Karen S. v. Streitferdt

Full title: KAREN S. "ANONYMOUS" et al., Respondents, v. THOMAS STREITFERDT et al.…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 30, 1991

172 A.D.2d 440 (N.Y. App. Div. 1991)

568 N.Y.S.2d 946

Opinion

April 30, 1991

Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).

The defendants-appellants are The True Church of God, Inc., a religious corporation, its various trustees and officers, and several related religious entities. Under the by-laws of The True Church of God, Inc., defendant Thomas Streitferdt has nearly absolute authority over the church, its trustees and officers, its membership, and the related churches. The plaintiff minors, by their father and natural guardian, sue on various causes of action based on their allegation that defendant Thomas Streitferdt, who is represented by separate counsel and was not a party to the underlying motion, raped, sodomized and sexually abused them while they were under his religious guidance.

In opposition to the appealing defendants' motion for summary judgment, the plaintiffs submitted an affidavit of their mother, a former member of the church. This affidavit, and the constitution and by-laws of The True Church of God, Inc., suggest that there is a close relation and little distinction among the various entities, with complete domination of the churches and their members by defendant Streitferdt, the members of his family, and his close confidantes. The record suggests that much about the relationship among the various defendants has been hidden. Accordingly, there is a likelihood that discovery would yield essential facts otherwise in the exclusive control of the defendants (see, Goldheart Intl. v Vulcan Constr. Corp., 124 A.D.2d 507, 508). Such discovery is necessary before the arguments of the defendants can be tested on a motion for summary judgment.

The demand for punitive damages should, however, have been stricken. Even where there is gross negligence, punitive damages are awarded only in "singularly rare cases" such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public (Rand Paseka Mfg. Co. v. Holmes Protection, 130 A.D.2d 429, 431, lv denied 70 N.Y.2d 615). Here, there is no allegation that the appealing defendants acted with malicious intent toward the plaintiffs in supervising the activity of defendant Streitferdt (see, Jakobsen v. Wilfred Labs., 99 A.D.2d 525).

The individual defendants' motion for dismissal pursuant to CPLR 3211 (a) (11) was properly denied. The defendants did not present "presumptive evidence of uncompensated status" in that they did not present "an affidavit of the chief financial officer of the corporation, association, organization or trust." (CPLR 3211 [a] [11].) Further, "there is a reasonable probability that the specific conduct of such defendant[s] alleged constitutes gross negligence" (CPLR 3211 [a] [11]). If the appealing defendants did act as the plaintiffs allege, they may be found to have proceeded in reckless disregard of the consequence of their acts (Rand Paseka Mfg. Co. v. Holmes Protection, supra).

The complaint should be dismissed as against those defendants that are unincorporated associations (Mounteer v. Bayly, 86 A.D.2d 942). Given the nature of this case, however, the IAS court did not abuse its discretion by requiring specific proof that those defendants are unincorporated associations, and not merely accepting the conclusory allegation of a single individual defendant.

Leave to amend was properly granted. The defendants had the burden of overcoming a presumption of validity of the proposed new pleadings, and of demonstrating that the facts alleged are not reliable or are insufficient; the facts need not be proven at the repleading stage (Daniels v. Empire-Orr, Inc., 151 A.D.2d 370). The defendants, having submitted no papers in opposition to cross-motion, did not sustain this burden.

Concur — Murphy, P.J., Carro, Ellerin, Wallach and Asch, JJ.