Sexual misconduct in the educational and more especially the school sport arena has become omnipresent.  In Mulligan v Long Is. Fury Volleyball Club  2018 NY Slip Op 28132
Decided on May 1, 2018  Supreme Court, Suffolk County  Santorelli, J. we see the effects of decisions by sport officials in handling reports of sexual misconduct between the students and the coaches.

“The plaintiff claims that between January 2013 and April 2013 she had a sexual relationship with defendant Concepcion. Two of the dates on which the plaintiff claims they had sexual relations were during volleyball tournaments set up by defendant LIFVC where plaintiff and defendant Concepcion stayed with the volleyball team at hotels. The plaintiff was seeing defendant Brenner for therapy for several years before these incidents. The plaintiff alleges that sometime in early February 2013 she advised defendant Brenner that she was having a sexual relationship with defendant Concepcion, who was her assistant coach at the time for her travel volleyball team with LIFVC. The plaintiff claims that after she discussed the sexual relationship with defendant Brenner, Brenner encouraged her to tell her parents or that she would advise them of the relationship. The plaintiff advised her parents of the sexual relationship in April 2013. Defendant Concepcion was arrested in April 2013 based upon the underlying [*2]allegations contained in this complaint and pled guilty on April 4, 2014 to Endangering the Welfare of a Child. He was sentenced on July 11, 2014. The plaintiff’s birthday is in early February 1996. Defendant Brenner claims that at the time that the plaintiff advised her of the relationship with Concepcion she was already seventeen years old and had reached the age of consent for sexual activity.”

“Defendant LIFVC claims that the plaintiff remained in the physical custody and control of her parents during the volleyball tournaments where defendant Concepcion had sexual relations with the plaintiff and therefore it did not owe a duty to her. LIFVC claims that the plaintiff’s parent or parents went to all away tournaments, specifically the two where the plaintiff claims sexual encounters occurred and therefore plaintiff remained in her parents care and custody. In addition, LIFVC argues that the negligent infliction of emotional distress cause of action is duplicative of the breach of fiduciary duty cause of action and must be dismissed. In opposition, [*5]the plaintiff claims that she was separated from her parents and placed in rooms that were under the custody and control of LIFVC and its coaches. The plaintiff further alleges that her parents were in the same town for the tournaments but did not stay in the same hotels as the team. The plaintiff argues that the negligent infliction of emotional distress cause of action is not duplicative of the breach of fiduciary duty cause of action because it also encompasses the treatment of the plaintiff after the sexual contact with defendant Concepcion.

The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has pled a cause of action for breach of fiduciary duty cognizable at law as against defendant LIFVC. However, the cause of action for negligent infliction of emotional distress is “essentially duplicative” of the breach of fiduciary duty cause of action and therefore cannot be asserted against defendant LIFVC. Therefore defendant LIFVC’s motion to dismiss is granted as to the negligent infliction of emotional distress cause of action and is otherwise denied.”

“Defendant Brenner acknowledges that she is a mandatory reporter under Soc Serv § 413 but argues that she did not have to report the sexual conduct that the plaintiff admitted to engaging in with defendant Concepcion. Brenner claims that the plaintiff advised her of the sexual contact in February 2013, when she was seventeen years old, after she had already attained the age of consent. Brenner also claims that it was not a mandatory reporting situation because defendant Concepcion was not a person legally responsible for the plaintiff. Defendant Brenner also states that she advised and convinced the plaintiff to report the sexual conduct to her mother, which the plaintiff did in April 2013. In opposition the plaintiff claims that she was under the care of defendant Brenner since she was in ninth grade and that she “disclosed to Defendant Brenner that she was being raped and sexually abused by Defendant Concepcion in January or February of 2013.”

The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has not pled a cause of action for breach of fiduciary duty, negligent infliction of emotional distress or professional malpractice as against defendant Brenner. Brenner has shown that the plaintiff attained the age of consent before she advised Brenner of the sexual relationship she had with Defendant Concepcion. In addition, since defendant Concepcion was not a legally responsible person under the Family Court Act for plaintiff, defendant Brenner did not have a duty to report the relationship at that time. Therefore defendant Brenner’s motion to dismiss is granted and the complaint is dismissed as to defendant Brenner.”