## Facts

- A 12-year-old student at St. John the Baptist School in Brooklyn alleged she was sexually assaulted at the school on May 28, 2008, by the church’s former assistant pastor, Augusto Cortez.
- The amended complaint alleged Cortez abused the child by touching, holding, and fondling her breast.
- The church’s former pastor, Joseph Agostino, allegedly supervised Cortez and authorized Cortez’s presence at the school despite objections from school administrators.
- School administrators allegedly reported to Agostino multiple times that Cortez acted inappropriately with students.
- The child and her parents sued various church-related entities and individuals, asserting negligent hiring, retention, and supervision of Cortez.

## Issues

1. Whether a supervising pastor may be personally liable for negligent hiring, retention, and supervision of an assistant pastor who allegedly abused a child.
2. Whether respondeat superior requires that any negligence by the supervisor be pursued only against the institutional employer, barring direct claims against the supervisor.
3. Whether the pleadings and submissions were sufficient to state a claim and to raise triable issues of fact defeating summary judgment.
4. Whether plaintiffs were entitled to discovery concerning Cortez and related institutional knowledge, and whether such discovery should be subject to a confidentiality protective order.

## Decision

- The court denied Agostino’s motion to dismiss for failure to state a claim (CPLR 3211(a)(7)).
- The court denied Agostino’s motion for summary judgment (CPLR 3212), finding material factual disputes concerning his authority, notice, and response to reports about Cortez.
- The court granted plaintiffs’ motion to compel discovery from Cortez and certain institutional defendants (CPLR 3124), subject to conditions.
- The court granted in part defendants’ motion for a protective order (CPLR 3103), permitting confidentiality designations for sensitive materials without barring production.

## Legal Principles

- Under New York law, an individual supervisor or agent may be personally liable for his own negligent hiring, retention, or supervision when personal involvement is alleged.
- Respondeat superior imposes vicarious liability on an employer but does not, by itself, eliminate direct tort liability of the negligent actor or supervisor.
- Summary judgment is inappropriate where evidence, viewed in the nonmovant’s favor, raises material questions about notice of misconduct and the reasonableness of supervisory actions.
- Discovery relevant to negligent supervision claims may include personnel and complaint-related materials, and courts may use protective orders to limit public dissemination to prevent undue embarrassment or prejudice.

## Conclusion

The court permitted negligent hiring/retention/supervision claims to proceed against the supervising pastor individually, rejected the argument that respondeat superior barred direct claims against him, compelled production of relevant documents, and imposed a tailored confidentiality order to protect sensitive information while allowing discovery.


Krystal G. v. Roman Catholic Diocese of Brooklyn, 34 Misc. 3d 531, 933 N.Y.S.2d 515 (Sup. Ct. Kings Cnty. 2011)