Opinion
Index No. 519805/2021 MS No. 2 NYSCEF Doc. No. 45
11-15-2023
ARK570 DOE, Plaintiff, v. DIOCESE OF BROOKLYN a/k/a THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; CAPUCHIN FRANCISCAN FRIARS a/k/a CAPUCHIN FRANCISCAN FRIARS PROVINCE OF THE SACRED STIGMATA OF ST. FRANCIS; ST. JUDE a/k/a ST. JUDE SHRINE CHURCH; OUR LADY OF TRUST CATHOLIC ACADEMY; AND DOES 1 - 5, Defendants.
Unpublished Opinion
Mark I. Partnow, J. S. C.
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed____ 19-20, Opposing Affidavits (Affirmations)____ 28-30, Affidavits/ Affirmations in Reply____ 31
Other Papers: ____
Upon the foregoing papers. Defendants, Capuchin Friars a/k/a Capuchin Franciscan Friars Province of the Sacred Stigmata of St. Francis (the Capuchins) move (motion sequence #2) for an order, pursuant to CPLR 3211 (a) (7), dismissing the complaint of plaintiff ARK570 Doe (the Plaintiff) as against the Capuchins.
Plaintiff commenced this action pursuant to the Child Victim's Act (CVA) alleging that he was sexually abused on multiple occasions between 1975 and 1978. when Plaintiff was approximately 10 to 13 years old, as a student at Our Lady of Trust Catholic Academy (Our Lady) and as a parishioner at Saint Jude's Church (St. Jude's). Specifically, Plaintiff alleges that he was sexually abused as a child by Father Felix Miritello (Fr. Miritello) who the Plaintiff alleges was employed by the Capuchins and the Diocese and was under their supervision, employ and control at St. Jude while the Plaintiff was a student there.
In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the pleading states a cause of action, and if from its four comers 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]). The court must accept the facts alleged in the complaint to be true and "determine only whether the facts as alleged fit within any cognizable legal theory (Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 A.D.2d 193, 193-194 [2d Dept 2000]). The court "is not concerned with determinations of fact or the likelihood of success on the merits" (Detmer v Acampora, 207 A.D.2d 477, 477 [2d Dept 1994] see Stukuls v State of New York, 42 N.Y.2d 272. 275 [1977]). "Whether 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 N.Y.3d 11, 19 [2005]). Although a complaint may be inartfully drawn, illogical or even informal, it will be "'deemed to allege whatever cause of action can be implied from its statement by fair and reasonable intendment'" (Shields v School of Law, Hofstra Univ., 77 A.D.2d 867, 868 [2d Dept 1980]; quoting Lupinski v Village of Ilion, 59 A.D.2d 1050, 1050 [4th Dept 1977]).
Negligence
The portion of the Capuchin's motion to dismiss the first cause of action for negligence is denied. The Capuchin's argue that they had no duty to protect the Plaintiff from Fr. Miritello. In opposition. Plaintiff argues that the Capuchins had a duty of care the Plaintiff from foreseeable harm based on their special relationship and that this has been sufficiently alleged in the complaint. In support, Plaintiff contends that the Capuchins owed a duty to Plaintiff by taking physical custody of Plaintiff as a Catholic student and had a duty to properly supervise Plaintiff and other children participating in programs under its care. Specifically, Plaintiff argues that the Capuchins failed to protect the Plaintiff from the foreseeable abusive conduct of Fr. Miritello, and that the Capuchins knew or should have known of this danger.
Affording Plaintiff the benefit of every positive inference, as is required on a motion to dismiss, it may be inferred that the Capuchins exercised some control over Fr. Miritello as to his assignment and the ability to remove him from such assignment. The Plaintiff is not alleging that the Capuchins are vicariously liable under respondeat superior for Fr. Miritello, but rather it is that the Capuchins owed a duty of care to the Plaintiff because of the special relationship he had as a person entrusted to care for the Plaintiff. "To establish a cause of action sounding in negligence, a plaintiff must establish the existence of a duty on defendant's part to plaintiff, breach of the duty and damages" (Davila v. Orange County, 215 A.D.3d 632 [2d Dept 2023]). The court therefore finds that the complaint sufficiently pleads a cause of action sounding in negligence against the Capuchins (see Conti v Watchtower Bible & Tract Society of N.Y., Inc., 235 Cal App4th 1214, 1233-1235, 186 Cal.Rptr3d 26, 43-44 [2015]; J.B., 2023 NY Slip Op 31338[U].
Contrary to the contentions of the Capuchins, the complaint sufficiently alleged that the Capuchins owed a duty of care to the plaintiff (see Digiorgio v. The Roman Catholic Diocese of Brooklyn, No. 520009/2019, 2021 WL 1578326 (N.Y. Sup. Ct. Apr. 22, 2021)). A such, the portion of the Capuchins motion to dismiss Plaintiffs cause of action for negligence pursuant to CPLR 3211(a)(7) is denied.
Negligent Training and Supervision
The portion of the Capuchins motion to dismiss the second cause of action is denied. The Capuchins argue that this claim should be dismissed as the Plaintiff failed to state a cause of action for negligent training and supervision. In support the Capuchins argue that there was never a nexus between the Capuchins and Fr. Miritello. In opposition, Plaintiff argues that the complaint sufficiently alleges an employment relationship between the Capuchins and also sufficiently alleges a claim for negligent training and supervision.
In evaluating such allegations, courts have emphasized that "[c]auses of action alleging negligent hiring, negligent retention, or negligent supervision are not statutorily required to be pleaded with specificity" (Davila. 215 A.D.3d at 635, quoting Doe v Enlarged City Sch. Dist. of Middletown, 195 A.D.3d at 596; see Boyle, 208 A.D.3d at 755). "The manner in which the defendant acquired actual or constructive notice of [the employee's propensity to commit the alleged] abuse is an evidentiary fact, to be proved by the [plaintiff] at trial" (Martinez v State of New York, 215 A.D.3d 815, 819 [2d Dept 2023]) but, in a pleading," 'the plaintiff need not allege his [or her] evidence'" (id., quoting Mellen v Athens Hotel Co., 153 A.D. 891, 891 [1st Dept 1912]; see also Sokol v Leader, 74 A.D.3d 1180, 1182 [2d Dept 2010]; cf. Doe v Hauppauge Union Free Sch. Dist., 213 A.D.3d 809. 811 [2d Dept 2023]).
Here, the Court finds that the complaint sufficiently alleges an employment relationship between the Capuchins and Fr. Miritello. Thus, the Court finds that the portion of the Capuchin's motion to dismiss Plaintiffs cause of action for negligent training and supervision pursuant to CPLR 3211(a)(7) is denied.
Negligent Retention
The portion of the Capuchins motion to dismiss the third cause of action is denied. A claimant can maintain a cause of action for negligent retention by adequately alleging that the "employer knew or should have known of the employee's propensity for the conduct which caused the injury'' and nevertheless continued the employee's service (Bumpus v. New York City Tr. Auth., 47 A.D.3d 653, 654 [2d Dept. 2008] [internal quotation marks and citation omitted]; see also Jackson v. New York Univ. Downtown Hosp., 69 A.D.3d 801, 801-02 [2d Dept. 2010]; Here, the Plaintiff alleges sufficient facts to permit an inference that Capuchins should have known that Fr. Miritello would present a danger pursuant to the CVA at the time of his assignment and thereafter sufficient to satisfy the standard set forth by CPLR 3211(a)(7). What is more, and as stated above, "[c]auses of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity" (Belcastro v. Roman Cath. Diocese of Brooklyn, New York, 213 A.D.3d 800, 801, 184 N.Y.S.3d 367, 369 [2d Dept 2023]).
Accordingly, it is
ORDERED, that the motion of Defendant Capuchins to dismiss the action (motion sequence #2) is denied in its entirely.
The foregoing constitutes the decision and order of the court.