Opinion
No. 950510/2020
06-15-2022
MICHAEL PELUCCO, Plaintiff, v. ARCHDIOCESE OF NEW YORK, MONSIGNOR FARRELL HIGH SCHOOL, CONGREGATION OF CHRISTIAN ROTHERS, CONGREGATION OF CHRISTIAN BROTHERS-NORTH AMERICAN PROVINCE A/K/A WESTERN PROVINCE A/K/A EASTERN PROVINCE A/K/A AMERICAN PROVINCE A/K/A EDMUND RICE CHRISTIAN BROTHERS NORTH AMERICA Defendants.
Unpublished Opinion
MOTION DATE: 02/16/2021
PRESENT: HON. LAURENCE LOVE Justice
DECISION+ ORDER ON MOTION
LAURENCE LOVE, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 27, 28, 29, 30, 31, 32, 33, 34 were read on this motion to/for DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 002) 19, 20, 21, 22, 23, 24, 25, 35 were read on this motion to/for DISMISS .
The following read on the motion of Monsignor Farrell High School, to dismiss, CPLR 3211(a)(7) - failure to state a cause of action, Plaintiff's second cause of action for intentional infliction of emotional distress; and the motion of Archdiocese of New York ("Archdiocese"), to dismiss, CPLR 3211(a)(7) - failure to state a cause of action, Plaintiff's "first cause of action for Negligence to the extent it is predicated on the grounds of respondeat superior or vicarious liability and dismiss[] Plaintiff's second cause of action for outrage and intentional infliction of emotion distress as duplicative of Plaintiff's first cause of action for negligence."
Plaintiff alleges abuse under the Child Victims Act ("CVA"), CPLR 214-g, 22 NYCRR 202.72, with causes of action for i) negligence against each defendant, and ii) outrage and intentional infliction of emotional distress.
Monsignor Farrell High School submits an answer (see NYSCEF Doc. No. 17), as does Archdiocese (see NYSCEF Doc. No. 26). An affidavit of service has been provided for Congregation of Christian Brothers (see NYSCEF Doc. No. 9) and upon Edmund Rice Christian Brothers North America (see NYSCEF Doc. No. 10). Said Defendants have not appeared.
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We 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 within any cognizable legal theory" (see Leon v. Martinez, 84 N.Y.2d 83 [1994]).
When considering a motion to dismiss under CPLR 3211(a)(7), a court must accept the factual allegations of the pleadings as true, affording the non-moving party the benefit of every possible favorable inference and determining "only whether the facts as alleged fit within any cognizable legal theory" (see D.K. Prop., Inc. v. Natl. Union Fire Ins. Co. of Pittsburgh, 168 A.D.3d 505; Weil Gotshal & Manges LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267 [1st Dept. 2004]).
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).
Archdiocese highlights caselaw, "[i]n the absence of any negligent behavior by an employer, liability for acts of an employee may generally be imposed upon the employer pursuant to the doctrine of respondeat superior if the employee was acting withing the scope of his employment" (see Cornell v. State, 46 N.Y.2d 1032, 1033 [1979]). Archdiocese then argues that "[s]exual assault is not within the scope of an employee's duties and, therefore, an employer cannot be held vicarious liable for such acts committed by one of its employees" (see NYSCEF Doc. No. 24 P. 6). Defendant concludes, "[w]hile the Archdiocese disputes plaintiff's allegation that the alleged abuser was an employee of the Archdiocese" (see NYSCEF Doc. No. 25 P. 7).
An affirmation in opposition has been submitted for both Monsignor Farrell High School and Archdiocese. Said document affirms, "[t]he defendants' motions are motions to dismiss on the pleadings, which means that Michael is not required to provide evidence in support of this position. [T]he defendants have not provided any discovery" (NYSCEF Doc. No. 27 Pars. 9-10).
A memorandum of law in opposition highlights case law, "[the defendants' motions] must be denied if from the pleadings' four corners 'factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (see 511 W. 232nd owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 [2002]). "In instances where an employer cannot be held vicariously liable for its employee's torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision. However, a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which cause the injury […]" (see Kenneth R. v. R.C. Diocese of Brooklyn, 229 A.D.2d 159, 160-61 [2nd Dept. 1997]).
The elements for intentional infliction of emotional distress are "i) extreme and outrageous conduct; ii) intent to cause, or disregard of a substantial probability of causing, sever emotional distress; iii) a causal connection between the conduct and injury; and iv) severe emotional distress. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (see Chanko v. American Broadcast Companies, Inc., 27 N.Y.3d 46, 56 [2016]).
However, "a cause of action for intentional infliction of emotional distress should not be entertained where the conduct complained of falls well within the ambit of other traditional tort liability" (see Di Orio v. Utica City School District Board of Education, 305 A.D.2d 1114, 1115-16 [4th Dept. 2003]).
Here, plaintiff asserted causes of action against Portville for negligence. Therefore, the cause of action for intentional infliction of emotional distress 'should not be entertained' (Torrey v. Portville Central School, 66 Misc.3d 1225(A), at *3 [Cattaraugus Cnty, February 21, 2020]).
ORDERED that the motion of Monsignor Farrell High School, to dismiss, CPLR 3211(a)(7) - failure to state a cause of action, Plaintiffs second cause of action for intentional infliction of emotional distress is GRANTED; and it is further
ORDERED that the motion of Archdiocese, to dismiss, CPLR 3211(a)(7) - failure to state a cause of action, Plaintiff s "first cause of action for Negligence to the extent it is predicated on the grounds of respondeat superior or vicarious liability" is DENIED; and it is further
ORDERED that the motion of Archdiocese to "dismiss[] Plaintiffs second cause of action for outrage and intentional infliction of emotion distress as duplicative of Plaintiff s first cause of action for negligence" is GRANTED.