Summary
dismissing claim against Archdiocese where affidavit averred that Archdiocese was independent from Salesian High School and Salesian Society, where alleged abuse occurred, but denying dismissal as to Salesian Society
Summary of this case from In re The Roman Catholic Diocese of Rockville Ctr.Opinion
Index No. 950303/2020 Motion Seq. Nos. 002 003
07-19-2022
ARK271 DOE, Plaintiff, v. ARCHDIOCESE OF NEW YORK, SALESIANS OF DON BOSCO, SALESIAN HIGH SCHOOL, DOES 1-5 WHOSE IDENTITIES ARE UNKNOWN TO PLAINTIFF Defendant.
Unpublished Opinion
MOTION DATE 02/10/2021, 04/20/2021
DECISION + ORDER ON MOTION
LAURETJCE LOVE, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 16, 17, 18, 30, 31, 32 were read on this motion to/for DISMISS .
The following e-filed documents, listed by NYSCEF document number (Motion 003) 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 46 were read on this motion to/for DISMISS .
Upon the foregoing documents, the decision on defendant, Salesian Society (the "Salesians") motion to dismiss pursuant to CPLR 3211(a)(5) and (7) under motion sequence 002, the decision on defendant, and The Archdiocese of New York's, ("Archdiocese") motion to dismiss pursuant to CPLR 3211(a)(1) and (7) under motion sequence 003 is as follows:
Plaintiff commenced the instant action by filing a summons and complaint in this Child Victims Act action on July 16, 2020 alleging that in approximately 1981, when Plaintiff was approximately 17 years old, Brother Eugene Walter, S.D.B. engaged in unpermitted sexual contact engaged in unpermitted sexual contact with Plaintiff in violation of a criminal statute which qualifies under the CVA, while plaintiff was a student at Salesian High School in New York. Arising from same, plaintiff pleads causes of action of 1) Negligence, 2) Negligent Training and Supervision of Employees, and 3) Negligent Retention of Employees.
Archdisocese seeks dismissal of this action pursuant to CPLR §3211(a)(1). Dismissal under CPLR §3211(a)(1) is warranted where the documentary evidence submitted "resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Fortis Financial Services, LLC v Fimat Futures USA, 290 A.D.2d 383, 383 [1st Dept. 2002]; see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 A.D.3d 431 [1st Dept. 2014]). When assessing the adequacy of a pleading in the context of a motion to dismiss under CPLR §3211(a)(7), the court's role is "to determine whether [the] pleadings state a cause of action" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144 [2002]). To determine whether a claim adequately states a cause of action, the court must "liberally construe" it, accept the facts alleged in it as true, accord it "the benefit of every possible favorable inference" (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881 [2013]; Simkin v Blank, 19 N.Y.3d 46 [2012]), and determine only whether the facts, as alleged, fit within any cognizable legal theory (see Hurrell-Harring v State of New York, 15 N.Y.3d 8 [2010]; Leon v Martinez, 84 N.Y.2d 83 [1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267 [1st Dept. 2004]; CPLR §3026.
Here, the Archdiocese has shown through documentary evidence that it had no affiliation with the Salesians of Don Bosco a/k/a Salesians of St. John Bosco a/k/a Salesians of St. Don Bosco Province of St. Philip the Apostle a/k/a Salesian Society, Province of St. Philip the Apostle, Inc. (hereinafter collectively the "Salesian Society") or the Salesian High School, where the abuse alleged by Plaintiff occurred, and that the Archdiocese employ or supervise the Salesian Society or Salesian High School staff. As established by a deed dated March 22, 1919, The Missionary Society of the Salesian Congregation, Inc. purchased the property where the Salesian High School was located. On January 5, 1939, The Missionary Society of the Salesian Congregation changed their name to Salesian Society. Said deed establishes that the Archdiocese did not own the property where the alleged abuse occurred. Movant also submits the Missionary Society of the Salesian Congregation of the State of New York Certificate of Incorporation which establishes that the School was not and is not owned, operated, managed or controlled by the Archdiocese. Likewise, the Salesians are an independent religious order that is separate and distinct from the Archdiocese. The Archdiocese affixes the Affidavit of Roderick Cassidy, Esq., the Associate General Counsel for the Archdiocese of New York, in further support of its motion. That affidavit avers that the Archdiocese did not own the property where the alleged abuse occurred and that Salesian High School and the Salesian Society are wholly independent from the Archdiocese and that the Archdiocese had no supervisory control over Salesian High School and Brother Eugene Walter, S.D.B., the alleged abuser. In light of the proffered evidence, the Archdiocese has established that it had no connection to the allegations alleged, and therefore had no duty to plaintiff.
In opposition, plaintiff submits several affidavits and supporting documents raising issues of canon law, having no bearing on the instant action, which utterly fail to rebut movant's showing. Considering the documentary evidence submitted, and the lack of evidence rebutting it, dismissal is warranted as against the Archdiocese.
Salesian's first argument 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. E172556/2020, 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. Misc. LEXIS 1964, *15 (N.Y. Sup. Ct., Nassau Cnty. May 11, 2020); Torrey v. Portville Cent. Sch., No. 88476, 66 Misc.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 plaintiff's complaint pursuant to CPLR §3211(a)(5) as time-barred, is denied in its entirety.
"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., 29 N.Y.3d 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 corners 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], lv 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, 84 N.Y.2d at 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 corners 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]).
Plaintiff's complaint alleges causes of action for i. Negligence; ii. Negligent Training and Supervision of Employees, and iii. Negligent Retention of Employees. Redemptorists 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]. Salesians further contend 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 Salesians 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 Br. Eugene's 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]). Moreover, discovery will be necessary before the parties' significant disputes on the issue of notice can be evaluated.
ORDERED that defendant, Archdiocese's motion (Seq. 003) seeking dismissal of this action as against the Archdiocese is GRANTED; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment in defendant ARCHDIOCESE OF NEW YORK's favor accordingly; and it is further
ORDERED that defendant, Salesian Society's motion seeking dismissal of this action is DENIED in their entirety.