Opinion
Index No. 950596/2020 Motion Seq. No. 003
10-12-2023
JOHN DOE, Plaintiff, v. SYRACUSE UNIVERSITY, BOARD OF TRUSTEES OF SYRACUSE UNIVERSITY, CONRAD MAINWARING Defendant.
Unpublished Opinion
MOTION DATE 08/03/2022
DECISION + ORDER ON MOTION
HON. SABRINA KRAUS JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 42, 43, 44, 45, 46, 47, 48, 49, 50 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER .
BACKGROUND
Plaintiff commenced this action under the Child Victims Act seeking damages for sexual abuse he alleges he suffered at Syracuse University.
Plaintiff alleges that Conrad Mainwaring ("Mainwaring") attended Syracuse University in the early 1980s as a student. During that time, Mainwaring also worked for defendant Syracuse University as a tour guide and resident advisor. Prior to attending Syracuse University, Mainwaring allegedly sexually abused multiple boys at camps affiliated with Defendants.
In or around 1981, Plaintiff visited defendant Syracuse University, where Mainwaring took Plaintiff on a tour of the campus. While on the tour, Mainwaring allegedly isolated Plaintiff in a classroom and subjected plaintiff to sexual abuse by grabbing Plaintiffs throat, undoing Plaintiffs pants, and touching, groping, fondling, and masturbating Plaintiffs genitals.
The alleged sexual abuse continued the following year when Mainwaring again cornered Plaintiff in Mainwaring's room on campus and touched Plaintiffs body. Plaintiff ultimately transferred out of Syracuse University because of the sexual abuse he suffered, but not before informing members of Syracuse University's housing authority about what had transpired.
Mainwaring remained at Syracuse University, allegedly sexually abusing other boys and young men before departing in or around 1985. After leaving the school, Mainwaring joined other academic institutions, where he allegedly continued sexually abusing and assaulting other young boys and men until 2019, when the Los Angeles Police Department arrested defendant Mainwaring for prior sexual assaults.
PENDING MOTION
On or about December 3, 2020, Defendants moved to dismiss the complaint. Pursuant to a decision and order dated June 15, 2022, the court (Love, J) granted the motion only to the extent of dismissing the cause of action for intentional infliction of emotional distress and otherwise denied the motion.
On August 3rd, 2022, Defendants moved for renewal and reargument. For the reasons stated below, the motion is denied.
DISCUSSION
"A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." CPLR § 2221(d)(2). The purpose of such a motion is, "to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." Kent v. 534 East 11th Street, 80 A.D.3d 106, 116 (1st Dep't 2010).
Pursuant CPLR Section 2221, "(a) motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination." N.Y. C.P.L.R. R 2221(e)(2). "A motion to renew a prior decision is not intended as a free second bite at the apple." Winograd v. Neiman Marcus Group, 2004 WL 5865219, at *1, 2 (N.Y. Sup. Ct. Westchester Cnty., Mar. 26, 2004).
A motion for leave to renew is appropriate where a change in the law has occurred, or some new fact comes to the fore not previously known to the Court. See Opalinski v. City of New York, 164 A.D.3d 1354, 1355 (2d Dep't 2018); Sicoli v. Riverside Center Parcel 2 Bit Assocs., LLC, 150 A.D.3d 607, 607 (1st Dep't 2017).
CPLR §2221(a) provides that a motion for leave to reargue or renew shall be made to the judge who signed the order unless he is for any reason unable to hear it.
On July 28, 2023, Justice Love was appointed to sit on the Appellate Division, Second Department. On August 18, 2023, Deputy Chief Administrative Judge Deborah A. Kaplan issued an administrative order (AO/131/2023) which provided:
Pursuant to the authority vested in me as Deputy Chief Administrative Judge, and in order to bring about the fair and expeditious resolution of all cases currently pending in New York City under the Child Victims Act (CVA), aggregated pursuant to 22 NYCRR 202.72(1),! hereby direct that those cases previously assigned to the Honorable Laurence Love, be forthwith reassigned to the Honorable Sabrina Kraus due to Justice Love's designation to the Appellate Division, Second Department. Justice Kraus is designated as co-coordinating judge with the Honorable Alexander Tisch for all purposes until further order.
Based on the foregoing, the court holds that Justice Love is unable to hear the motion pursuant to CPLR §2221(a) and that the motion is appropriately before this court for determination.
This Court find no questions of law or fact that were misapprehended by the court in its decision and for said reason leave to reargue is denied. Nor does the court find that the trial court decisions now cited by defendants present a basis for renewal.
WHEREFORE it is hereby:
ORDERED that the motion for leave to renew and reargue is denied in its entirety; and it is further
ORDERED that the parties are to appear for a virtual compliance conference on October 24, 2023, at 12:00 pm; and it is further
ORDERED that, within 20 days from entry of this order, Plaintiff shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh);]; and it is further
ORDERED that this constitutes the decision and order of this court.