Opinion
Index No. 950309/2021 Motion Seq. No. 003
12-01-2023
G.B., Plaintiff, v. ARCHDIOCESE OF NEW YORK, ST. DOMINIC'S FAMILY SERVICES, SISTERS OF ST. DOMINIC OF BLAUVELT NEW YORK, DOMINICAN FRIARS PROVINCE OF ST. JOSEPH, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF NEW YORK Defendant.
Unpublished Opinion
MOTION DATE 10/20/2023
DECISION + ORDER ON MOTION
HON. SABRINA KRAUS JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 61, 62, 63, 64 were read on this motion to/for _DISMISS.
BACKGROUND
Plaintiff initiated the instant action pursuant to the New York Child Victims Act ("CVA"). The Complaint alleges that on multiple occasions between approximately 1962 to 1964, when he was approximately six (6) to eight (8) years old, Plaintiff was sexually assaulted by an unknown priest. The sexual assaults perpetrated by an unknown priest ("Unknown Priest") in the confessional of the church located at St. Dominic's Home for Children ("St. Dominic's Home"). The sexual assault perpetrated by Unknown Priest against Plaintiff allegedly included forced oral copulation and sodomy.
The Complaint further alleges that St. Dominic's Home was a residential care facility for orphaned and/or disadvantaged children. At all relevant times Dominican Friars owned, operated, staffed, controlled, maintained, and supervised St. Dominic's Home. It is further alleged in the Complaint that on multiple occasions between approximately 1966 or 1967 through 1969, when Plaintiff was approximately ten to thirteen years old, he was sexually assaulted by Uncle Brucey, full name unknown. The sexual assault perpetrated by Uncle Brucey occurred in an empty classroom on St. Dominic's Home premises and included forced oral copulation and sodomy.
Dominican Friars appeared herein by counsel and filed an answer on August 13, 2021, but now asserts that recent appellate decisions warrant a dismissal of this action pursuant to CPLR §3211 (a)(7).
For the reasons set forth below, the motion is denied.
DISCUSSION
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]). Additionally, "[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 NY3d 11, 19 [2005]).
Movant further argues that recent decisions establish a heightened pleadings standard for cases of this type. See, Moore Charitable Foundation v PJT Partners, Inc., 40 N.Y.3d 150 (June 13, 2023); Doe v. Hauppauge Union Free Sch. Dist., 213 A.D.3d 809 (2d Dept 2023); Easterbrooks v. Schenectady Cnty., 218A.D.3d 969 (3d Dept. 2023).
The standard to sufficiently plead notice to survive a motion to dismiss pursuant to CPLR §3211(a)(7) in a cause of action involving negligent supervision or retention is well established and has been recently reiterated by both the First and Second Departments. See e.g., J.D. v. The Archdiocese of New York, 214 A.D.3d 5 61 (1 st Dept. 2023) and Novak v. Diocese of Brooklyn, et al, 210 A.D.3d 1104 (2022).
To survive a motion to dismiss pursuant to CPLR §3211(a)(7) in such a case, a plaintiff need only allege that an employer knew or should have known of its employee or agent's harmful propensities, that it failed to take necessary action, and that this failure caused damage to others. The cause of action does not need to be pleaded with specificity. See Novak, supra; Kenneth R. v. Roman Cath. Diocese of Brooklyn, 229 A.D.2d 159,162 (2d Dept 1997) Belcastro v Roman Catholic Diocese of Brooklyn, N.Y., 213 A.D.3d 800, 801 [2d Dept 2023]).
The court disagrees with movant's assertion that Moore and Easterbrooks represents a change in the law in this regard.
"Here, at the pleading stage of the litigation where the plaintiffs allegations in the complaint are treated as true and are accorded the benefit of every possible favorable inference, the complaint is sufficiently pled as to the causes of action to recover damages for negligence, including the negligent hiring, retention, and supervision of the priest (see Doe v Enlarged City Sch. Dist. of Middletown, 195 A.D.3d at 596), and inadequate supervision of the plaintiff."Novak 210 A.D.3d at 1105
The court further notes that Moore was not a 3211 decision but involved appellate review of a decision after trial, and that in Doe v. Hauppauge Union Free Sch. Dist., the plaintiff was sexually abused by a teacher employed at Hauppauge High School, when the plaintiff was attending a party at the teacher's home - off school grounds. 213 A.D.3d 809 (2d Dept. 2023).
Similarly, in a recent decision from the Second Department issued after the Moore Charitable Foundation decision. In Grabowski v. Orange County, ____ NY3d ____, 2023 NY Slip Op 04580 (2d Dept, Sept. 13, 2023), the Court upheld New York's liberal pleading standard and found that the Plaintiffs CVA Complaint, "which asserted that the abuse was foreseeable, inter alia, because the County knew or in the exercise of reasonable case should have known of the foster father's propensity to engage in the sexual abuse of children, sufficiently alleged that the County had notice of the dangerous condition at issue such that the abuse could reasonably have been anticipated".
Here Plaintiff has yet to be provided with outstanding discovery and has at this stage of the of the litigation sufficiently pled the causes of action.
WHEREFORE it is hereby:
ORDERED that the motion is denied in its entirety; 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 any relief not expressly addressed has nonetheless been considered and is hereby denied; and it is further
ORDERED that counsel appear for a virtual compliance conference on January 29, 2024, at 12:00 PM.
This constitutes the decision and order of this court.