Opinion
Index No. 951028/2021 MOTION SEQ. No. 002 003
09-04-2024
T. B., Plaintiff, v. CITY OF NEW YORK, NEW YORK FOUNDLING, CATHOLIC CHARITIES OF STATEN ISLAND, CATHOLIC CHARITIES OF NEW YORK, ARCHDIOCESE OF NEW YORK, THE SISTERS OF CHARITY OF SAINT VINCENT DE PAUL OF NEW YORK, THE SALVATION ARMY GREATER NEW YORK DIVISION, DOES 1-10 Defendants.
Unpublished Opinion
MOTION DATE 01/20/2022, 01/13/2022
DECISION + ORDER ON MOTION
ALEXANDER M. TISCH Justice
The following e-filed documents, listed by NYSCEF document number (Motion 002) 28, 29, 30, 31, 43, 44, 45, 51, 53, 54, 55, 56, 61, 62 were read on this motion to/for DISMISS.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 46, 52, 57, 58, 59, 60, 63, 64 were read on this motion to/for DISMISSAL.
In Motion Sequence Number 002, defendant Catholic Charities of Staten Island f/k/a The Mission of the Mt. Loretto for the Protection of Homeless and Destitute Children a/k/a Mount Loretto ("Mt. Loretto"), moves to dismiss the Complaint pursuant to CPLR § 3211(a)(7), for failure to state a claim for which relief can be granted or, in the alternative, to strike prejudicial language from the Complaint pursuant to CPLR § 3024(b). Plaintiff cross-moves for leave to amend the Complaint. In Motion Sequence Number 003, defendants The New York Foundling s/h/a New York Foundling f/k/a New York Foundling Hospital f/k/a St. Agatha Home for Children ("Foundling") and The Sisters of Charity of St Vincent De Paul of New York a/k/a Sisters of Charity New York ("Sisters" and together "Movants") move to dismiss the Complaint pursuant to CPLR § 3211(a)(7), for failure to state a claim for which relief can be granted, or, alternatively to strike prejudicial language.
Motion Sequence 002
Mt. Loretto moves to dismiss the Complaint on the grounds plaintiff has failed to identify the individual who allegedly abused her and also fails to allege Mt. Loretto had the required notice of the alleged abuser's propensity for this type of conduct. Alternatively, should the Complaint survive the motion to dismiss, Mt. Loretto moves that the term "perpetrators" be struck as prejudicial.
First, the Court will consider the plaintiffs cross-motion to amend the Complaint. The cross-motion is unnecessary. CPLR § 3205(a) allows amendments without leave of court "at any time before the period for responding to it expires." That time period is extended by the motions to dismiss by virtue of CPLR § 3211(f), which extends the time for a responsive pleading until ten days after service of notice of entry of an order deciding the motion. Therefore, plaintiff may amend the Complaint as of right (Roam Capital, Inc. v Asia Alternatives Mgt. LLC, 194 A.D.3d 585, 585 [1st Dept 2021]). This Court will consider the Proposed Amended Complaint (NYSCEF Doc. No. 55) to be the active complaint.
In their reply, Mt. Loretto contends the same arguments it makes against the Complaint defeat the Proposed Amended Complaint. Taking this as Mt. Loretto's consent, this Court will apply the motion to dismiss to the Amended Complaint {Sage Realty Corp, v Proskauer Rose LLP, 251 A.D.2d 35, 38 [1st Dept 1998]; Bavaro v Runway Towing Corp., 79 Misc.3d 1208(A) [NY Cty, Sup Ct 2023], rearg denied, [NY Cty, Sup Ct 2023]).
In considering a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7), a court decides "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 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 [1st Dept 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). The pleadings must be liberally construed (see CPLR § 3026; Siegmund Strauss, Inc., 104 A.D.3d 401) and 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, 403; Nonnon v City of New York, 9 N.Y.3d 825, 827 [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, 438 [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 1996], Iv denied 89 N.Y.2d 802 [ 1996]). Further, "[i]n 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]). 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 v Martinez, 84 N.Y.2d 83, 87-88 [1994]; Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]); Salles v Chase Manhattan Bank, 300 A.D.2d 226, 228 [1st Dept 2002]).
Mt. Loretto contends the Amended Complaint fails to state a claim because it does not name the plaintiff s alleged abuser and lacks factual allegations which would show Mt. Loretto had the required notice of the alleged abuser's propensities. Plaintiff has pled she was abused when she was living at Mt. Loretto by a male employee on the night shift. She provides a physical description of the employee. The employee's identity may be found through discovery. Failure to name the alleged abuser is not fatal at this stage. As to notice, plaintiff alleges abuse at Mt. Loretto was "open, notorious, and endemic for decades prior to Plaintiffs abuse" and that the defendants knew or should have known of the danger to plaintiff (Amended Complaint ¶ 102-05). Greater specificity is not required at this preanswer stage in the litigation, when "such information is in the sole possession and control of the movant (G.T. v R.C. Diocese of Brooklyn, New York, 211 A.D.3d 413, 413 [1st Dept 2022]). Therefore, the motion to dismiss the Amended Complaint is denied.
As far as Mt. Loretto moves to strike plaintiffs use of the defined term "perpetrator" in the Amended Complaint, the Court considers, pursuant to CPLR § 3024(b), "whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action" (Soumayah v Minnelli, 41 A.D.3d 390, 392 [1st Dept 2007]). "Matters that are unnecessary to the viability of the cause of action and would cause undue prejudice to defendants should be stricken from the pleading or bill of particulars" (Irving v Four Seasons Nursing &Rehabilitation Ctr., 121 A.D.3d 1046, 1048 [2d Dept 2014]).
Here, plaintiffs repeatedly referencing various alleged abusers as "perpetrators" without qualification is prejudicial and does not advance any stated cause of action. The Child Victims Act. by its very nature, presupposes an alleged victim suffered physical abuse by a perpetrator. Therefore, as far as the motion seeks to strike use of the unqualified term "perpetrator" for the alleged abusers, it is granted.
Motion Sequence Number 003
In Motion Sequence Number 003, defendants NEW YORK FOUNDLING f/k/a NEW YORK FOUNDLING HOSPITAL, f/k/a ST AGATHA HOME FOR CHILDREN ("Foundling") and THE SISTERS OF CHARITY OF SAINT VINCENT DE PAUL OF NEW YORK a/k/a SISTERS OF CHARITY NEW YORK (the "Sisters" and together "Movants") move together to dismiss the Complaint for failure to state a claim for which relief can be granted pursuant to CPLR § 3211(a)(7); to dismiss the claim against the Sisters, as the alleged perpetrator was not affiliated with the Sisters; and to strike prejudicial language in the Complaint. In their reply, Movants ask the Court to dismiss the Amended Complaint, in the event the amendment is allowed, so this Court will apply this motion to the Amended Complaint, which is the operative complaint, as discussed above.
The motion to strike unqualified use of the word "Perpetrators" for the alleged abusers in the Amended Complaint is the same as the one made in Motion Sequence Number 002, discussed above, and is granted for the same reasons.
The Movants first move to dismiss the Amended Complaint as against the Sisters on the ground that no factual allegations are alleged against the Sisters, as the Amended Complaint states plaintiff was abused at St. Agatha's Home for Children on 68th Street in Manhattan, while the home is actually located in Nanuet, New York. However, the issue on a motion to dismiss pursuant to CPLR § 3211(a)(7) is not whether plaintiff is correct, but whether plaintiff has alleged facts which would constitute a claim. Plaintiff has alleged she was abused while in the care of the Sisters. Movants further argue that even if the plaintiff had been abused at St. Agatha's in Rockland County, New York, the Sisters did not have ownership or control over the facility at the time of the alleged abuse. In support of their argument, Movants provide an affidavit by Sister Donna Dodge and attach an Order of Merger, approving the merger of The New York Foundling Hospital and Saint Agatha Home for Children into The New York Foundling Hospital in May, 1977. Even if Movants had presented this evidence in support of a motion pursuant to CPLR § 3211(a)(1) based on documentary evidence, the motion would fail, as the evidence presented does not "utterly refute[] plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]). Plaintiff alleges the Sisters jointly controlled, managed, and operated St. Agatha's Home after the 1977 merger, during the period while plaintiff was abused (Amended Complaint at ¶77). Further, as far as Movants contend the Amended Complaint should be dismissed as against Sisters because plaintiff does not allege any of the Sisters participated in the sexual abuse, that is irrelevant, as the cause of action against the Sisters sounds in negligent supervision of the employee who abused plaintiff. Plaintiff has stated a claim, and this portion of the motion fails.
Movants also seek to dismiss the claims against defendant Foundling. Movants argue the Amended Complaint is insufficiently specific. However, "[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, 162 [2d Dept 1997]). Further, as discussed above, disputes of fact about where the abuse occurred are not fatal to the Amended Complaint. Movants also contend plaintiff has failed to allege a claim specifically against Foundling. Plaintiff alleges a claim for negligent supervision against Foundling, including that Foundling owed plaintiff a duty of care, had notice that plaintiff was being sexually abused and failed to protect plaintiff and to properly supervise its employee. This is sufficient to survive a motion to dismiss (see Hunter v New York City Dep't of Educ., 95 A.D.3d 719, 719 [1st Dept 2012] [internal quotation marks omitted], quoting Mirand v City of New York, 84 N.Y.2d 44, 49 [1994] [a defendant who "was "under a duty to adequately supervise" plaintiff may "be held liable for foreseeable injuries proximately related to the absence of adequate supervision"]). Finally, as far as Movants take the position that the claim fails for lack of notice because the plaintiff did not allege she informed Foundling of the abuse she suffered, plaintiff alleges that abuse of the residents by John was "rampant, open and notorious, and discussed among the juvenile residents" (Amended Complaint at ¶ 100). A pattern of frequent abuse can support a . claim of constructive notice of an alleged abuser's propensities and conduct (McVawcd-Doe v Columbus Ave. Elementary School, 225 A.D.3d 845, 847 [2d Dept 2024]). Therefore, this portion of the motion also fails and this claim will also survive. The Court has considered Movants' other arguments and found them without merit.
The Cross-Motion of the City of New York (Motion Seq. No. 002)
The City of New York filed an affirmation (NYSCEF Doc. No. 43) in response to Mt. Loretto's motion to dismiss (Motion Seq. No. 002) in which the City takes no position on the motion to dismiss but asks the Court to convert the City's cross-claims into a third-party action against Mt. Loretto in the event Mt. Loretto's motion to dismiss is successful. As the motion to dismiss is denied, this apparent cross-motion is denied as moot.
For the reasons discussed above, it is hereby
ORDERED that the Motion Sequence Numbers 002 and 003 are GRANTED IN PART and DENIED IN PART. The portion of each motion seeking to strike the unqualified term "perpetrator" as used in plaintiffs Amended Complaint is granted and the motions are otherwise denied; and it is further
ORDERED that plaintiff shall, within 20 days from service of a copy of this order with notice of entry, file and serve a supplemental summons and the Amended Complaint, which was filed as NYSCEF Document Number 55, except that the Amended Complaint to be filed shall not reference the unnamed alleged abusers by the unqualified term "perpetrator;" and it is further
ORDERED that the defendants shall answer or otherwise respond to the amended complaint within 30 days from service.
This constitutes the decision and order of the Court.