Opinion
Index No. 151501/2020 Motion Seq. No. 001 002 005
01-13-2022
ANTHONY J. GORGIA Plaintiff(s), v. TIMOTHY DOLAN et al Defendant(s)
Plaintiffs Attorney: Raymond Belair, Esq. Defendants' the NAC, Harman, Park, and McDonald Attorneys: James Lemonedes, Esq.; Matthew Berger, Esq,; David Kinkopf, Esq.; and Joseph C. Dugan, Esq. Defendants' Dolan and the ADNY Attorneys: Peter Johnson, Esq.; John Connors, Esq.; and Joanne Filberi, Esq,.
Unpublished Opinion
Plaintiffs Attorney: Raymond Belair, Esq.
Defendants' the NAC, Harman, Park, and McDonald Attorneys: James Lemonedes, Esq.; Matthew Berger, Esq,; David Kinkopf, Esq.; and Joseph C. Dugan, Esq.
Defendants' Dolan and the ADNY Attorneys: Peter Johnson, Esq.; John Connors, Esq.; and Joanne Filberi, Esq,.
DECISION AND ORDER
Lizette Colon Judge
The following papers numbered 1-20 were fully submitted on the 5th day of January 2022.
Summons with Notice---------------------------------------------------------------------- 1
Affidavits of Service for All Defendants - Service of Amended Summons with Notice------------------------------------------------------------------------------------------ 2
Defendants' Demands for Complaint----------------------------------------------------- 3
Plaintiffs Verified Complaint (Exhibits Annexed)------------------------------------- 4
Defendants the NAC, Harman, Park, and McDonald's Motion (MS#001) (Exhibits Annexed)------------------------------------------------------------------------- 5
Memorandum of Law in Support of Motion (MS#001) (September 21, 2021)-- 6
Affirmation of James Lemonedes, Esq. in Reply and Support of Motion (MS#001) (Exhibits Annexed) (September 21, 2021)---------------------------------- 7
Affirmation of Richard Belair, Esq. in Opposition to Motion (MS#001) and in Support to Cross-Motion (MS#005) (November 4, 2021)----------------------------- 8
Corrected Affirmation of Richard Belair, Esq. in Opposition to Motion (MS#001) and in Support to Cross-Motion (MS#005) (Exhibits Annexed) (November 4, 2021)------------------------------------------------------------------------- 9
Memorandum of Law in Reply and Opposition to Motion (MS#001) (November 4, 2021)--------------------------------------------------------------------------------- 10
Defendants Dolan and the ADNY's Motion (MS#002) (Exhibits Annexed)-------- 11
Memorandum of Law in Support of Motion (MS#002) (April 12, 2021)----------- 12
Affirmation of Peter Johnson, Esq. in Reply and Support of Motion (MS#002) (Exhibits Annexed) (September 21, 2021)----------------------------------------------- 13
Memorandum of Law in Reply and in Further Support of Motion (MS#002) (September 21, 2021)------------------------------------------------------------14
Affirmation of Richard Belair, Esq. in Opposition to Motion (MS#002) and in Support to Cross-Motion (MS#005) (November 4, 2021)------------ 15
Corrected Affirmation of Richard Belair, Esq. in Opposition to Motion (MS#001) and in Support to Cross-Motion (MS#005) (Exhibits Annexed) (November 4, 2021)------------------------------------------------------------------------- 16
Memorandum of Law in Opposition to Motion (MS#002) and in Support of Cross Motion (MS#005) (Exhibits Annexed) (November 4, 2021)------------------- 17
Plaintiffs Cross-Motion (MS#005) (Exhibits Annexed)------------------------------- 18
Memorandum of Law in Support if Cross-Motion (MS#005) (June 20,2021)..... 19
Memorandum of Law in Opposition of Cross-Motion (MS#005) (September 21, 2021)------------------------------------------------------------------------------------- 20
The court marked motions MS#001 and MS#002 as well as cross-motion MS#005 fully submitted on the 5th day of January 2022. The court grants MS#001 in its entirety. MS#002 is granted to the extent that the complaint against the defendants Timothy Dolan ("Dolan") and The Roman Catholic Archdiocese of New York ("ADNY") is dismissed. The court declines to impose sanctions on Plaintiff. MS#005 is granted in part and denied in part. Hearing no objection from Defendants, the court grants the portion of MS#005 requesting the discontinuance of the Sixth, Ninth, Eleventh, and Twelfth causes of action in the complaint. The Court denies the portions of the cross-motion requesting an order permitting late service of the complaint and directing Dolan and the ADNY to accept the complaint as well as the portion requesting leave to amend the complaint.
PROCEDURAL HISTORY
This action was commenced with the filing of a Summons with Notice on September 7, 2020.Plaintiff Anthony Gorgia ("Plaintiff) thereafter filed Affidavits of Service stating that Defendants The Pontifical North American College ("NAC"), Adam Park ("Park"), Peter Harman ("Harman"), John Geary McDonald ("McDonald"), the ADNY, and Dolan ("Defendants") were served with an "Amended Summons With Notice." (NYSCEF Docs 2-8). Although this Amended Summons with Notice is attached to the Affidavits of Service for Park and the NAC, this document was not independently uploaded to NYSCEF. (NYSCEF Docs 2 and 3). Almost four months later, on December 29, 2020, the NAC, Park, Harman, and McDonald filed a Demand for a Complaint. (NYSCEF Doc 9). Soon thereafter, on January 4, 2021,the ADNY and Dolan also filed a Demand for a Complaint. (NYSCEF Doc 10). The ADNY and Dolan then reiterated their demand and filed a second Demand for a Complaint on January 6,2021. (NYSCEF Doc 11).
Plaintiff served all defendants with a Verified Complaint on February 3, 2021. This Complaint alleged twelve (12) causes of action seeking relief for Sexual Orientation Discrimination under NYSHRL against all defendants. Disability Discrimination under NYSHRL against all defendants, Breach of Fiduciary Duty against all defendants, Breach of Fiduciary Duty against Dolan and the ADNY, Fraud and Deceit against all defendants, Violation of Title VII of the Civil Rights Act of 1964 against all defendants, Infliction of Emotional Distress against Dolan, Park, Harman, McDonald, and the NAC, Malicious Interference with Prospective Economic Advantage against Park, Harman, McDonald, and the NAC, Sexual Harassment and Maintenance of a Hostile Work Environment against all defendants, Wrongful Discharge in Violation of Organizational Policy against all defendants, Defamation and Slander against Dolan, and Defamation and Slander against Harman.
On April 12, 2021, the NAC, Park, Harman, and McDonald filed a motion (MS#001) to dismiss Plaintiffs complaint against them. On the same date, the ADNY and Dolan also filed a motion (MS#002) for an order dismissing Plaintiffs complaint and imposing sanctions on Plaintiff pursuant to 22 NYCRR §130. On June 20, 2021, Plaintiff filed a cross-motion (MS#005) for an order permitting the late service of the complaint upon Dolan and the ADNY and directing these defendants to accept the complaint. Plaintiff also sought leave in his cross-motion to discontinue the Sixth, Ninth, Eleventh, and Twelfth causes of action. He further asked the court for leave to amend the complaint to assert additional claims for Breach of Implied Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing, This court held oral arguments on MS#001, MS#002, and MS#005 remotely using Microsoft Teams on January 5, 2022. All parties appeared though their attorneys.
NARRATIVE
Plaintiff was accepted as a seminarian for the ADNY in March of 2015. He began pre-theology studies in August of 2015 with the goal of becoming ordained as a priest. In January of 2017, Dolan, in his role as head of the ADNY, nominated Plaintiff for admission to the NAC for further continuance of his seminarian studies. Soon after Plaintiffs acceptance into the seminary, Dolan wrote a letter to the NAC approving Plaintiffs enrollment and stating that the ADNY would take full fiscal, medical, and legal responsibility for Plaintiff (NYSCEF Doc 106). Plaintiffs academic performance during his first year at the NAC was reportedly very good. (NYSCF Doc 18 and 19). Plaintiff also participated in other pastoral activities during this period such as assisting Dolan at Christmas Eve mass, carrying the papal mitre during a mass, and evangelizing and providing other services to the pilgrims at the Sanctuary of Our Lady of Lourdes in Lourdes, France. (NYSCEF Docs 126 and 127).
The events that are the subject of the complaint allegedly occurred during Plaintiffs first semester of his second year at the NAC. According to Plaintiff, sometime in the beginning of the semester, he witnessed Park give a "back rubbing massage" to another seminarian in a public area. (Complaint Para 23). Plaintiff affirms in his complaint that although he disapproved of this perceived homosexual activity, he did not report the incident to anyone. (Complaint Para 25). Plaintiff asserts, however, that Park knew that he witnessed this "back rubbing massage" and understood that he objected to this behavior. (Complaint Para 23). On October 17, 2018, Harman expressed concerns that Plaintiff was not progressing in the area of Human Formation as quickly as he should. Namely, Harman allegedly told Plaintiff that he "presented himself as an 'old man'" and as someone who "did not like to 'try new things.'" (Complaint Para 37). Shortly thereafter, on October 27, 2018, Plaintiff was informed by his doctor that he needed to return to the United States for spinal surgery. (Complaint Para 27). Plaintiff then met with his advisor, McDonald, to determine how to obtain permission to return to the United States and develop a plan to continue his studies remotely while recovering from this medical procedure. (Complaint Para 34). Plaintiff asserts that he followed the instructions that McDonald provided to him, obtained the proper permissions, and ultimately returned to the United States. (Complaint Para 34; NYSCEF Doc 103).
On December 13, 2021, approximately five (5) days before Plaintiff was scheduled to return to Rome, Plaintiff received a letter from Dolan stating that he would not be permitted to return to the NAC for the Spring semester. Dolan stated that the NAC expressed concerns that Plaintiffs "lengthy absence from the university seminary compromise[d] the integrity of the entire first semester of [his] second year;" regarding his leave for urgent surgery, Plaintiff "informed [the NAC] that the archdiocese had approved [his] return home before seeking permission from the college;" and that Plaintiffs formation advisor 'brought to [his] attention some concerns about [his] slow progress in [his] human formation" which Plaintiff had been "resistant to hearing ... and acting upon." (NYSCEF Doc 48). Dolan informed Plaintiff that he would be reassigned to a parish from January of 2019 through August of 2019 and that upon completion of the assignment, Plaintiff would be reevaluated for admission to the NAC. (NYSCEF Docs 48 and 49). If accepted back to the NAC, Plaintiff would be required to repeat the first semester of his second year. (NYSCEF Doc 48). Despite Plaintiffs strenuous objections to this proposal, Dolan refused to meet with Plaintiff to discuss this matter further. (NYSCFE Docs 54, 55, and 56; Complaint Para 30). Plaintiff declined to acquiesce to what he viewed as a punitive assignment and resigned from the seminary. (NYSCEF Doc 55).
DISCUSSION
MS#001
The Complaint Must be Dismissed as to Defendants the NAC, Park. Barman, and McDonald as This Court Cannot Exercise Personal Jurisdiction Over These Defendants
Plaintiff seeks to have this court exercise personal jurisdiction over the NAC, Harman, Park, and McDonald pursuant to CPLR §302(a)(1), CPLR §302(a)(3)(i), and CPLR §302(a)(3)(ii).
NY CPLR Article 3 §302(a) - Personal Jurisdiction by Acts of Non-Domiciliaries
As it pertains to the instant action reads:
(a) "A court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or owns, uses or possesses any real property situated within the state."CPLR §302(a).
Concerning the NAC, this Court holds that it is unable to exercise personal jurisdiction over the entity. The NAC is a foreign corporation registered in Maryland with its principal place of business in Washington, D.C. (NYSCEF Doc 53; Harman Affidavit Para 8). The corporation does not own or use any property in New York. (Harman Affidavit Para 9). Plaintiff argues, however, that the NAC transacts businesses in New York State by receiving seminarian tuition from various dioceses and fundraising. Although CPLR §302(a)(1) provides for personal jurisdiction over a non-domiciliary defendant who transacts business within the state, jurisdiction can only be exercised if there is a "substantial relationship between the transaction and the claim asserted." Paterno v. Laser Spine Inst, 24 N.Y.3d 370, 376 (2014); see also CPLR §302(a)(1). Here, Plaintiff has been unable to demonstrate a substantial nexus between the tuition dollars and fundraising monies that the NAC receives and any of Plaintiff s causes of action. Likewise, Plaintiff has failed to establish that the NAC's conduct caused an injury that would subject them to New York State's long-arm jurisdiction pursuant to CPLR §302(a)(3)(i) or CPLR §302(a)(3)(ii). For the purposes of such jurisdiction, the court must determine whether the situs of the injury, "the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff," was in New York State. Bloomgarden v. Lanza, 143 A.D.3d 850, 852 (A.D.2d Dep't 2016). The residence of the injured party is not enough to satisfy this statutory requirement. Id. Given the facts alleged in the complaint, the situs of all the NAC's alleged tortious activity was Rome, Italy. This court further declines to hold that the Plaintiffs seemingly arbitrary calculation of the amount of money that the NAC receives in tuition payments from New York dioceses and his representation that the entity receives fundraising monies, without more, is not enough to satisfy the requirements of CPLR §302(a)(3)(i) or (ii).
This court cannot exercise personal jurisdiction over Harman pursuant to CPLR §302(a)(1) or (3). Harman was living and working in Rome, Italy during the events recounted in the complaint. (Harman Affidavit Para 17). Plaintiff asserts that Harman's contact with the ADNY to discuss New York based seminarians and his unspecified role in recruiting seminarians and fundraising in New York constitutes transacting business in the state. This court does not agree with Plaintiffs characterization. Harman affirmed that out of the one hundred sixty-three seminarians (163) at the NAC, only nine (9) are currently from New York. (Harman Affidavit Para 15). He affirmed that he communicates sporadically with the individual home-dioceses for these New York based seminarians. (Harman Affidavit Para 20). This court declines to hold that such infrequent activity satisfies the requirements of CPLR §302(a)(1). Plaintiff has not presented evidence concerning the extent of Harman's role in fundraising for the NAC or demonstrated that he conducts any other activities in New York personally or on behalf of the NAC. Plaintiffs allegation that Harman's email to Dolan in December of 2018 resulted in a tort causing injury within New York is not sufficient to satisfy the requirements of CPLR §302(a)(3)(i) or (ii) without Harman conducting additional and more pervasive activities in the state. As such Plaintiffs complaint as to Harman is dismissed for lack of personal jurisdiction.
Plaintiff has failed to articulate a basis for the court to exercise personal jurisdiction over Park. He has not submitted proof of Park conducting any business activities in or having persistent contact with New York State. Instead, Plaintiff asserts that he does not know and cannot ascertain the "extent of [defendant's] business activity in New York." (NYSCEF Doc 92 Para 13). This court will not exercise jurisdiction over a non-domiciliary based on mere speculation. As per Park's Affirmation, he was last present in New York in 2003. (Park Affidavit Para 11). He does not own property in New York State. (Park Affidavit Para 12). Park affirms that he only communicates with individuals in New York once or twice a year in his role as Vice Rector of the NAC. (Park Affidavit Para 13). Such activity is not sufficient for this court to exercise personal jurisdiction pursuant to CPLR§ 302(a)(1) or (3). Plaintiff has further failed to allege that any of Park's actions or communications resulted in a tort causing injury in New York. Plaintiff s complaint as to Park is thereby dismissed for lack of personal jurisdiction.
Plaintiff has also failed to articulate a basis for asserting personal jurisdiction pursuant to CPLR§ 302(a)(1) or (3) over McDonald. As per McDonald's Affidavit, during the relevant period, McDonald was living and working in Rome, Italy. (McDonald Affidavit Para 10). He currently resides in Alabama and was last present in New York in 2011. (McDonald Affidavit Para 13). Plaintiff has neglected to demonstrate how McDonald transacts business or engages in persistent conduct in New York. He has additionally failed to identify which of McDonald's alleged tortious actions resulted in injury occurring in New York. As such, Plaintiffs complaint as to McDonald is dismissed for lack of personal jurisdiction.
The court's exercise of jurisdiction over the NAC, Harman, Park, and McDonald would also be improper as it would violate the Due Process Clause of the U.S. Constitution. "Federal Due Process requires that a defendant have 'minimum contacts' with the forum state such that the defendant 'should reasonably anticipate being haled into court there.'" D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 300 (2017). As discussed in the above section, the Affidavits provided by Harman, Park, and McDonald demonstrate that these individuals have extremely limited or nonexistent contacts with New York State. All of these defendants currently reside outside of New York. Similarly, the NAC as a corporation does not have any contacts with New York beyond fundraising and the seminarians who attend the institution. Given the dearth of contacts, it is unlikely that these defendants would anticipate being involved in New York litigation. Requiring participation of these out-of-state defendants would not be reasonable and would violate the Due Process Clause of the U.S. Constitution.
The Complaint is Alternatively Dismissed Against the NAC, Harman, Park, and McDonald as Plaintiff Failed to Properly Serve These Defendants with the Summons with Notice.
In addition to the jurisdictional issues described above, this action is also procedurally deficient. The documentation presented in NYSCEF Docs 2-6 indicates that the NAC, Harman, Park, and McDonald were served with an Amended Summons with Notice, which has not been filed with the court. It does not appear that these defendants were ever served with the Summons with Notice that initiated the action. (NYSCEF Doc 1). Pursuant to CPLR §306-b such service is mandated to occur within one hundred twenty (120) days after filing. (NYSCEF Doc 1).
If the purported service of the Amended Summons with Notice initiated the action as to Harman and Park, Plaintiffs service of this document was deficient. In New York, service of the Summons with Notice must be served by personal service pursuant to CPLR §308(2) or, alternatively, by mail pursuant to CPLR §312-a. Service upon a foreign defendant may be made out-of-state in the same manner as service is made within the state. See CPLR §313.
NY CPLR Article 3 §308 - Personal Service Upon a Natural Person
As it pertains to the instant action reads:
Personal service upon a natural person shall be made by any of the following methods:
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend 'personal and confidential' and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other."
NY CPLR Article 3 S312-a - Personal Service by Mail
As it pertains to the instant action reads:
(a) Service. As an alternative to the methods of personal service authorized by section ... 308 ... a summons and notice ... may be served by the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage prepaid, a copy of the ... summons and notice ... together with two copies of a statement of service by mail and acknowledgement of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender.
Plaintiff served an Amended Summons with Notice on Harman and Park at the NAC at its Washington, D.C. address. This was not the defendants' actual place of business and does not constitute proper service as per CPLR §308. Plaintiff also mailed these defendants a copy of the Amended Summons with Notice in Rome, where the two men were working and residing. Although this mailing is deficient on the basis that the Summons with Notice was never sent to the defendants, if the Amended Summons with Notice was accepted, the effectuated service by mail is still deficient pursuant to CPLR §312-a. Plaintiff has not provided any proof that he mailed to defendants "two copies of a statement of service by mail and acknowledgement of receipt ... with a return envelope, postage prepaid, addressed to the sender." CPLR §312-a. The complaint must be dismissed as to Harman and Park due to lack of service of the Summons with Notice and, alternatively, improper service of the Amended Summons with Notice.
MS#002
The Complaint is Dismissed Against Defendants Dolan and the ADNY Due to the Action's Procedural Deficiencies
Plaintiff failed to serve Dolan and the ADNY with the Summons with Notice initiating the action. Pursuant to CPLR §306-b such service is mandated to occur within one hundred twenty (120) days after filing. (NYSCEF Doc 1). Instead, Dolan and the ADNY were served with an Amended Summons with Notice, which has not been filed with the court. (NYSCEF Doc 7 and 8). Despite being notified about the procedural deficiencies with service, Plaintiff failed to remedy the issue.
Plaintiff also failed to timely file and serve the complaint. As per CPLR §3012(b), "service of the complaint shall be made within 20 days after service of the demand." Dolan and the ADNY first filed a demand for a complaint on January 4, 2021 and reiterated their demand on January 6, 2021. Plaintiff served the complaint upon defendants on February 3, 2021, thirty (30) days from the first demand and twenty-eight (28) days from second demand. Plaintiff has stated the reason for this delay stemmed from law office failure in meeting with his client, partly due to the COVID-19 pandemic and Plaintiffs grandmother's death, as well as his receiving complaint revisions from outside sources. Plaintiff asserts that the delay was de minimus and did not prejudice the defendants.
Additionally, Plaintiff failed to property verify the complaint as it was signed by Plaintiffs attorney and not plaintiff himself. Plaintiffs attorney has stated that he signed the document because he was unable to meet with Plaintiff and did not wish to further delay filing the complaint. While not fatal to this action, the fact that Plaintiffs attorney was not able to verify the complaint with knowledge of the events stated therein is problematic. Pursuant to CPLR §3022, this improperly verified complaint should be treated as an unverified pleading.
While this court is sympathetic to the difficulties Plaintiff faced in filing the complaint, the procedural deficiency in this action necessitates its dismissal as to Dolan and the ADNY.
The First. Second. Sixth, Ninth, and Tenth Causes of Action in the Complaint Must be Dismissed as to Dolan and the ADNY as This Court Does Not Have Subject Matter Jurisdiction Pursuant to the Church Autonomy Doctrine and the Ministerial Exception
The Church Autonomy Doctrine, which is derived from the First Amendment Establishment Clause, bars the government from interfering with matters of church governance and the determinations of ecclesiastical questions. Pursuant to this, the Ministerial Exception, grants religious organizations the right to determine who will carry out its religious mission. In the case of Hosanna-Tabor Evangelical Lutheran Church & Sch v. EEOC, the United States Supreme Court affirmed the Ministerial Exception and held that ""requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so ... interferes with the internal governance of the church." 565 U.S. 171, 188 (2012).
Although the Court in Hosanna-Tabor declined to adopt a ridged framework for determining which individuals qualified as ministers, the Court took a holistic approach and considered the full scope of plaintiffs position within the church. See Hosanna-Tabor Evangelical Lutheran Church & Sch, 565 U.S. 171, 188 (2012). The Court further considered the plaintiffs formal title, the substance reflected in that title, plaintiffs own use of that title, and the important religious functions that plaintiff performed. Id. Applying the same framework to the case at bar, it is apparent that plaintiff was a minister of the Catholic Church. Plaintiff was a seminarian - a priest in training. While at the NAC, Plaintiff engaged in pastoral life, dressed himself in priest-like clothing, and took classes on how to be an effective priest, evangelizer, and minister. He also assisted Dolan at Christmas Eve mass, held the papal mitre at a mass, and evangelized and provided services to the pilgrims visiting Lourdes, France. In his own evaluation of his time at the Sanctuary of Our Lady of Lourdes, Plaintiff recounts his "ministry in Lourdes" and how "many of the words [he] shared with pilgrims were insights received in prayer." (NYSCEF Doc 127).
Given Plaintiffs position as a minister of the Catholic Church, this court is barred by the ministerial exception from opining on Plaintiffs employment law claims against Dolan and the ADNY, which are reflected in the First, Second, Sixth, Ninth, and Tenth causes of action in the complaint. It is of no consequence that Plaintiff is not requesting reinstatement to the seminary. Awarding Plaintiff damages for these causes of action would implicate the Ministerial Exception. As such, the First, Second, Sixth, Ninth, and Tenth causes of action in the complaint are dismissed as to Dolan and the ADNY.
The First, Second Fifth, Sixth, Seventh, Ninth, and Tenth Causes of Action in Plaintiff's Complaint as to Dolan and ADNY are Alternatively Dismissed for Failure to State a Claim
On a motion to dismiss a cause of action pursuant to CPLR §3211(a)(7), 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.' Kenneth R. v. Roman Catholic Diocese, 229 A.D.2d 15, 161 (App. Div. 2 Dep't 1997). Such determinations can be made from the factual allegations stated in the four corners of the complaint. Id.
This court maintains that Plaintiffs First, Second, Sixth, Ninth, and Tenth causes of action are barred by the ministerial exception. However, even if the ministerial exception did not apply, these causes of action would be dismissed as they are limited to actions between employers and employees. Plaintiff has failed to show that he was an employee of Dolan and/or the ADNY. Although he has submitted two documents to the Court, a bank statement and a confirmation of healthcare benefits, to prove this assertion, this court does not find these documents to be persuasive, as neither document states that Plaintiff was an employee. (NYSCEF Doc 147 and 148). Rather, these documents seem to reflect the representation that Dolan made to the NAC that the ADNY would take full fiscal, medical, and legal responsibility for Plaintiff. (NYSCEF Doc 106).
Plaintiffs Fifth cause of action for Fraud and Deceit is also dismissed. An action for fraud and deceit requires Plaintiff to identify misrepresentations made by defendants that he relied upon to his detriment. Although Plaintiff claims that defendants Dolan and the ADNY spread a false narrative about him, thereby causing him injury, he does not identify any misrepresentations made by these parties that he specifically relied upon. In the absence of such misrepresentation, Plaintiff cannot proceed with his Fifth cause of action.
Plaintiffs Seventh cause of action for Infliction of Emotional Distress is likewise dismissed. Plaintiffs complaint does not identify any extreme or outrageous conduct by Dolan that resulted in Plaintiffs emotional distress. He merely identifies as the cause of his emotional distress Dolan's December 13,2018 and January 2,2019 letters which detail Harman's assessment of Plaintiff s performance at the NAC and establish a plan for Plaintiff to continue his seminary studies. Plaintiff implies that Dolan's acceptance of Harman's report caused him emotional distress because Dolan knew or should have known that Harman was perpetuating a false narrative. Such a claim does not constitute extreme or outrageous conduct.
Defendants Dolan and the ADNY's Request for Sanctions Pursuant to 22 NYCRR $130 is Denied
Pursuant to 22 NYCRR §130-1.1 (a), "the Court, in its discretion, may award to any party or attorney in any civil action or proceeding before this court, except where prohibited by law, costs in the form of reimbursements for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct." Conduct is frivolous if (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, to harass or maliciously injure another; or (3) it asserts material factual statements that are false. 22 NYCRR §130-1.1(c). The Court finds that Plaintiffs actions in filing his complaint were not frivolous as defined in 22 NYCRR §130-1.1(c) and were made with a good faith basis. The imposition of sanctions is not warranted.
MS#005
Plaintiff's Request for the Court to Permit Late Service of the Complaint and Order Defendants to Accept the Complaint is Denied
In his request for relief, Plaintiff asks the court to permit late service of the complaint pursuant to CPLR §2215. This section of the CPLR is not the proper provision for the relief requested as it exclusively provides guidance on how a non-moving party can file a cross-motion. Plaintiff does cite the appropriate CPLR provisions, however, in his Affirmation in Support of his Cross-Motion (MS#005). Pursuant to CPLR §3012(d), "upon application of a party, the court may ... compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default." CPLR §2005 states the Court may, in its discretion, excuse a delay resulting due to law office failure.
Plaintiffs attorney admits that the complaint was filed more than twenty (20) days after Defendants filed their demands on December 29, 2020, January 4, 202 Land January 6, 2021. (NYSCEF Doc 9-11). He asserts that this delay was reasonable as it was due to his inability to meet with his client, the COVID-19 pandemic, the death of Plaintiff s grandmother, and his receipt of document revisions from outside sources. Plaintiff further claims that the delay was de minimus. Defendants have not described how they were prejudiced by the late filing.
The court is not inclined to excuse the delay and compel defendants to accept the complaint given the existing and uncorrected defects contained within the complaint and in MS#005. As previously discussed, Plaintiff failed to serve defendants with the Summons with Notice and, instead, served defendants, albeit improperly for some, with an Amended Summons with Notice. Plaintiff has not sought to correct these defects despite being on notice for several months. Plaintiffs attorney also filed the verified complaint late and without the Plaintiffs signature. As per CPLR §3022, the complaint cannot be considered verified due to the signees lack of actual knowledge. This portion of Plaintiff s cross-motion is denied due to these procedural deficiencies.
The Sixth, Ninth, Eleventh and Twelfth Causes of Action are Discontinued as Per Plaintiff's Request
Defendants did not express any objection to the discontinuance of the Sixth, Ninth, Eleventh, and Twelfth causes of action during oral argument on January 5, 2022. These causes of action are thereby discontinued as per Plaintiffs request.
Plaintiff is Not Permitted to Amend his Complaint to Add Additional Causes of Action for Breach of Implied Contract and Breach of the Implied Covenant of Good Faith and Fair Dealins as well as any Other Causes of Action Described in Plaintiff's Affirmation in Support of MS#005
Pursuant to CPLR §3025(b), "any motion to amend or supplement a pleading shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions made to the pleading." Plaintiff failed to attach his proposed amended complaint when he filed MS#005 on June 20, 2021. Instead, he filed the proposed amended complaint on November 4, 2021 as Exhibit P to Plaintiffs Reply in Support of MS#005 (NYSCEF Doc 158).
Additionally, in MS#005's Notice of Cross-Motion, Plaintiff requests that the complaint be amended to add causes of action for Breach of Implied Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing. However, Plaintiff explicitly argues in his Affirmation in Support that the complaint should be amended to include an additional claim for Interference with Prospective Economic Advantage against Dolan and the ADNY. This cause of action is not included in the proposed amended complaint. Plaintiffs request for leave to amend is denied as it is procedurally defective.
Accordingly, it is hereby
ORDERED, that defendants NAC, Harman, Park, and McDonald's motion (MS#001) for an order pursuant to CPLR §3211 dismissing the Plaintiffs complaint against them is granted; and it is further
ORDERED, that the portion of defendants Dolan and ADNY motion (MS#002) for an order dismissing Plaintiffs complaint against them based on Plaintiffs failure to timely serve the complaint is granted; and it is further
ORDERED, that the portion of defendants Dolan and ADNY motion (MS#002) dismissing Plaintiffs complaint against them pursuant to CPLR §3211(a)(2) based on the Court's lack of subject matter jurisdiction pursuant to the First Amendment of the United States Constitution and the Ministerial Exception Doctrine is granted as to the First, Second, Sixth, Ninth, and Tenth causes of action; and it is further
ORDERED, that the portion of defendants Dolan and ADNY motion (MS#002) dismissing Plaintiffs complaint against them pursuant to CPLR §3211(a)(7) based on Plaintiffs failure to allege facts sufficient to state a cause of action is granted as to the First, Second, Fifth, Sixth, Seventh, Ninth, and Tenth causes of action; and it is further
ORDERED, that the portion of defendants Dolan and ADNY motion (MS#002) for an order imposing sanctions upon Plaintiff is denied; and it is further
ORDERED, that the portion of Plaintiffs cross-motion (MS#005) for an order pursuant to CPLR §2215 permitting late service of the Complaint upon Dolan and ADNY, nunc pro tunc and directing that said defendants accept the complaint on the basis that plaintiff has both a viable cause of action and a reasonable explanation for the delay is denied; and it is further
ORDERED, that the portion of Plaintiffs cross-motion (MS#005) asking for leave to discontinue the Sixth, Ninth, Eleventh, and Twelfth causes of action in the complaint is granted without objection. The Sixth, Ninth, Eleventh, and Twelfth causes of action are hereby discontinued; and it is further
ORDERED, that the portion of Plaintiff's cross-motion (MS#005) for an order granting Plaintiff leave to amend his complaint to assert additional claims for Breach of Implied Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing is denied.