Opinion
Index No. 950032/2020
01-23-2023
Andrew Fusco, Plaintiff, v. The Archdiocese of New York, Defendant.
Attorneys for Plaintiff Baron & Budd PC Kathryn Pryor, Esq., Rebecca Currier, Esq. Attorneys for Defendants Leahey & Johnson PC Jason Paget, Esq.
Unpublished Opinion
Attorneys for Plaintiff Baron & Budd PC Kathryn Pryor, Esq., Rebecca Currier, Esq.
Attorneys for Defendants Leahey & Johnson PC Jason Paget, Esq.
Alexander Tisch, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 35, 36, 37, 38, 50, 51, 52, 53 were read on this motion to/for AMEND CAPTION/PLEADINGS.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 43, 44, 45, 46, 47, 48, 49, 54, 55, 56, 57, 58 were read on this motion to/for DISMISSAL.
Upon the foregoing documents, plaintiff moves for leave to file and serve a second amended complaint to add a defendant and change the alleged abuser's name from Father Fernando or Fernandez to "John Doe" (motion sequence no. 003). Defendant moves to dismiss the first amended complaint pursuant to CPLR 3211 (a) (7) (motion sequence no. 004).
In determining dismissal under CPLR Rule 3211 (a) (7), the "complaint is to be afforded a liberal construction" (Goldfarb v Schwartz, 26 A.D.3d 462, 463 [2d Dept 2006]). The "allegations are presumed to be true and accorded every favorable inference" (Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]). "[T]he sole criterion is 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" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).
In support of its motion, defendant relies solely on the proposed second amended complaint, which seeks to change Father Fernando or Fernandez to "John Doe," and argues that plaintiff's complaint is fabricated or entirely speculative because plaintiff concedes that he does not know the name of the abuser (see NYSCEF Doc No 44 at ¶ 8). However, issues of credibility and/or "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 N.Y.3d 11, 19 [2005]). As defendant fails to make any argument that the allegations in the first amended complaint fail to state a cause of action, the motion to dismiss is denied.
Defendant's reply makes clear that its motion is against the current, first amended complaint and not against the proposed second amended complaint - and, instead, relies on its affirmation in opposition to plaintiff's motion for leave to amend, which seeks leave to file and serve a second amended complaint to refer to the abuser as "John Doe" (NYSCEF Doc No 58 at ¶ 1).
"Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise resulting therefrom, unless the proposed amendment is palpably insufficient or patently devoid of merit" (Y.A. v Conair Corp., 154 A.D.3d 611, 612 [1st Dept 2017]).
Contrary to defendant's contentions, the Court finds that plaintiff does not need to submit an affidavit explaining the change. Rather, "[o]nce a prima facie basis for the amendment has been established, that should end the inquiry, even in the face of a rebuttal that might provide the ground for a subsequent motion for summary judgment" (Hosp. for Joint Diseases Orthopaedic Inst. v James Katsikis Envtl. Contrs., 173 A.D.2d 210 [1st Dept 1991]; Pier 59 Studios, L.P. v Chelsea Piers, L.P., 40 A.D.3d 363, 365-66 [1st Dept 2007]; M & A Oasis v MTM Assoc., 307 A.D.2d 872, 873-74 [1st Dept 2003] ["defendants did not move for summary judgment; rather, plaintiff moved to amend its complaint. Because plaintiff has established a prima facie basis for its fraud claims, leave to amend should have been granted"]).
Indeed, one of the cases cited in support of the motion (which perhaps inaccurately states a standard of law as if "evidentiary proof" is required), held that the Court could not "conclusively determine whether plaintiff has a cause of action" and indicated that disclosure was needed (see Nab-Tern Constructors v City of New York, 123 A.D.2d 571, 572-73 [1st Dept 1986]; see also Singh v Wesco Ins. Co., 201 A.D.3d 450, 450 [1st Dept 2022] ["because discovery has not been completed, it cannot be said at this stage of the litigation that the allegations are 'patently insufficient' on their face"]).
Under this standard, the Court should examine but should not decide the merits unless it is palpably devoid of merit on its face as a matter of law (see Ancrum v St. Barnabas Hosp., 301 A.D.2d 474, 475 [1st Dept 2003]). Defendant points to no case law showing that the failure to state the alleged abuser's name is an essential element of any of plaintiff's claims, such that, without it, the plaintiff cannot adequately state a claim. Even if it were an essential element, the proposed amended pleading may very well withstand a motion to dismiss under CPLR 3211 (d), as plaintiff set forth specific facts that can be learned through minimal discovery (see NYSCEF Doc No 54). Specifically, plaintiff submitted publicly available information about priests assigned to Most Holy Crucifix that may narrow down the potential abuser (see, e.g., NYSCEF Doc No 56), and the complaint alleges a specific time frame of when the abuse occurred that may further narrow down a list of potential abusers (see John R. Higgit, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, C3211:46 ["It may be unfair to grant the CPLR 3211 motion in a situation in which the opposing party must depend entirely on the moving party's testimony to support her own position"]). Moreover, as there is no opposition to that part of the motion seeking to add the Order of Augustinian Recollects as a defendant, once it is brought it, discovery from that entity may also aid in identifying the abuser.
Although defendant claims prejudice because of having to defend against "fabricated" claims about a "made-up" person (see NYSCEF Doc No 50 at ¶¶ 1, 4), the Court cannot be certain, at this juncture, that the alleged abuser is entirely fictitious and there is no indication that relatively minimal discovery to clarify this issue would be onerous and much too prejudicial to permit the amendment (see Henry v Split Rock Rehabilitation & Health Care Ctr., LLC, 205 A.D.3d 540, 540-41 [1st Dept 2022] ["Simply because defendants may be exposed to greater liability or may be required to spend more time in the preparation of their case does not constitute prejudice to defendants"]).
Accordingly, it is hereby ORDERED that the motion to dismiss the first amended complaint (motion sequence no. 4) is denied; and it is further
ORDERED that the motion for leave to amend the complaint (motion sequence no. 3) is granted; and it is further
ORDERED that the supplemental summons and amended complaint, in the form annexed to the moving papers (NYSCEF Doc Nos 37-38), shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the action; and it is further
ORDERED that a supplemental summons and amended verified complaint, in the form annexed to the motion papers, shall be served, in accordance with the Civil Practice Law and Rules, upon the additional party in this action within 30 days after service of a copy of this order with notice of entry; and it is further
ORDERED that the action shall bear the following caption:
ANDREW FUSCO, Plaintiff, -against
THE ARCHDIOCESE OF NEW YORK; and THE ORDER OF AUGUSTINIAN RECOLLECTS, Defendants.
Index No.: 950032/2020
And it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the party being added pursuant hereto; and it is further
ORDERED that service of this order upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (see section J).
The Protocol is accessible at the "E-Filing" page on the court's website: www.nycourts.gov/supctmanh.
This constitutes the decision and order of the Court.