Opinion
Index No. 803240/2020
02-17-2021
LG 51 DOE, Plaintiffs, v. CAZENOVIA PARK HOCKEY ASSOCIATION INC., Individually and as SUCCESSOR IN INTEREST TO CAZENOVIA PARK HOCKEY ASSOCIATION, WESTERN NEW YORK AMATEUR HOCKEY LEAGUE, INC., NEW YORK STATE AMATEUR HOCKEY ASSOCIATION, INC., USA HOCKEY, INC. Defendants.
Unpublished Opinion
DECISION
HON. DEBORAH A. CHIME, J.S.C.
Defendants, Western New York Amateur Hockey League, Inc., New York State Amateur Hockey Association, Inc. and USA Hockey, Inc., (hereinafter collectively, USA Hockey), moved to dismiss the Complaint pursuant to CPLR 3211(a)(7) (NYSCEF motion 001). Plaintiff opposed the motion to dismiss and cross-moved for leave to Amend the Complaint (NYSCEF motion 004). Defendants, USA Hockey and Cazenovia Park Hockey Association, Inc., opposed the motion for leave to Amend.
USA Hockey also moved to consolidate this action with the action filed under index number 803236/2020 and to amend the caption (NYSCEF motion 003). Defendant, Cazenovia Park Hockey Association, joined the motion and there was no opposition to the motion.
This claim was brought pursuant to the Child Victims Act (CPLR 214-g). In the Complaint, plaintiff alleges that he/she was a member of the Cazenovia Park Hockey Association and that he/she was sexually abused by coach, Gary Hayes, from 1983 to 1985.
USA Hockey moved to dismiss the Complaint pursuant to CPLR 3211(a)(7). "On a motion to dismiss for failure to state a cause of action under CPLR 32 i 1(a)(7), we accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. At the same time, however, allegations consisting of bare legal conclusions... are not entitled to any such consideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the tactual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137,141-142 [2017] [internal citations omitted]).
"Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by die plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Christ the Rock World Restoration Church ML, Inc. v Evangelical Christian Credit Union, 153 A.D.3d 1226,1229 [2d Dept 2017] [citing Guggenheimer v Ginzburg, 43 N.Y.2d 268,274-275 [1977]]). "[A]ffidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action" (Rovello v Orofino Realty Co., 40 N.Y.2d 633, 636 [1976]).
As to die claims for vicarious liability, here there is no employer-employee relationship, as die alleged perpetrator of die abuse was a volunteer coach. Nonetheless, "[u]nder die doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency.. .[A] principal-agent relationship can include a volunteer when the requisite conditions, including control and acting on another's behalf, are shown" (Rozmus v Wesleyan Church of Hamburg, 161 A.D.3d 1538,1539 [4th Dept 2018] internal citations omitted). Assuming, for purposes of this motion, that a principal-agent relationship existed between USA Hockey and Hayes, the same general standards that apply to an employer-employee relationship under a theory of respondeat superior would likewise apply.
"Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (Doe v Rohan, 17 A.D.3d 509, 512 [2d Dept 2005], Iv denied 6 N.Y.3d 701 [2005]). Sexual abuse is a clear departure from scope of employment, "committed solely for personal reasons, and unrelated to the furtherance of bis employer's business" (id,; see also, Torrey v Portvllle Cent Sch., 2020 NY Slip Op 50244(11) [Sim Ct Cattaraugus County 2020]; Mazzaretta v Syracuse Diocese, 100 A.D.3d 1384,1385 [4th Dept 2012]; aad Mary KK v Jack LL, 203 A.D.2d 840, S41 [3d Dept 1994]). Therefore, as a matter of law, the doctrine of respondeat superior is not applicable to the present matter. The motion to dismiss of USA Hockey is granted and all causes of action based on a theory of vicarious liability for the alleged abuse of plaintiff by Hayes are dismissed. Those include the First, Fifth and Sixth causes of action in the Complaint
The remainder of plaintiffs claims; the second, third and fourth causes of action, are based on negligence. The Court finds that the Complaint states a claim for negligence against USA Hockey. Moreover, the Affidavits submitted by USA Hockey do not conclusively establish that no significant dispute exists regarding the allegations of negligence. Without more and at this stage of the litigation, the allegations must be accepted as true and plaintiff should be allowed an opportunity to engage in discovery. Whether there is factual support for plaintiffs allegations and the existence of a duty running from the moving defendants to plaintiff may be addressed after further discovery in a motion for summary judgment. The motion to dismiss the negligence causes of action is denied.
Plaintiff cross-moved to amend the Complaint to add additional allegations and causes of action all of which are based on negligence, CPLR 3025(a) states that "[a] party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or with in twenty days after service of a pleading responding to it." Under the circumstances here, CPLR 3025(a) must be read in conjunction with CPLR 3211(f), which states that "[s]ervice of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve die pleading until ten days after service of notice of entry of the order."
Here, the initial Complaint was filed on March 3, 2020. USA Hockey did not Answer the Complaint, but instead filed a motion to dismiss on September 16,2020. Plaintiffs time to Amend die Answer pursuant to CPLR 3025(a) is extended, per CPLR 3211(f), to ten days after service of notice of entry on the motion to dismiss. Plaintiffs motion is therefor denied as unnecessary.
Pursuant to CPLR 602(a), USA Hockey moved to consolidate this action with another captioned LG 51 Doe v Gerald P. Hayes, index no 80323672020, and to amend the caption to include Gerald Hayes. The motion is granted pursuant to CPLR 602(a) as the two matters involve common questions of law and/or met Moreover, the motion was unopposed.
Counsel for USA Hockey is to prepare and submit Orders on NYSCEF motions 001 and 003. Plaintiff is to prepare and submit an Order on NYSCEF motion 004. All Orders shall attach the Court's Decision and are to be filed within 30 days.