Opinion
Index No. 513001/20
06-20-2023
ARK317 DOE, Plaintiff, v. DIOCESE OF BROOKLYN a/k/a THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; ARCHDIOCESE OF NEW YORK; ST. VINCENT'S HOSPITAL AND MEDICAL CENTER OF NEW YORK a/k/a SAINT VINCENT CATHOLIC MEDICAL CENTERS OF NEW YORK; ST. SEBASTIAN'S a/k/a ST. SEBASTIAN; and DOES 1-5 whose identities are unknown to plaintiff, Defendants.
Unpublished Opinion
PRESENT: HON. ROBIN S. GARSON, Justice.
ROBIN S. GARSON, JUDGE.
The following e-filed papers read herein:
NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
15-16 18-19
Opposing Affidavits/ Answer (Affirmations)
31
Affidavits/ Affirmations in Reply
47
Other Papers:
Upon the foregoing papers, defendant Archdiocese of New York (Archdiocese) moves for an order: (1) pursuant to CPLR 3211 (a) (1), dismissing plaintiffs complaint based on documentary evidence; (2) pursuant to CPLR 3211 (a) (7), dismissing the complaint for failure to state a cause of action; or alternatively (3) pursuant to CPLR 3212, granting the Archdiocese summary judgment dismissing the complaint (motion sequence number 2).
The Archdiocese's motion (motion sequence number 1) is denied.
In this revival action based on the Child Victims Act (CVA) (CPLR 214-g; L 2019, ch 11, § 3, as amended by L 2020, ch 130, § 1), plaintiff alleges that, from approximately 1970 to 1972, when he was approximately 13 to 15 years old, he was sexually abused by Father James I.L. Frost, a Roman Catholic priest who was under the employ, supervision and control of the Archdiocese and defendants Diocese of Brooklyn, St. Vincent's Hospital and Medical Center of New York (St. Vincent), and St. Sebastian's (Complaint, at ¶¶ 20, 24). As is relevant to the Archdiocese, plaintiff alleges that, while hospitalized at St. Vincent, he came into contact with Father Frost when he (plaintiff) was participating in youth activities and/or church activities that occurred at St. Vincent, that St. Vincent was under the direct authority, control and province of the Archdiocese, that the Archdiocese had jurisdiction over youth activities and programs within the Archdiocese, and that Archdiocese had the power to appoint, supervise, and remove/terminate each and every person working with children within the Archdiocese, including Father Frost (Complaint, at ¶¶ 11-13, 22-24). Based on these allegations of control, and allegations that plaintiff was a youth in the custody of the Archdiocese when he participated in the youth programs, plaintiff asserts that the Archdiocese had a special relationship with plaintiff and Father Frost and a concomitant duty to control the latter's conduct and protect plaintiff (Complaint, at ¶¶ 28-36). In moving, the Archdiocese contends that it is entitled to dismissal or summary judgment on the ground that it owed no duty to plaintiff because the Archdiocese did not own, control or supervise St. Vincent or its employees or agents.
Although some language in the complaint is ambiguous as to whether plaintiff is seeking to hold the Archdiocese liable for Father Frost's conduct at St. Sebastian's, when the complaint is read in its entirety, it is clear that plaintiff is only seeking to hold the Archdiocese liable for Father Frost's abuse that allegedly occurred while plaintiff was at St. Vincent. Further, plaintiff, in his opposition papers, expressly states that he, "does not allege that the Archdiocese had any control or supervision over the Diocese of Brooklyn or St. Sebastian's" (Plaintiffs Memorandum of Law, at 2). As such, this court need not address the Archdiocese's assertions that it may not be held liable for Father Frost's conduct associated with St. Sebastian's or that occurred within the Diocese of Brooklyn.
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 [2002]; see Leon v. Martinez, 84 N.Y.2d 83, 88 [1994]). "To constitute documentary evidence, the evidence must be 'unambiguous, authentic, and undeniable'" (Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807 [2d Dept 2017], quoting Granada Condominium III Assn, v. Palomino, 78 A.D.3d 996, 997 [2d Dept 2010]), "such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable" (Phillips, 152 A.D.3d at 807). "Conversely, letters, emails, and ... affidavits, do not meet the requirements for documentary evidence" (id.).
On a motion to dismiss a complaint for failure to state a cause of action under CPLR 3211 (a) (7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon, 84 N.Y.2d at 87-88; see Boyle v. North Salem Cent. Sch. Dist., 208 A.D.3d 744, 745 [2d Dept 2022]; Doe v. Enlarged City Sch. Dist. of Middletown, 195 A.D.3d 595, 596 [2d Dept 2021]). "Whether a plaintiff can ultimately establish [his or her] 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]). "Upon the submission of evidentiary material in support of such a motion, 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 the 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" (Klostermeier v. City of Port Jervis, 200 A.D.3d 866, 867-868 [2d Dept 2021] [internal quotation marks omitted]; see Yan Ping Xu v. Van Zwienen, 212 A.D.3d 872, 874 [2d Dept 2023]; Phillips, 152 A.D.3d at 807-808).
In support of its contention that it is entitled to dismissal of the complaint based on documentary evidence under CPLR 3211 (a) (1), the Archdiocese has submitted an affidavit from Roderick J. Cassidy, an associate general counsel of the Archdiocese, who has held his position since 2002, and who asserts, based on his review of the Archdiocese's records and files and "personal knowledge" that, although St. Vincent was located within the geographical boundaries of the Archdiocese, the Archdiocese did not operate or control St. Vincent or employ, supervise, or train its staff. Cassidy's affidavit, which is primarily based on a review of documents that are not provided with the Archdiocese's motion papers, does not constitute documentary evidence for purposes of a CPLR 3211 (a) (1) motion (see J.D. v. Archdiocese of N.Y., 214 A.D.3d 561, 561 [1st Dept 2023]; Davis v. Henry, 212 A.D.3d597, 598 [2d Dept 2023]; Phillips, 152 A.D.3d at 807). This court cannot consider the copy of a deed showing that the Archdiocese did not own the property on which St. Vincent was located because it was submitted for the first time in reply (see Davis, 212 A.D.3d at 598; see also Kogutv Village of Chestnut Ridge, 214 A.D.3d 777, 780 [2d Dept 2023]). Even if this court were to consider the deed, the deed, while it would constitute documentary evidence, fails to "utterly refute" the complaint's allegations that Father Frost was an employee or agent of the Archdiocese or that the Archdiocese supervised or controlled his appointment and employ (see J.A.F. v. Roman Catholic Archdiocese of N.Y.,__A.D.3d__, 2023 NY Slip Op 02455, *1 [1st Dept 2023]; JD. v. Archdiocese of N.Y., 214 A.D.3d at 561; cf D.M. v. Domestic &Foreign Missionary Socy. of the Protestant Episcopal Church, 2023 NY Slip Op 31863[U], *8-10 [Sup Ct, Kings County 2023] [documentary proof in the form of national church constitution and canons demonstrated that the national church did not employ, supervise, or control a priest working at a local parish]). This court notes that the Archdiocese's proffered evidence in support of its motion is similar to the proof that the Appellate Division, First Department found insufficient to warrant dismissal of similar claims against the Archdiocese under CPLR 3211 (a) (1) in both JD. v. Archdiocese of N.Y. (214 A.D.3d at 561) and J.A.F. v. Roman Catholic Archdiocese of N.Y. (2023 NY Slip Op 02455, *1).
Although the Archdiocese has appended other documents and an affidavit in support of its motion, these papers only address its relationship with St. Sebastian's and the Diocese of Brooklyn, and do not address the Archdiocese's connections with St. Vincent.
In light of the liberal reading of a complaint under CPLR 3211 (a) (7) and given that negligent employment/supervision/retention causes of action are not statutorily required to be pleaded with specificity (see Davila v. Orange County, 215 A.D.3d 632, 635 [2d Dept 2023]; Boyle, 208 A.D.3d at 745; Doe v. Enlarged City Sch. Dist. of Middletown, 195 A.D.3d at 596), this court concludes that, at this pre-answer and pre-discovery juncture, plaintiff has sufficiently alleged that the Archdiocese had a relationship with St. Vincent and Father Frost to warrant finding that the Archdiocese owed a duty to protect plaintiff (see Martinez, 215 A.D.3d at 819-820; Davila, 215 A.D.3d at 635; Belcastro v. Roman Catholic Diocese of Brooklyn, A K, 213 A.D.3d 800, 802 [2d Dept 2023]; Novak v. Sisters of the Heart of Mary, 210 A.D.3d 1104, 1105 [2d Dept 2022]; Boyle, 208 A.D.3d at 745; cf Doe v. Hauppauge Union Free Sch. Dist., 213 A.D.3d 809, 811 [2d Dept 2023]). In addition, the court finds that Cassidy's affidavit, submitted by the Archdiocese, fails to conclusively establish that plaintiff has no cause of action (see Cajigas v. Clean Rite Ctrs., 187 A.D.3d 700, 701 [2d Dept 2020]; Yu Chen v. Kupoint (USA) Corp., 160 A.D.3d 787, 788-789 [2d Dept 2018]; Phillips, 152 A.D.3d at 807-808; Jones v. Sisters of St. Dominic of Blauvelt, 2023 WL 3431602[U], *2 [Sup Ct, New York County 2023]; see also Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351 [2013]). Notably, in this respect, without the underlying documents/records upon which Cassidy relied upon in making his averments regarding the Archdiocese's relationship, or lack thereof, with Father Frost and St. Vincent, his affidavit constitutes inadmissible hearsay and lacks probative value (see Federal Natl. Mtge. Assn, v. Hernandez, 215 A.D.3d 734, 736 [2d Dept 2023]; U.S. Bank N.A. v. Kahn Prop. Owner, LLC, 206 A.D.3d 850, 851 [2d Dept 2022]).
The Archdiocese, in its initial motion papers, only argued that it was entitled to dismissal based on its assertions regarding the absence of a duty owed to plaintiff. As such this court declines to address the Archdiocese's additional arguments regarding the sufficiency of the complaint that are raised for the first time in its reply papers (see Ayers v. Bloomberg, L.P., 203 A.D.3d 872, 875 [2d Dept 2022]; Grocery Leasing Corp, v. P&C Merrick Realty Co., LLC, 197 A.D.3d 625, 627 [2d Dept 2021]).
With respect to the Archdiocese's alternative request that this court consider its preanswer motion a CPLR 3212 motion for summary judgment, the court will consider this portion of the motion a request under CPLR 3211 (c) (see Matter of Gorelick v. Suffolk County Comptroller's Off, 186 A.D.3d 1518, 1519 [2d Dept 2020]; Ferrera v. City of New York, 164 A.D.3d 754, 756 [2d Dept 2018]). Under the instant circumstances, where the proceeding is still at its earliest stages and plaintiff has not had an opportunity to conduct discovery, this court declines to convert the motion to one for summary judgment (see Kelsey v. Lenore R., 211 A.D.3d 1361, 1362 [3d Dept 2022], appeal dismissed 39 N.Y.3d 1091 [2023]; Henn v. City of New York, 164 A.D.3d 766, 767 [2d Dept 2018]; SPI Communications v. WTZA-TV Assoc. Ltd. Partnership, 229 A.D.2d 644, 645 [3d Dept 1996]). Even if this court were inclined to deem the motion one for summary judgment, given this court's conclusion that Cassidy's affidavit lacks probative value, this court would find that the Archdiocese has failed to demonstrate its prima facie entitlement to summary judgment, and would deny the motion regardless of the sufficiency of plaintiffs opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). For the foregoing reasons, it is hereby:
ORDERED that Archdioceses of New York's motion is denied; further it is
ORDERED that Archdiocese of New York shall file and serve an answer within 30 days of the date of this order; further it is
ORDERED that Archdiocese of New York shall serve a copy of this order along with notice of entry on all parties forthwith.
The parties shall submit a First Compliance Conference Stipulation and Order within 60 days of the date of this Order.
This constitutes the decision and order of the court.