Opinion
05-01-2024
Bruce H. MORRISON, Sr., appellant, v. NEW YORK ARCHDIOCESE, et al., defendants, American Legion, respondent.
Nagel Rice, LLP, New York, NY (Bradley L. Rice of counsel), for appellant. Kiernan Trebach LLP, New York, NY (Alexander H. Gillespie and John A. Kiernan of counsel), for respondent.
Nagel Rice, LLP, New York, NY (Bradley L. Rice of counsel), for appellant.
Kiernan Trebach LLP, New York, NY (Alexander H. Gillespie and John A. Kiernan of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for negligence, the plaintiff appeals from an order of the Supreme Court, Richmond County (Alexander M. Tisch, J.), dated November 2, 2022. The order, insofar as appealed from, granted the motion of the defendant American Legion pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action under the Child Victims Act (see CPLR 214–g) against the defendant American Legion (hereinafter the defendant), among others, alleging that the defendant was liable under different theories of negligence for sexual abuse perpetrated by the coach of the plaintiff’s youth baseball team in a league associated with the defendant. The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the second amended complaint insofar as asserted against it on the ground that it did not owe a duty to the plaintiff, as it did not have sufficient control over the league or team. In an order dated November 2, 2022, the Supreme Court, inter alia, granted the motion. The plaintiff appeals.
[1–3] On a motion to dismiss pursuant to CPLR 3211(a), the complaint is afforded a liberal construction and the plaintiff is given the benefit of every possible favorable inference (see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 105, 73 N.Y.S.3d 519, 96 N.E.3d 784; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Under CPLR 3211(a)(1), a dismissal is warranted only if "the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Thus, the defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff’s factual allegations (see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d at 106, 73 N.Y.S.3d 519, 96 N.E.3d 784).
[4, 5] "Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485; see Moore Charitable Found. v. PJT Partners, Inc., 40 N.Y.3d 150, 157, 195 N.Y.S.3d 436, 217 N.E.3d 8; Darby v. Compagnie Natl. Air France, 96 N.Y.2d 343, 347, 728 N.Y.S.2d 731, 753 N.E.2d 160). As a general matter, "such a duty may arise only ‘where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others’ " (Matter of New York City Asbestos Litig., 5 N.Y.3d 486, 493–494, 806 N.Y.S.2d 146, 840 N.E.2d 115, quoting Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233, 727 N.Y.S.2d 7, 750 N.E.2d 1055).
[6] Here, the Supreme Court properly determined that the defendant’s submissions in support of its motion conclusively established that it owed no duty to the plaintiff, as it had no control over the coaching, supervision, or organization of the team or league (see Fazzinga v. Westchester Track Club, 48 A.D.3d 410, 411, 851 N.Y.S.2d 278; Mercer v. City of New York, 255 A.D.2d 368, 369, 679 N.Y.S.2d 694; Megna v. Newsday, Inc., 245 A.D.2d 494, 666 N.Y.S.2d 718; see also Forbes v. Aaron, 81 A.D.3d 876, 918 N.Y.S.2d 118).
[7, 8] CPLR 3211(d) provides that, where it appears "that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion … or may order a continuance to permit … disclosure to be had and may make such other order as may be just." "[T]he mere hope that discovery may reveal facts essential to justify opposition does not warrant denial of the motion" (Karpovich v. City of New York, 162 A.D.3d 996, 998, 80 N.Y.S.3d 364 [internal quotation marks omitted]; see Vasquez v. Kennedy, 221 A.D.3d 936, 939, 201 N.Y.S.3d 110). Here, the plaintiff did not make a sufficient showing that facts essential to justify opposition to the defendant’s motion could be yielded during discovery (see Vasquez v. Kennedy, 221 A.D.3d at 939, 201 N.Y.S.3d 110; Karpovich v. City of New York, 162 A.D.3d at 998, 80 N.Y.S.3d 364).
The plaintiff’s remaining contention is without merit.
Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it.
BRATHWAITE NELSON, J.P., MILLER, FORD and VOUTSINAS, JJ., concur.