Second Department Holds CVA Plaintiff's Testimony of Repeated Classroom Abuse Sufficient to Raise Question of Fact as to Notice

The Appellate Division, Second Department, issued a significant Child Victims Act (CVA) decision in the final days of 2025, following the New York Court of Appeals’ landmark Weisbrod-Moore v. Cayuga County¹ holding from earlier in the year. The Weisbrod-Moore decision, in which the court determined that a municipality’s legal custody over a foster child was sufficient in itself to create a duty of care, marked a departure from existing precedent for New York State’s highest court. A few months later, the Court of Appeals held that to satisfy notice, a CVA plaintiff must prove that the defendant either had prior knowledge of abuse or was otherwise aware of conduct that could have alerted the defendant to potential harm.²

In M.F. v. Putnam County,³ the plaintiff sued Putnam County and St. Anne Institute (SAI), under the CVA to recover damages for negligence. The plaintiff alleged that she was repeatedly sexually abused by a teacher at SAI from March 2013 to July 2013 while placed there as a foster child by Putnam County.

The defendants moved for summary judgment seeking dismissal of the claim, arguing they had no notice of the alleged sexual abuse. The Supreme Court, Putnam County, issued an order on March 5, 2024, granting the defendants’ motion. The plaintiff appealed.

The Second Department reversed the trial court’s order, holding instead that the defendants failed to establish their entitlement to summary judgment. The court looked at the plaintiff’s deposition testimony, submitted by the defendants, where she alleged the abuse occurred daily for several months in a classroom at SAI, both during and after school hours.

The Second Department determined that the defendants failed to eliminate a triable issue of fact as to whether they should have known of the teacher’s conduct, “[i]n light of the frequency and location of the alleged abuse,” as set forth in the plaintiff’s deposition testimony. Because the plaintiff’s deposition was included in the defendants’ moving papers, the Second Department determined the defendants failed to establish their prima facie entitlement to summary judgment. The court concluded that the motion should have been denied, regardless of the sufficiency of the plaintiff’s opposition.

This decision demonstrates that in cases involving repeated abuse, a plaintiff’s testimony pertaining to the frequency and the location of the alleged abuse, may be sufficient to establish a triable issue of fact as to whether an entity should have known of the alleged abuse, limiting the viability of a motion for summary judgment.

If you have any questions regarding the content of this alert, please contact Patrick Farrell, associate, at PFarrell@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
                                                                                      
¹2025 NY Slip Op 00903 (Feb. 18, 2025).
²Nellenback v. Madison County, 2025 NY Slip Op 02263 (April 17, 2025).
³2025 NY Slip Op 07283 (Dec. 24, 2025).