that FVU is a citizen of the State of
New York and Brothers a citizen of Florida. (Id. at ¶¶ 7, 8). Brothers owned, operated,
and controlled FVU. (Id. at ¶ 8).
FVU employed Miguel Galan (“Galan”) in various capacities, including as the

Assistant Dean of Boys. (Id. at ¶ 14). It employed Thomas Jipping (“Jipping”) as a
counselor, and Jose Young (“Young”) and Todd Penkowski (“Penkowski”) as Senior Staff
Members. (Id. at ¶¶ 15, 16, 17).
Plaintiff alleges that he was subjected to repeated abuse while a student at FVU.
Specifically, he alleges that Brothers demanded to know if Plaintiff ever had sex with

animals, and alleges that he was harassed publicly by Young and Penkowski, who both
repeatedly accused him of being a homosexual and feminine. (Id. at ¶¶ 18, 20).
In addition, Galan had an apartment in the boys’ dormitory and engaged in a pattern
of inappropriate relationships with students. (Id. at ¶¶ 22, 23). Notwithstanding the fact
that Galan’s inappropriate conduct was brought to the attention of FVU administration and

Brothers, FVU promoted Galan to his administrative position as Assistant Dean. (Id. at
¶ 24). Galan targeted and sexually abused Plaintiff, including repeatedly sodomizing
Plaintiff and performing oral sex on him. (Id. at ¶ 25). Although Young and Penkowski
were responsible for monitoring the boys’ dormitory, they “looked the other way when
observing Galan’s abuse of Plaintiff.” (Id. at ¶ 26). Galan abused Plaintiff on FVU grounds

and on school trips. (Id. at ¶¶ 27, 28). Galan’s abuse only stopped during Plaintiff’s senior
year when Galan was arrested for raping another FVU student. (Id. at ¶ 29).
Jipping also sexually abused Plaintiff. (Id. at ¶ 30). Jipping would visit male
students in their bedrooms or invite male students to his bedroom. (Id. at ¶ 31). Jipping
sexually abused Plaintiff and ultimately sodomized him. (Id. at ¶ 32). Following the
sodomization by Jipping, Plaintiff sought medical treatment from the FVU nurse, who
made no record, did not investigate the incident, or test Plaintiff for AIDS as he requested.

(Id. at ¶ 33). Similar to their response to Galan’s abuse, Young and Penkowski looked the
other way when observing Jipping abusing Plaintiff. (Id. at ¶ 34). FVU expelled Plaintiff
from school following an internal investigation arising from Galan’s arrest. (Id. at ¶ 36).
Plaintiff asserts claims against FVU and Brothers for negligent hiring (id. at ¶¶ 37-
43); negligent training (id. at ¶¶ 44-49); negligent supervision (id. at ¶¶ 50-55); negligent

retention (id. at ¶¶ 56-62); negligence (id. at ¶¶ 63-69); and negligent infliction of
emotional distress (id. at ¶¶ 70-74). His claims arise under the Child Victims Act (“CVA”),
C.P.L.R. § 214-g, a claim-revival statute extending the statute of limitations for such
claims. He seeks compensatory and punitive damages, attorneys’ fees, costs, and interest
as damages. (Id. at 12).

PROCEDURAL HISTORY
On August 19, 2020, Plaintiff filed the instant action. (Dkt. 1). On June 25, 2021,
Defendants filed the instant motion to dismiss. (Dkt. 16). On July 19, 2021, Plaintiff filed
his opposition to the motion. (Dkt. 18).
DISCUSSION
I. Legal Standard
“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the [pleading], documents
attached to the [pleading] as exhibits, and documents incorporated by reference in the
[pleading].” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court
should consider the motion by “accepting all factual allegations as true and drawing all
reasonable inferences in favor of the [claimant].” Trs. of Upstate N.Y. Eng’rs Pension

Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a
claimant must set forth “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). “A claim has facial plausibility
when the [claimant] pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft,

589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“While a [pleading] attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a [claimant]’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal

quotations and citations omitted). “To state a plausible claim, the [pleading]’s ‘[f]actual
allegations must be enough to raise a right to relief above the speculative level.’” Nielsen
v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at
555).
II. Defendants’ Motion to Dismiss
Defendants argue that the allegations set forth in Plaintiff’s complaint are

insufficiently pled and do not support any of the claims alleged, subjecting the complaint
to dismissal in its entirety. The Court disagrees.
“To establish a prima facie case of negligence under New York law, ‘a plaintiff
must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof,
and (3) injury proximately resulting therefrom.’” Crout v. Haverfield Int’l, Inc., 269 F.

Supp. 3d 90, 96 (W.D.N.Y. 2017) (quoting Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286
(2d Cir. 2006)). In addition, “to state a claim for negligent supervision, hiring, training or
retention of employees, a plaintiff must allege, in addition to the usual elements of
negligence, that the defendant employer ‘knew of [an] employee’s propensity to commit
the alleged acts or that defendant should have known of such propensity had it conducted

an adequate hiring procedure.’” AA by BB v. Hammondsport Cent. Sch. Dist., No. 19-CV-
6551L, 2021 WL 1081179, at *3 (W.D.N.Y. Mar. 22, 2021) (quoting N.U. v. East Islip
Union Free Sch. Dist., 2017 WL 10456860 at *16 (E.D.N.Y. 2017)). Also, the employee’s
actions must have been outside of the scope of employment. Id.
Liability for negligence against Defendants may not arise under a theory of

vicarious liability, which is inapplicable, as here, where an employee clearly acted outside
of the scope of his employment and his actions were entirely motivated by personal
reasons. See Rich v. Fox News Network, LLC, 939 F.3d 112, 129-130 (2d Cir. 2019) (“[t]he
employee also must not be acting within the scope of his or her employment . . . [otherwise]
the employer [would] only be liable . . . vicariously under the theory of respondeat
superior, [and] not for negligent supervision or retention”); R.A. v. State, 73 Misc. 3d
1235(A), 2021 WL 6276207, at *5-6 (Ct. Cl. 2021) (“Turning to the negligence claims

asserted in the proposed claim, although the State may not be held vicariously liable for a
sexual assault perpetrated by its employee, it may be held liable under the theories of
negligent supervision and retention, as alleged here in the proposed claim.”).
Here, Plaintiff does not argue that Defendants should be held vicariously liable for
the conduct of Galan and Jipping, but instead contends that the gravamen of his negligence

claim against Defendants arises from the same facts that support his claims for negligent
hiring, training, supervision, and retention. Specifically, he contends that the complaint
contains sufficient allegations that Defendants owed a duty of care to Plaintiff, as a student
at FVU, to ensure that its administration was competent and morally-fit to educate its minor
students. See PC-41 Doe v. Poly Prep Country Day Sch., No. 20CV03628 (DG)(SJB),

2021 WL 4310891, at *12 (E.D.N.Y. Sept. 22, 2021) (“Starting with the duty element, it
is well settled that [i]n New York, schools are under a special duty of in loco parentis,
which obligates them to exercise such care of [their charges] as a parent of ordinary
prudence would observe in comparable circumstances.” (citations and quotations
omitted)). He alleges that Defendants breached that duty by not protecting him from Galan

and Jipping’s sexual abuse and that Defendants knew or should have known of the
propensity of its administration and staff to engage in abuse. Plaintiff specifically alleges
that Galan’s conduct was brought to the attention of FVU, who promoted Galan despite an
awareness of his misconduct. The alleged acts by Galan and Jipping were clearly
conducted outside of the scope of their employment and Plaintiff alleges severe emotional
and physical harm arising from the abuse. Taking the allegations in Plaintiff’s complaint
as true, as it must, the Court concludes that the claims for negligence, negligent hiring,

training, supervision, and retention have been adequately pled.
Plaintiff’s final cause of action, negligent infliction of emotional distress, requires
him “to show a breach of duty owed to [him or] her which unreasonably endangered [his
or] her physical safety, or caused [him or] her to fear for [his or] her own safety.’” A.M.P.
v. Benjamin, 201 A.D.3d 50, 2021 WL 5496954, at *3 (3d Dep’t 2021). But “[u]nder New

York law, claims are duplicative when both ‘arise from the same facts and seek the identical
damages for each alleged breach.’” C.Q. v. Est. of Rockefeller, No. 20-CV-2205 (VSB),
2021 WL 4942802, at *4 (S.D.N.Y. Oct. 21, 2021) (quoting Deutsche Bank Nat’l Tr. Co.
v. Quicken Loans Inc., 810 F.3d 861, 869 (2d Cir. 2015)). In similar cases arising pursuant
to the CVA, courts have concluded that claims for negligent infliction of emotional distress

are duplicative of other negligence-based claims. See PC-41 Doe, 2021 WL 4310891, at
*15 (“And in similar CVA actions, both NIED and premises liability claims have been
dismissed as duplicative of other tort claims.” (collecting cases)); Fay v. Troy City Sch.
Dist., 197 A.D.3d 1423, 151 N.Y.S.3d 642, 643 (3d Dep’t 2021) (“The conduct complained
of in the causes of action for premises liability and negligent infliction of emotional distress

falls entirely within the scope of plaintiff’s separate causes of action for negligence,
negligent supervision and negligent retention. Thus, the premises liability and negligent
infliction of emotional distress claims must be dismissed as duplicative of the negligence,
negligent supervision and negligent retention claims.” (quotation and citation omitted)).
Plaintiff agrees that this claim is duplicative and subject to dismissal. (Dkt. 18 at 10).
For these reasons, Defendants’ motion to dismiss Plaintiff’s complaint is denied

except as to Plaintiff’s claim for negligent infliction of emotional distress, which is
dismissed. Plaintiff’s remaining claims may proceed.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted in part and
denied in part. (Dkt. 16). Plaintiff’s claim for negligent infliction of emotional distress is

dismissed as duplicative of the other causes of action.
SO ORDERED.

________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: February 14, 2022
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364624. Public record. Not legal advice.