        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

470
CA 15-00769
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


ELLIOTT B. PATER, AS ADMINISTRATOR OF THE
ESTATE OF JOYCE PECKY, DECEASED,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, BUFFALO POLICE DEPARTMENT
AND GREGG O’SHEI, DEFENDANTS-RESPONDENTS.
(ACTION NO. 1.)
------------------------------------------
SUSAN PHISTER, PLAINTIFF-APPELLANT,

                    V

CITY OF BUFFALO, BUFFALO POLICE DEPARTMENT
AND GREGG O’SHEI, DEFENDANTS-RESPONDENTS.
(ACTION NO. 2.)
------------------------------------------
ERICA SNYDER, PLAINTIFF-APPELLANT,

                    V

CITY OF BUFFALO AND GREGG O’SHEI,
DEFENDANTS-RESPONDENTS.
(ACTION NO. 3.)


CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR
PLAINTIFF-APPELLANT ELLIOTT B. PATER, AS ADMINISTRATOR OF THE ESTATE
OF JOYCE PECKY.

PAUL WILLIAM BELTZ, P.C., BUFFALO (WILLIAM QUINLAN OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS SUSAN PHISTER AND ERICA SNYDER.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS CITY OF BUFFALO AND BUFFALO
POLICE DEPARTMENT.


     Appeals from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered July 22, 2014. The order, inter alia, granted
the motion of defendants City of Buffalo and Buffalo Police Department
for summary judgment.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.
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                                                         CA 15-00769

     Memorandum: Plaintiffs commenced individual actions alleging
personal injuries arising out of incidents of sexual abuse committed
by defendant Gregg O’Shei while he was on duty as a police officer for
defendants City of Buffalo and the Buffalo Police Department (City
defendants). O’Shei allegedly selected his victims based on their
previous criminal histories, drug abuse, and their status as single
mothers. Supreme Court properly granted the motion of the City
defendants for summary judgment dismissing the complaints against
them. Initially, we note that plaintiffs have not challenged on
appeal the court’s determination that the City defendants cannot be
vicariously liable for the conduct of defendant O’Shei, and they
therefore have abandoned any contentions concerning the propriety of
that part of the order (see Pyramid Brokerage Co., Inc. v Zurich Am.
Ins. Co., 71 AD3d 1386, 1388; Brunette v Time Warner Entertainment
Co., L.P., 32 AD3d 1170, 1170).

     The court properly granted the motion with respect to plaintiffs’
theory that the City defendants negligently retained or supervised
O’Shei following his second of two on-duty motor vehicle accidents,
the first in 1997 and the second in 2003. Plaintiffs contend that the
City defendants failed to do an appropriate evaluation of O’Shei’s
neuropsychological status after the second motor vehicle accident.
Recovery on a negligent retention theory “requires a showing that the
employer was on notice of the relevant tortious propensit[y] of the
wrongdoing employee” (Gomez v City of New York, 304 AD2d 374, 374-375;
see Zanghi v Laborers’ Intl. Union of N. Am., AFL-CIO, 8 AD3d 1033,
1034, lv denied 4 NY3d 703), i.e., “that the employer knew or should
have known of the employee’s propensity for the conduct which caused
the injury” (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d
159, 161, lv dismissed 91 NY2d 848, cert denied 522 US 967; see Murray
v Research Found. of State Univ. of N.Y., 283 AD2d 995, 996, lv denied
96 NY2d 719; Piniewski v Panepinto, 267 AD2d 1087, 1088). Thus,
contrary to plaintiffs’ contention, the City defendants were under no
common-law duty to institute specific procedures for supervising or
retaining O’Shei inasmuch as they did not know of facts that would
lead a reasonably prudent person to investigate the employee (see Buck
v Zwelling, 272 AD2d 895, 895; Kenneth R., 229 AD2d at 163; see also
Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933-934).

     Our dissenting colleague applies a legal standard involving
hiring procedures from Travis v United Health Servs. Hosps., Inc. (23
AD3d 884, 884-885), but neither the Court of Appeals nor we have
applied that standard in cases such as this, where hiring procedures
are not at issue. Indeed, as the dissent acknowledges, this is a
retention case, and it is well settled that the common-law duty for
retention does not require as high a degree of care as does hiring
(see Chapman v Erie Ry. Co., 55 NY 579, 583; 1B NY PJI3d 2:240 at 720
[2016]). The cases relied on by the dissent are therefore
inapplicable. Even assuming, arguendo, that the common-law duty for
hiring applies to the instant case, we conclude that the holding of
Travis and similar cases does not control here. Although Travis has
been interpreted as imposing a common-law duty on employers to conduct
adequate hiring procedures irrespective of whether an employer knows
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                                                         CA 15-00769

of facts that would lead a reasonably prudent person to investigate an
employee (see 1B NY PJI3d 2:240 at 719-720 [2016]), we note that this
Court has never imposed that broad legal duty on employers. We have
held instead that “ ‘[t]here is no common-law duty to institute
specific procedures for hiring employees unless the employer knows of
facts that would lead a reasonably prudent person to investigate the
prospective employee’ ” (Buck, 272 AD2d at 895 [emphasis added]; see
also Judith M. v Sisters of Charity Hosp., 249 AD2d 890, 890, affd 93
NY2d 932). We also disagree with the dissent’s conclusion that the
foreseeability of the conduct gives rise to an employer’s duty to
investigate an employee’s neuropsychological health inasmuch as
foreseeability “is applicable to determine the scope of duty—only
after it has been determined there is a duty” (Pulka v Edelman, 40
NY2d 781, 785). The duty here did not arise inasmuch as the City
defendants did not know of O’Shei’s propensity to commit sexual abuse
and they did not know of any facts requiring a conclusion that they
should have known of such a propensity (see Zanghi, 8 AD3d at 1034),
and thus the issue of scope of duty is not before us.

     Here, the City defendants established as a matter of law that
they lacked notice of O’Shei’s propensity for the type of behavior
causing plaintiffs’ harm (see Paul J.H. v Lum, 291 AD2d 894, 895;
Curtis v City of Utica, 209 AD2d 1024, 1025). The City defendants
demonstrated that O’Shei never exhibited any behaviors indicative of
his alleged propensity to target vulnerable victims for sexual abuse,
nor did the medical information submitted to the City following either
of O’Shei’s motor vehicle accidents contain any information alerting
the City defendants to such propensity. Therefore, contrary to
plaintiffs’ contention, no duty arose on the part of the City
defendants to employ any specific procedures or otherwise to
investigate O’Shei’s fitness to return to work following the 2003
accident.

     We conclude that plaintiffs failed to raise an issue of fact in
opposition to the motion (see generally Zuckerman v City of New York,
49 NY2d 557, 562). Contrary to plaintiffs’ contention, the alleged
conversation between one of the plaintiffs and her brother, a City of
Buffalo patrol officer, does not raise an issue of fact whether the
City defendants had actual notice of O’Shei’s tortious propensity.
The record developed by plaintiffs is inadequate to establish the
content of that alleged conversation, as well as the context and
circumstances thereof (see generally Caselli v City of New York, 105
AD2d 251, 255-256).

     Plaintiffs also failed to raise an issue of fact that O’Shei’s
alleged traumatic brain injury, as purportedly exacerbated by the
second motor vehicle accident, furnished constructive notice to the
City defendants that O’Shei was likely to exhibit disinhibited
behaviors. As noted above, there is nothing in the record supporting
that contention.

     The dissent conflates the traumatic brain injury O’Shei suffered
in the 1997 motor vehicle accident, for which O’Shei was fully
evaluated before his return to work in 2003, with “neuropsychological
                                 -4-                           470
                                                         CA 15-00769

issues” that could be related to such an injury, but the record here
does not establish that such “neuropsychological issues” ever existed.
To the contrary, following the first motor vehicle accident, O’Shei’s
physicians determined that there was “no evidence of emotional
distress” and “no major psychological issues.” O’Shei denied that he
was experiencing depression, anxiety, or PTSD symptoms, and he also
told his physicians he “was not willing to consider counseling for
issues associated with his brain injury.” Moreover, even after O’Shei
was expelled from the Buffalo Police Department and convicted of
official misconduct, he testified at his deposition that he had never
treated with any psychiatrists or psychologists for any behavioral
issues. Inasmuch as neither O’Shei nor his physicians ever detected
any “neuropsychological issues” warranting treatment, we conclude that
the City defendants were never under a duty to detect such issues in
the absence of facts warranting an investigation.

     Finally, we conclude that the affidavits of plaintiffs’ experts
failed to raise an issue of fact. Neither expert offered any detail
with respect to the procedures or testing the City defendants should
have engaged in following O’Shei’s second motor vehicle accident and,
therefore, both of their opinions are conclusory (see Diaz v New York
Downtown Hosp., 99 NY2d 542, 545; Keller v Liberatore, 134 AD3d 1495,
1496; Neville v Chautauqua Lake Cent. Sch. Dist., 124 AD3d 1385,
1386). Moreover, the opinion offered in the affidavit of plaintiffs’
expert neuropsychologist—who is not a medical doctor—is speculative
inasmuch as he failed to articulate any basis for asserting that
“appropriate” testing would have revealed the type of sexually
predatory propensity that O’Shei manifested against plaintiffs (see
Golden v Pavlov-Shapiro, 138 AD3d 1406, 1406; Bagley v Rochester Gen.
Hosp., 124 AD3d 1272, 1273-1274).

     All concur except PERADOTTO, J.P., who dissents and votes to
modify in accordance with the following memorandum: Viewing the facts
in the light most favorable to plaintiffs, and drawing every available
inference in their favor (see De Lourdes Torres v Jones, 26 NY3d 742,
763), I conclude that there are issues of fact that preclude granting
summary judgment to defendants City of Buffalo and Buffalo Police
Department (City defendants). I therefore respectfully dissent.

     As an initial matter, contrary to the City defendants’
contention, plaintiffs did not improperly rely on a new theory of
liability for negligence in opposition to the City defendants’ motion
inasmuch as the allegations in plaintiffs’ complaints and the original
verified bills of particulars were sufficient to encompass plaintiffs’
theory that the City defendants’ negligence arose from the inadequacy
of the procedures used in retaining defendant police officer Gregg
O’Shei (see Salvania v University of Rochester, 137 AD3d 1607, 1608).

     I disagree with the majority’s conclusion, however, that the City
defendants met their initial burden of eliminating all triable issues
of fact with regard to that theory of negligence. Rather, the record
establishes that there is an issue of fact whether the City defendants
should have known—had they conducted an adequate procedure in
retaining O’Shei and returning him to patrol duty following a head
                                 -5-                           470
                                                         CA 15-00769

injury he sustained in a motor vehicle accident in November 2003—that
O’Shei’s conduct was reasonably foreseeable, that is, that he had a
propensity to engage in the type of harm alleged by plaintiffs (see
generally N.X. v Cabrini Med. Ctr., 280 AD2d 34, 42-43, mod on other
grounds 97 NY2d 247; Diana F. v Velez, 126 AD3d 856, 856; Travis v
United Health Servs. Hosps., Inc., 23 AD3d 884, 884-885). As
plaintiffs contend, while the evidence submitted by the City
defendants established that O’Shei was subjected to neurological
testing following his first motor vehicle accident in 1997, and that
the resulting records were reviewed by the police department’s
then-commissioner of legal affairs in determining O’Shei’s fitness to
return to work in 2001, the City defendants’ submissions failed to
establish that O’Shei was subjected to any retention procedure before
he was returned to work in 2004 following the second accident, shortly
after which he began engaging in sexual misconduct directed against
plaintiffs (see generally Doe v Chenango Val. Cent. Sch. Dist., 92
AD3d 1016, 1017; Jones v City of Buffalo, 267 AD2d 1101, 1102).
Indeed, the City defendants merely submitted a report from the City of
Buffalo dated December 1, 2003 indicating that O’Shei had been removed
from duty by the Erie County Medical Center and his primary physician
following the second accident, and a letter stating that O’Shei was
cleared to return to work by his primary physician as of April 23,
2004. The City defendants did not establish, however, who made the
decision to return O’Shei to active duty, what actions were undertaken
to evaluate O’Shei in reaching that decision, and whether such actions
were reasonable (see generally Doe, 92 AD3d at 1017). The City
defendants’ own submissions established that they were aware of
O’Shei’s multiple traumatic brain injuries, including the 1997 injury
that resulted in a lengthy absence from work of nearly five years
during which time O’Shei received treatment for neuropsychological
issues and the subsequent November 2003 “closed head injury” that
resulted in another concussion. The City defendants’ submissions even
included, for example, a 1998 report from a clinical neuropsychologist
who examined O’Shei following the first accident and explained that,
“[g]iven [O’Shei’s] history of multiple head injuries, and our
understanding of the cumulative neuropsychological effects of head
injuries, even a mild head injury could place [O’Shei] at significant
neurologic risk.” Nonetheless, the City defendants’ submissions fail
to establish whether O’Shei, after the second accident in which he
sustained another head injury, was subjected to any neurological or
psychological testing before being allowed to return to work by the
City defendants. Contrary to the majority’s conclusion that the City
defendants had no duty to investigate O’Shei’s fitness to return to
work following the second accident, given the City defendants’
knowledge of O’Shei’s prior traumatic brain injury, his resulting
absence from work, and his neuropsychological issues, I conclude that
the City defendants were aware of facts that would lead a reasonably
prudent person, in light of the subsequent concussive head injury, to
investigate O’Shei’s neurological and psychological health further
before retaining him as an active duty police officer (see “Jane Doe”
v Goldweber, 112 AD3d 446, 447; Jones, 267 AD2d at 1102; cf. Buck v
Zwelling, 272 AD2d 895, 895; Kenneth R. v Roman Catholic Diocese of
Brooklyn, 229 AD2d 159, 163, cert denied 522 US 967, lv dismissed 91
NY2d 848; see generally Chapman v Erie Ry. Co., 55 NY 579, 585-586).
                                 -6-                           470
                                                         CA 15-00769

Far from supporting the majority’s conclusion, the lack of evidence in
the record indicating whether there was any change in O’Shei’s fitness
to return to work following the second accident—information that may
well have been developed by the City defendants upon conducting an
adequate investigation—provides a reason to deny the City defendants’
motion for summary judgment, not a reason to grant it. In other
words, the City defendants failed to eliminate a triable issue of fact
whether they should have known, had they required neurological or
psychological testing based on their knowledge of O’Shei’s physical
and neuropsychological history, that O’Shei was not fit to return to
active duty as a police officer because he had a propensity to engage
in improper disinhibited behavior, including the coerced sexual
conduct alleged by plaintiffs (see “Jane Doe”, 112 AD3d at 447).

     Even assuming, arguendo, that the City defendants met their
initial burden on their motion, I conclude that plaintiffs raised a
triable issue of fact. Plaintiffs submitted the expert affidavit of a
neuropsychologist, who reviewed O’Shei’s medical records, personally
examined him, and prepared a report. The neuropsychologist opined
that had the City defendants engaged in appropriate psychological or
neuropsychological testing following O’Shei’s last reported brain
injury in November 2003, they would have learned that such injury
resulted in frontal lobe dysfunction that, in the neuropsychologist’s
medical opinion, ultimately led to the behavior O’Shei perpetrated
against plaintiffs. In particular, the neuropsychologist opined that
such testing would have revealed the propensity of O’Shei to
potentially engage in “disinhibited behaviors” and that O’Shei’s
inhibitions against engaging in sexual predatory behaviors were
compromised by his brain injuries. In his report, the
neuropsychologist noted, inter alia, that, given O’Shei’s documented
history of frontal lobe and limbic brain impairments, and the
potential for behavioral problems as a consequence of those
conditions, it was prudent and necessary for the City defendants to
order a detailed neuropsychological examination, which would have
highlighted O’Shei’s behavioral liabilities. Thus, according to the
neuropsychologist, given the well-documented multiple traumatic brain
injuries sustained by O’Shei, a proper fitness-for-duty examination
after the second accident and prior to O’Shei’s reinstatement as a
police officer would have revealed his frontal lobe dysfunction, which
would have precluded the City defendants from returning him to work
and which, in turn, would have prevented him from engaging in the
sexual misconduct directed against plaintiffs. Contrary to the
majority’s determination, the neuropsychologist’s affidavit and
incorporated report were not conclusory or speculative inasmuch as he
averred that he had performed, and thus was familiar with, fitness-
for-duty examinations for police officers, and he opined, in light of
O’Shei’s history of traumatic brain injuries, that psychological,
neuropsychological, neurologic, and SPECT examinations should have
been performed. Given those submissions, I agree with plaintiffs that
they raised an issue of fact whether the City defendants, had they
conducted an adequate procedure, should have known about O’Shei’s
propensity to engage in improper disinhibited behavior, including the
alleged coerced sexual conduct alleged in this case.
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                                                         CA 15-00769

     I further disagree with the majority’s conclusion that there is
no triable issue of fact whether the City defendants had actual
knowledge of O’Shei’s conduct based on the information conveyed to the
brother of one of the plaintiffs, who was also a City of Buffalo
patrol officer. “The general rule is that knowledge acquired by an
agent acting within the scope of his [or her] agency is imputed to his
principal and the latter is bound by such knowledge although the
information is never actually communicated to it” (Center v Hampton
Affiliates, 66 NY2d 782, 784; see Kirschner v KPMG LLP, 15 NY3d 446,
465). Even assuming, arguendo, that the City defendants met their
initial burden on their motion, I conclude that plaintiffs raised an
issue of fact. The brother’s deposition testimony established that
one of the plaintiffs had informed him that O’Shei was subjecting her
to constant harassment and that he never reported the complaint to any
superior officers because he did not think the plaintiff was credible.
Plaintiffs also submitted the deposition of a police captain who
testified that when a citizen makes a complaint to a police officer
about another officer’s conduct, protocol requires that the officer
take the information and provide a report to a supervisor in order to
ensure that the report is submitted to the Internal Affairs Division
of the police department. I recognize that a jury could conclude that
the brother did not obtain the relevant information about O’Shei’s
harassment of the plaintiff in the course of his employment (see
Christopher S. v Douglaston Club, 275 AD2d 768, 769), or that the
information conveyed was not sufficiently specific to provide actual
knowledge that O’Shei had engaged in coerced sexual activity with
civilians, but this Court’s function on a motion for summary judgment
is issue finding, not issue determination (see Bridenbaker v City of
Buffalo, 137 AD3d 1729, 1731), and the evidence must be viewed in the
light most favorable to plaintiffs with every available inference
drawn in their favor (see De Lourdes Torres, 26 NY3d at 763).
Employing those principles, I conclude that plaintiffs raised an issue
of fact whether the information received by the brother could be
imputed to the City defendants “ ‘although the information [was] never
actually communicated to [the principal]’ ” (Chaikovska v Ernst &
Young, LLP, 78 AD3d 1661, 1663, quoting Center, 66 NY2d at 784).

     Finally, with respect to the alternative ground for affirmance
properly raised by the City defendants (see Parochial Bus Sys. v Board
of Educ. of City of N.Y., 60 NY2d 539, 544-546; Matter of
Harnischfeger v Moore, 56 AD3d 1131, 1131), i.e., that they are
entitled to governmental immunity, I conclude that Supreme Court did
not abuse its discretion in declining to consider that untimely and
unpleaded affirmative defense (see generally Mawardi v New York Prop.
Ins. Underwriting Assn., 183 AD2d 758, 758; Fulford v Baker Perkins,
Inc., 100 AD2d 861, 861-862).

     In light of the foregoing, I would modify the order on the law by
denying the City defendants’ motion for summary judgment to the extent
that plaintiffs allege negligent retention, reinstate that claim, and
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                                         CA 15-00769

otherwise affirm.




Entered:   July 8, 2016         Frances E. Cafarell
                                Clerk of the Court
