Opinion
Index Nos. 519359/2019 002
09-16-2022
ANONYMOUS RS Plaintiff, v. EDUCATIONAL INSTITUTE OHOLEI TORAH OF BROOKLYN, INC.; and RABBI JOSEPH (YOSSI) REIZES Defendant.
Unpublished Opinion
MOTION DATE 10/25/2021
DECISION + ORDER ON MOTION
HON. LAURENCE L. LOVE JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 25, 29, 30, 31, 38, 39 were read on this motion to/for DISMISS.
Upon the foregoing documents, defendant, Educational Institute Oholei Torah of Brooklyn, Inc.'s ("Oholei Torah") motion to dismiss pursuant to CPLR 3211(a)(1), (5), and (7) is as follows: .
As alleged in the Complaint, filed January 13, 2020, Oholei Torah is a center of Jewish education and a religious corporation organized pursuant to the Religious Corporations Law, licensed and doing business in the State of New York with its principal place of business at 667 Eastern Parkway, Brooklyn, NY 11213. Oholei Torah employed Rabbi Joseph Reizes, who beginning in 1987, when plaintiff was in seventh grade, sexually abused plaintiff both at Oholei Torah and at Reizes' home. Thereafter, Oholei Torah expelled plaintiff after his eighth-grade year. Plaintiff specifically contends that "Oholei Torah knew or should have known that Defendant Reizes posed a sexual danger to children prior to employing him as a teacher at the school. Before being hired at Oholei Torah, Reizes worked at an Orthodox Jewish secondary school in Miami, Florida. While working at this school, Defendant Reizes sexually molested one of his students. Reizes was dismissed from his position at this school after this student's mother threatened to report the school and Reizes to the press if the school did not fire Reizes." Arising from said allegations, plaintiff pleads causes of action against Oholei Torah of 1) Negligence, 2) Respondent Superior, 3) Negligent Hiring, Retention and Supervision, 4) Premises Liability, and further alleges a 5th cause of action of battery against Reizes that is not the subject of this motion.
Oholei Torah argues in support of its motion to dismiss is that CPLR 214-g, violates the Due Process clause of the New York Constitution. Since the submission of the instant motion, multiple courts have found that the claim revival provision of New York's Child Victims Act does not violate the due process clauses of the New York and United States Constitutions, See, Farrell v. United States Olympic &Paralympic Comm., No. 120CV1178FJSCFH, 2021 WL 4820251, at *7 (N.D.N.Y. Oct. 15, 2021), holding that "[A] claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice." Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 400, 67 N.Y.S.3d 547, 89 N.E.3d 1227 (2017). Multiple New York courts and two federal district courts in the Second Circuit have held that the CVA does not run afoul of due process because it remedies an injustice. See, e.g., PC-41 Doe v. Poly Prep Country Day Sch., No. 20-CV-03628 (DG) (SJB), 2021 WL 4310891 *3, 2021 U.S. Dist. LEXIS 181254 *7 (E.D.N.Y. Sept. 22, 2021) (collecting cases); Giuffre v. Dershowitz, No. 19 Civ. 3377 (LAP), 2020 WL 2123214 *2, 2020 U.S. Dist. LEXIS 78596 *5-*6 (S.D.N.Y. Apr. 8, 2020); PB-36 Doe v. Niagara Falls City Sch. Dist., No. El 72556/2020, 72 Misc.3d 1052, ____ _ ____, 152 N.Y.S.3d 242,____ _ ____, 2021 N.Y. Slip. Op. 21188, *6-*7 (N.Y. Sup. Ct., Niagara Cnty. July 19, 2021); ARK3 Doe v. Diocese of Rockville Ctr., No. 900010/2019, 2020 N.Y. Mise. LEXIS 1964, *15 (N.Y. Sup. Ct., Nassau Cnty. May 11, 2020); Torrey v. Portville Cent. Sch., No. 88476, 66 Mise. 3d 1225(A), 2020 N.Y. Slip. Op. 50244(U), *11, 2020 WL 856432 (Cattaraugus Cnty. Feb. 21, 2020)."
"[O]n a motion to dismiss a cause of action pursuant to CPLR §3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. In considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff (Benn v Benn, 82 A.D.3d 548, 548 [1st Dept 2011] see also Brignoli v Balch, Hardy & Scheinman, Inc., 178 A.D.2d 290 [1st Dept 1991] [defendant bears the burden of proof on an affirmative defense]). CPLR 214-g having been found repeatedly to be constitutional, the branch of defendant's motion seeking to dismiss plaintiffs complaint pursuant to CPLR §3211(a)(5) as time-barred, is denied in its entirety.
Oholei Torah also seeks dismissal arguing that plaintiff has failed to state a cause of action "On a motion to dismiss for failure to state a cause of action under CPLR §3211 (a)(7), we accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. At the same time, however, allegations consisting of bare legal conclusions ... are not entitled to any such consideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery." (Connaughton v Chipotle Mexican Grill, Inc., 29NY3d 137, 141-142 [2017] [internal citations omitted]).
In determining a motion to dismiss a complaint pursuant to CPLR §3211(a)(7), a court's role is deciding "whether the pleading states a cause of action, and if from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (African Diaspora Maritime Corp, v Golden Gate Yacht Club, 109 A.D.3d 204 [1st Dept 2013]; Siegmund Strauss, Inc. v East 149th Realty Corp., 104 A.D.3d 401 [1st Dept 2013]). The standard on a motion to dismiss a pleading for failure to state a cause of action is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v Thorn Rock Realty Co., 163 A.D.2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v Blumberg, 242 A.D.2d 205, 660 N.Y.S.2d 726 [1st Dept 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see CPLR §3026; Siegmund Strauss, Inc., 104 A.D.3d 401, supra). In deciding such a motion, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs 'the benefit of every possible favorable inference,'" and "determine only whether the facts as alleged fit into any cognizable legal theory" (Siegmund Strauss, Inc., 104 A.D.3d 401, supra; Nonnon v City of New York, 9 N.Y.3d 825 [2007]; Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not" presumed to be true or accorded every favorable inference (David v Hack, 97 A.D.3d 437 [1st Dept 2012]; Biondi v Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 [1st Dept 1999], aff d 94 N.Y.2d 659 [2000]; Kliebert v McKoan, 228 A.D.2d 232 [1st Dept], Iv denied 89 N.Y.2d 802 [1996], and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]; see also Leon, 84N.Y.2dat 88, supra; Ark Bryant Park Corp, v Bryant Park Restoration Corp., 285 A.D.2d 143, 150 [1st Dept 2001]; "In deciding such a pre-answer motion, the court is not authorized to assess the relative merits of the complaint's allegations against the defendant's contrary assertions or to determine whether or not plaintiff has produced evidence to support his claims" (Salles v Chase Manhattan Bank, 300 A.D.2d 226, 228 [1st Dept 2002]).
Rather, where a motion to dismiss is directed at the sufficiency of a complaint, the plaintiff is afforded the benefit of a liberal construction of the pleadings: "The scope of a court's inquiry on a motion to dismiss under CPLR §3211 is narrowly circumscribed" (1199 Housing Corp, v International Fidelity Ins. Co., NYLJ January 18, 2005, p. 26 col.4, citing P. T. Bank Central Asia v Chinese Am. Bank, 301 A.D.2d 373, 375 [1st Dept 2003]), the object being "to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action" (id. at 376; see Rovello v Orofino Realty Co., 40 N.Y.2d 633, 634 [1976]).
It is the movant who has the burden to demonstrate that, based upon the four comers of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action (see Leon, 84 N.Y.2d at 87-88, supra; Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]); Salles v. Chase Manhattan Bank, 300 A.D.2d 226, 228 [1st Dept 2002]).
Plaintiffs complaint alleges causes of action for (i) negligence, gross negligence, and breaches of duty; (ii) respondent superior / vicarious liability; (iii) negligent hiring, retention, and supervision; and (iv) negligence / premises liability. Oholei Torah contends that plaintiff has failed to sufficiently plead a separate duty of care owed beyond its duty to use reasonable care in hiring, retaining, supervising and training employees and do not owe a separate general duty to prevent conduct by its subordinate that is illegal, outside of its control, and unforeseeable (see Kenneth R. v R.C. Diocese of Brooklyn, 229 A.D.2d 159, 163 [2d Dept 1997], Oholei Torah further contends that "plaintiff fails to plead the essential elements of a negligent training, retention or supervision claim. In addition to the standard elements of negligence, Plaintiff must show that the defendant "knew, or should have known, of the [subordinate's] propensity for the sort of conduct which caused the injury," and that the "tort was committed on the employer's premises with the employer's chattels" (see Ehrens v Lutheran Church, 385 F.3d 232, 235 [2d Cir 2004]."
However, contrary to these assertions "[t]here is no statutory requirement that causes of action sounding in negligent hiring, negligent retention, or negligent supervision be pleaded with specificity" (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159 [2d Dept 1997]). Instead, to prevail on a negligence claim, "a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon v City of New York, 66 N.Y.2d 1026, 1027 [1985]). "A necessary element of a cause of action alleging negligent retention or negligent supervision is that the 'employer knew or should have known of the employee's propensity for the conduct which caused the injury'" (Bumpus v New York City Transit Authority, 47 A.D.3d 653 [2d Dept 2008]).
Here, plaintiff alleges that the Oholei Torah had a duty to protect plaintiff from alleged sexual abuse. In this respect, plaintiff has alleged in more than a generalized manner that defendants knew or should have known of Reizes' propensity to commit such conduct (contra Shor v. Touch-N-Go Farms, Inc., 89 A.D.3d 830, 831 [2d Dept. 2011][generalized claim that defendant "knew the risk of sexual abuse of minor parishioners by priests and other staff' is insufficient (Shor v. Touch-N-Go Farms, Inc., 89 A.D.3d 830, 831 [2d Dept. 2011]). Here plaintiff specifically alleges that immediately prior to his employment at Oholei Torah, Reizes worked at an Orthodox Jewish secondary school in Miami, Florida for a period of less than one year and was dismissed from said employment under suspicious circumstances. Moreover, discovery will be necessary before the parties' significant disputes on the issue of notice can be evaluated.
Movant also seeks dismissal of plaintiffs second cause of action, "[under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." Doe v. Rohan, 17 A.D.3d 509, 512 (2d Dep't 2005), Iv denied 6 N.Y.3d 701 (2005). Sexual abuse is a clear departure from scope of employment, "committed solely for personal reasons, and unrelated to the furtherance of his employer's business." Id., see also, Mozzarella v. Syracuse Diocese, 100 A.D.3d 1384, 1385 (4th Dept 2012); and Mary KK v. Jack LL, 203 A.D.2d 840, 841 (3d Dep't 1994). Similarly, plaintiff may not maintain a cause of action for premises liability as the allegations at issue have nothing to do with Oholei Torah's premises or any condition on its land.
ORDERED that defendant, Oholei Torah's motion to dismiss is GRANTED to the extent that plaintiffs second and fourth causes of action are DISMISSED; and it is further
ORDERED that the remaining branches of defendant's motion are DENIED.