Opinion
Index No. 950077/2021 Motion Seq. No. 003
04-14-2023
Y. C., Plaintiff, v. CITY OF NEW YORK, CATHOLIC CHARITIES OF STATEN ISLAND, INC. F/K/A MISSION OF THE IMMACULATE VIRGIN, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF NEW YORK, ARCHDIOCESE OF NEW YORK, DOES 4-10, Defendant.
Unpublished Opinion
MOTION DATE 3/16/2023
PRESENT: HON. LAURENCE L. LOVE, Justice
DECISION+ ORDER ON MOTION
LAURENCE L. LOVE, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 44, 45, 46, 49, 50, 51,52, 53, 54, 55, 56 were read on this motion to/for DISMISS.
Upon the foregoing documents, defendant, Catholic Charities of Staten Island, Inc.'s f/k/a Mission of the Immaculate Virgin ("CCSI") motion seeking an Order dismissing this action pursuant to CPLR §3211(a)(5) is decided as follows:
Plaintiff commenced the instant action on March 19, 2021, listing The City of New York and the New York Foundling Hospital as defendant and listing Defendants DOES 1-10 as persons or entities with responsibilities for Plaintiffs safety, supervision and/or placement in foster care, who have not to date been identified. "In an Order dated June 16, 2022, this Court granted plaintiffs motion seeking leave to amend the complaint in this action, adding CCSI as a party defendant.
CCSI was served with the Summons and Amended Complaint on June 27, 2022, a date indisputably after the expiration of the two-year window to file Child Victims Act cases and CCSI now moves to dismiss, arguing that plaintiff has failed to satisfy the jurisdictional requirements of CPLR §1024 and §3025(b).
As discussed in Holmes v. City of New York, 132 A.D.3d 952 (2d Dept 2015),
In order to employ the procedural "Jane Doe" or "John Doe" mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired (see Cornice v Justin's Rest., 78 A.D.3d 641, 642 [2010]; Bumpus v New York City Tr. Auth., 66 A.D.3d 26, 29-30 [2009]; Hall v Rao, 26 A.D.3d 694, 695 [2006]). "[W]hen an originally-named defendant and an unknown 'Jane Doe' [or 'John Doe'] party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired pursuant to the 'relation-back' doctrine of CPLR 203 (f), based upon postlimitations disclosure of the unknown party's identity" (Bumpus v New York City Tr. Auth., 66 A.D.3d at 34-35). The moving party seeking to apply the relation-back doctrine to a later-identified "Jane Doe" or "John Doe" defendant has the burden, inter alia, of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations (see id. at 35; Hall v. Rao, 26 A.D.3d at 695).
Movant contends that plaintiff has failed to show that same made timely efforts to identify the correct party and further argues that it could never be apprised that it would be a defendant in this action from a reading of the original complaint. Movant also argues that plaintiff has failed to establish that movant is united in interest with a party to this action.
In plaintiff s original complaint, the sole description applicable to the Does is that they were persons or entities with responsibilities for Plaintiffs safety, supervision and/or placement in foster care. The Court notes that as plaintiff has elected to proceed under a pseudonym, and as such, it would be impossible for movant, looking at the original complaint, to conclude that plaintiff was ever under its care as plaintiff is identified only by initials. In support of its argument that plaintiff engaged in diligent efforts to identify the proper defendant prior to the expiration of the statute of limitations, plaintiffs counsel allegedly conducted extensive pre-suit investigation which identified The New York Foundling as a defendant in the Summons and Complaint. However, plaintiff did not even seek plaintiffs foster care records until on or about July 20, 2021, and did not discover until September 9, 2021 that The New York Foundling was not the proper defendant. Thereafter, plaintiff did not move to amend its complaint until May 25, 2022. As such, plaintiff has not established either requirement.
Plaintiff further argues that they are entitled to use the relation back doctrine as CCSI is united in in interest with the City of New York as they are in an agency relationship, See, Scheff v. St. John's Episcopal Hospital, 115 A.D.2d 532, 534 (2d Dep't 1985). Unity of interest exists in instances where, by virtue of their relationship, the defendants in a matter have the same defenses to the claims of the plaintiff such that "they will stand or fall together and are therefore united in interest." Connell v. Hayden, 83 A.D.2d 30, 42 (2d Dep't 1981) "In a negligence action, 'the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other.'" Mileski v. MSC Indus. Direct Co., 138 A.D.3d 797, 800 (2d Dep't 2016).
However, said parties are not united in interest. The City of New York's first affirmative defense is that same is immune from suit for their exercise of discretion in the performance of a governmental function and/or their exercise of professional judgment. This Court has previously ruled in O.G. v. City of New York, Supreme Ct. N.Y. Cty, Index No. 950104/2020, January 29, 2022, that the City of New York is entitled to dismissal of that action as the City was engaged in a government function, that of oversight of foster care agencies, and as such, plaintiff must plead a special duty. As discussed in Applewhite, 21 N.Y.3d at 426, "[A] special duty can arise in three situations: (1) the [claimant] belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the [government entity] took positive control of a known and dangerous safety condition" Here, there is no allegation that the second or third methods are applicable and as such, the sole applicable method to establish a "special duty" is the breach of a statutory duty, which itself requires that "the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme (see Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633 [1989]). If one of these prerequisites is lacking, the claim will fail." McLean v. City of New York, 12 N.Y.3d 194, 200, (2009), citing, Pelaez v. Seide 2 N.Y.3d 186 (2004). McLean continues:
We addressed a similar issue in Mark G. v. Sabol, 93 N.Y.2d 710, 695 N.Y.S.2d 730, 717 N.E.2d 1067 (1999). The plaintiffs there,' children alleging that they had suffered abuse or neglect in the foster homes where they had been placed by New York City child welfare officials, sought recovery from the City, relying on provisions of the Social Services Law designed to protect foster children and to prevent child abuse generally. Emphasizing the detailed, comprehensive nature of the statutes the plaintiffs relied on, we rejected their claim that those statutes implied a private right of action. "[I]t would be inappropriate," we said, "for us to find another enforcement mechanism beyond the statute's already 'comprehensive' scheme.... Considering that the statute gives no hint of any private enforcement remedy for money damages, we will not impute one to the lawmakers" (93 N.Y.2d at 720-721, 695 N.Y.S.2d 730, 717 N.E.2d 1067).J. J. also raises this argument holding that:
Decisions involving the supervision of children in foster care decided after McLean follow that decision in determining the parameters of governmental liability in this area (see e.g. Rivera v City of New York, 82 A.D.3d 647, 648 [1st Dept 2011]; Albino v New York City Hous. Auth., 78 A.D.3d 485, 487-492 [1st Dept 2010]; Kochanski v City of New York, 76 A.D.3d 1050, 1051-1052
[2d Dept 2010]; see also Avila v State of New York, 39 Mise 3d 1064 [Ct Cl 2013] [recognizing Sean M. to be implicitly overruled by the Court of Appeals decision in McLean]). Thus, contrary to claimant's contention, he must establish a special duty. Although claimant appears to advance a statutory duty, he fails to demonstrate a private right of action. Notably, the statutory scheme for foster care placement and supervision upon which claimant relies is no different than article 19-G of the Executive Law relating to juvenile detention centers in that both do not create nor imply a private right of action (see Social Services Law art 6; Mark G. v Sabol, 93 N.Y.2d 710, 718-722 [1999]; Albino, 78 A.D.3d at 488-489).Accordingly, it is hereby
ORDERED that defendant, Catholic Charities of Staten Island, Inc.'s f/k/a Mission of the Immaculate Virgin is GRANTED in its entirety and this action is dismissed as against said defendant.