Opinion
No. 19596/2011.
07-23-2014
Allene LIDDIE, Plaintiffs, v. Charles COLLYMORE, United Community Church of God, First Church of God, Virginia Robinson, Eastern New York General Assembly of the Church of God Christian Bible Institute a/k/a Christian Bible Institute and Eastern New York General Assembly of the Church of God, Defendants.
Opinion
The following papers numbered 1 to 41 were read on this motion by plaintiff's counsel for an order directing the plaintiff to appear before a court appointed psychiatrist for a psychological evaluation and further directing the plaintiff to appear for a hearing to determine the validity of the plaintiff's deposition testimony taken on February 27, 2013 and to determine whether the plaintiff is mentally competent to execute a stipulation of discontinuance; and the cross-motions of defendants FIRST CHURCH OF GOD, INC. s/h/a FIRST CHURCH OF GOD, VIRGINIA ROBINSON and REVEREND CHARLES COLLYMORE s/h/a CHARLES COLLYMORE for an order pursuant to CPLR 3212 dismissing the plaintiff's complaint:
Papers
Numbered
Plaintiff's Notice of Motion–Affirmation–Exhibits ....... 1–8
Robinson Affirmation in Opposition ...................... 9–13
Collymore Affirmation in Opposition .................... 14–19
Robinson Cross–Motion–Affirmation–Exhibits ............. 20–25
Collymore Cross–Motion–Affirmation–Exhibits ............ 26–31
Plaintiff's Affirmation in Opposition to Cross–Motion ... 32–36
Collymore Affirmation in Reply ......................... 37–39
Robinson Affirmation in Reply ......................... 40–41
Upon the foregoing papers this motion is determined as follows:
In the main action, commenced by the filing of a summons and complaint on August 18, 2011, plaintiff, Allene Liddie, alleges that on December 2, 2010, while attending a bible study class at United Community Church of God, located at 110–10 167th Street, Jamaica, New York, she was sexually assaulted by defendant/third-party plaintiff, Charles Collymore, the Pastor of United Community Church of God. The defendant was arrested, indicted, and charged with rape in the third degree. On April 11, 2011, on consent of the Queens County District Attorney, the rape charges were dismissed by the Queens Criminal Court and defendant pled guilty to the reduced charge of disorderly conduct, a violation, in full satisfaction of the indictment and the matter was adjourned in contemplation of dismissal. The criminal case was subsequently dismissed.
By decision and order dated April 13, 2012, this Court dismissed the plaintiff's complaint against defendant United Church of God on the ground that the complaint failed to state a cause of action against said defendant.
On February 27, 2013, the plaintiff testified at an examination before trial that she was not sexually assaulted by Reverend Collymore as she alleged in the complaint. Reverend Collymore's counsel stopped the deposition after the plaintiff testified that she was not sexually assaulted and asked plaintiff's counsel for a stipulation of discontinuance. Plaintiff's counsel stated that they would seek leave to withdraw as counsel based on the plaintiff's testimony that no sexual attack had occurred.
The plaintiff's attorney filed a Note of Issue on March 19, 2013, stating that discovery was not complete in that defendants' depositions are outstanding and there are issues with regards to the plaintiff's mental competency to proceed. This matter was marked stayed in the Trial Scheduling Part on October 24, 2013.
In the instant order to show cause, plaintiff's counsel alleges that the plaintiff may have been mentally unfit to testify at the deposition and requests that this court appoint a mental health professional to evaluate the plaintiff's fitness to testify at the examination before trial and her fitness to execute a stipulation of discontinuance or to proceed on her own behalf. In support of the motion, the plaintiff's counsel submits an affidavit from the plaintiff's mother, Evette Liddie, stating that her daughter told her in December 2010 that she was sexually assaulted by the defendant. She encouraged her daughter to report the matter to the police and to go to the hospital to be medically and psychologically evaluated. She states that her daughter was diagnosed with bipolar disorder and depression. Although prescribed medication, her daughter often refused to take it. She states that after the alleged incident her daughter went to reside with a sibling in Texas where she received further psychiatric treatment. She states that her daughter did not take her medication one day prior to the deposition nor on the date of the deposition. She states that she believes her daughter is mentally ill and needs to have a guardian appointed.
Defendants oppose the motion on the ground that the plaintiff's counsel did not challenge her fitness to testify prior to the deposition. In addition, defendants' argue that the plaintiff's competence to testify at the examination before trial cannot be determined retroactively. Further, the defendants cross-move for an order granting summary judgment dismissing the plaintiff's complaint on the ground that the plaintiff acknowledged at her deposition that the allegations contained in the complaint were not true.
Defendant Collymore submits an affidavit in support of the cross-motion stating that he is 70 years old and was ordained as a minister in 1972 and has served as Senior Pastor at the United Community Church of God in Laurelton, New York since 1996. He states that beginning in September 2010 he began teaching a bible class on the Book of Romans. The classes were held at the First Church of God. Defendant, Virginia Robinson was the Pastor of the Church. On December 2, 2010, the date of the alleged incident, Pastor Collymore arrived to teach class at 7:30. The plaintiff arrived 15 minutes later at which time they exchanged pleasantries. Plaintiff told him that “someone did something to her, that the person was sick, not in his right mind.” She did not give him any other details. He then told her that the class would be cancelled because no one else showed up. After no more than five minutes, Pastor Virginia Robinson came in. He advised Pastor Robinson that he canceled class because the other students had not come. The three of them left the church together at 7:55 p.m. He learned three days later that the plaintiff had accused him of rape. He states that he did not in any way assault her or rape her. He went to the police who arrested him. He states that the District Attorney dropped the rape charges against him. He seeks dismissal of the complaint based upon the plaintiff's deposition testimony in which she testified, under oath, that defendant Collymore did not sexually abuse her and that no rape or any other physical acts had been committed.
Defendants, First Church of God and Virginia Robinson, cross-move pursuant to CPLR 3211(a)(7) to dismiss the complaint against them on the ground that the complaint fails to state a cause of action. Counsel asserts that the complaint does not allege any claim of direct negligence against them. Rather, the complaint only seeks to hold said defendants liable based upon vicarious liability. However, counsel claims that because the plaintiff testified that the assault did not actually occur, the defendants cannot be held vicariously liable or be held liable for negligent hiring or negligent retention. Counsel claims, in addition, that the defendants cannot be held vicariously liable as defendant Collymore was not an employee of First Church of God at the time of the alleged assault and thus the defendants do not stand in a relationship to him that could give rise to vicarious liability. Further, there is no proof that the alleged sexual assault was in furtherance of the business of First Church of God or Pastor Robinson and was not within the scope of Reverend Collymore's employment as a bible class teacher.
In support of the cross-motion to dismiss, Pastor Robinson submits an affidavit stating that she has been the Pastor of First Church of God for the last 13 years. She states that Pastor Collymore taught a class at First Church of God on December 2, 2010. She states that the class was not offered by the First Church of God, rather, it was held under the auspices of the Eastern New York General Assembly of the Church of God Bible Institute (ENYGA). She is the Dean of ENYGA and in that capacity she arranged for Pastor Collymore to teach Bible classes offered by ENYGA which were conducted on the premises of the First Church of God. Pastor Robinson states that Reverend Collymore was not under the employ of First Church of God nor was he acting on behalf of First Church of God.
Plaintiff's counsel subsequently filed a petition pursuant to Article 81 of the Mental Hygiene Law to have Eugene Liddie, the plaintiff's brother, appointed as her guardian on the grounds that the plaintiff is mentally incapacitated. Plaintiff's counsel informed this court that he would not be able to oppose the motions for summary judgment until the petition for the appointment of a guardian was determined. An order appointing Eugene Liddie as Guardian of the person and property of plaintiff Allene Liddie was signed by Justice Mayersohn on January 14, 2014.
This matter was set down for a conference before this Court in November 2013. At that time the parties stipulated that the caption would be amended to substitute “Eugene Liddie as the Guardian of Plaintiff's Person and Property” as the plaintiff in this matter in place of Allene Liddie. A stipulation substituting Eugene Liddie as plaintiff was drafted by Kathleen Giovacco, counsel for Rev. Charles Collymore and signed by all parties except for the plaintiff's counsel. Ms. Giovacco submitted said stipulation to the Court on May 16, 2014. At the conference, the parties also agreed to a motion schedule for submission of responses to the cross-motions of Reverend Collymore and Virginia Robinson seeking an order dismissing the plaintiff's complaint.
In his affirmation in opposition to the cross-motions to dismiss the complaint, plaintiff's counsel, G. Wesley Simpson, Esq. submits that the defendant has not submitted evidence in admissible form. He states that the affirmation of counsel is not based upon personal knowledge and is without evidentiary value. He states that only Charles Collymore has submitted a factual affidavit in support of the cross-motion for summary judgment. However, citing the defendant's plea allocution in which Reverend Collymore pled guilty to disorderly conduct before Judge Elisa Koenderman in Queens County Criminal Court on April 11, 2011, counsel asserts that there is a question of fact as to whether the defendant actually committed the acts alleged in the complaint. Counsel asserts in that regard that an ACD is not the equivalent of a finding of innocence. Therefore, he claims Reverend Collymore's affidavit is insufficient to support a finding of summary judgment. Further counsel asserts that the plaintiff's deposition, relied upon by the defendant's counsel is inadmissible because it is neither signed by plaintiff nor notarized. Plaintiff's counsel also asserts that the plaintiff contests the accuracy of the deposition transcript given that it was not forwarded to the plaintiff for her review. In addition counsel states that the contents of the plaintiff's deposition transcript is not certified or sworn to by a court reporter.
Further plaintiff asserts that there are questions of fact precluding summary judgment as the plaintiff stated in her deposition that Collymore opened his pants in front of her and committed sexual acts toward her. He stated that plaintiff thereafter changed her testimony and stated that no acts of a sexual nature occurred because defendant's counsel inappropriately intimidated her at the deposition and moreover, he asserts that the medical records show that plaintiff suffers from rape trauma syndrome which explains her false recantation (citing People v. Taylor, 75 N.Y.2d 277 [1990];People v. Grady, 133 Misc.2d 211 [Sup Ct. Bronx Co.1986] ).
Plaintiff also alleges that Collymore's cross-motion for summary judgment is premature as the depositions of defendants Collymore and Robinson are outstanding. Plaintiff states that the deposition of Pastor Robinson is material as she is the only person alleged to have personal knowledge of some of the events of this matter and Reverend Collymore's deposition is material given his admission of guilt at his plea allocution.
Plaintiff's counsel has not opposed the cross-motion of Church of God and Virginia Robinson for an order dismissing the complaint against said parties.
Upon review of the plaintiff's motion and defendants' respective cross-motions and the affirmations in opposition thereto, this Court finds as follows:
The cross-motion of First Church of God, Inc. and Virginia Robinson for an order dismissing the plaintiff's complaint against them is granted without opposition. The eight causes of action alleged against said defendants sound in battery, assault, rape, attempted rape, false arrest, sexual assault, attempted sexual assault and punitive damages. The complaint seeks to hold Pastor Robinson and First Church of God liable based upon vicarious liability. As the alleged acts of sexual assault allegedly committed by Pastor Collymore were not alleged to be in furtherance of defendant's business and are clear departures from the scope of his employment and not reasonably foreseeable, this court finds that the complaint fails to state a cause of action against defendants Virginia Robinson and First Church of God. Neither First Church of God or its Pastor, Virginia Robinson stand in a relationship to Pastor Collymore that could give rise to vicarious liability. An employer may be vicariously liable for the torts of its employee only if those acts were committed in furtherance of the employers business and within the scope of employment (see N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247 [2002] ). Further, the complaint does not allege any direct negligence against said defendants such as negligent hiring or negligent retention (see O'Neil v. Roman Catholic Diocese of Brooklyn, 98 AD3d 485 [2d Dept.2012] ; Jackson v. New York Univ. Downtown Hosp., 69 AD3d 801 [2d Dept.2010] ; Doe v. Rohan, 17 ADd 509 [2d Dept.2005] ; also see this court's decision dated April 13, 2013 dismissing the complaint against defendant United Community Church of God). In view of the foregoing, the motion by defendants First Church of God and Virginia Robinson to dismiss the complaint pursuant to CPLR 3211(a)(7) on the ground that it fails to state a cause of action against them, is granted.
The cross-motion of Reverend Charles Collymore for summary judgment dismissing the plaintiff's complaint based upon the deposition testimony of the plaintiff in which she recanted the allegations of sexual abuse which are the basis of the complaint is denied. This court finds that there are serious questions raised by the evidence submitted as to the mental competence of the plaintiff to testify at a deposition. Following the alleged assault the plaintiff was hospitalized in Texas due to her mental condition. The plaintiff states in her deposition that she was given prescriptions for antipsychotic medications but she did not take them in the days prior to the deposition or on the date of the deposition. Further, the plaintiff has submitted an affidavit from her mother attesting to the fact that the plaintiff had been diagnosed with bipolar disorder and depression and was prescribed medication for her illness. Her mother also states that the plaintiff refuses to take medication and refuses to continue treatments with a psychiatrist. Plaintiff also submitted records from a psychiatric hospitalization for the plaintiff. Therefore this court finds that the there are questions of fact as to the mental competence of the plaintiff at the time of the alleged assault, at the time the complaint was filed and at the time she testified at her deposition (see People v. Gelikkaya, 84 N.Y.2d 456 [1994] ). Although the courts have held that “a person's capacity to be a witness is presumed and a complainant's mental illness does not per se render that person's testimony incompetent or incredible” (People v. Blair, 32 AD3d 613 [3rd Dept.2006] ; also see Matter of Uriah D., 74 AD3d 1194 [2d Dept.2010] ), this court finds that without expert psychiatric evidence there is a question of fact as to the competency of the plaintiff at the time she testified at the deposition. In addition, the plaintiff's deposition was not completed and there are outstanding depositions to be taken of defendants Collymore and Robinson. Therefore, under the circumstances, this court finds that the deposition testimony of the plaintiff is insufficient as a basis to grant summary judgment dismissing the complaint against the defendant.
The plaintiff's motion for a psychiatric evaluation of the plaintiff is granted to the extent that the plaintiff and the defendant, if he be so advised, shall retain their own respective experts to provide psychiatric evaluations of the plaintiff to be used by the plaintiff's court appointed guardian to evaluate whether the plaintiff suffers from mental illness and whether plaintiff's mental condition effects the plaintiff's ability to participate in the continued prosecution of the case. Further, should the case proceed, such psychiatric evaluations may be used by the parties at the time of trial to assess the competency of the plaintiff to testify at trial (see Matter of Getman v. Bernier, 2014 N.Y. Slip Op 5012 [3rd Dept.2014][a trial court has the authority to make a preliminary inquiry as to a witness' competency to testify at trial] ).
Accordingly, it is hereby,
ORDERED that all stays in this matter are lifted and the parties shall complete discovery, including outstanding depositions and independent psychiatric evaluations by December 19, 2014. The parties shall restore the matter to the trial calendar by stipulation no later than January 15, 2015. and it is further,
ORDERED, that the caption shall be amended to substitute “Eugene Liddie as Guardian of the Person and Property of Allene Liddie” as the plaintiff in this matter.