Opinion
Index No. 950215/2021 Motion Seq. No. 002
07-28-2023
M. C. Plaintiff, v. CITY OF NEW YORK, THE NEW YORK FOUNDLING F/K/A THE NEW YORK FOUNDLING HOSPITAL, ARCHDIOCESE OF NEW YORK, CATHOLIC CHARITIES OF THE ARCHDIOCESE OF NEW YORK, SISTERS OF CHARITY OF SAINT VINCENT DEPAUL OF NEW YORK A/K/A SISTERS OF CHARITY NEW YORK, DOES 1-10 Defendants.
Unpublished Opinion
MOTION DATE 11/05/2021
PRESENT: HON. ALEXANDER M. TISCH JUSTICE
DECISION + ORDER ON MOTION
Alexander M. Tisch, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 002) 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 40 were read on this motion to/for DISMISSAL
Upon the foregoing papers, defendants Archdiocese of New York (Archdiocese) and Catholic Charities of the Archdiocese of New York (Catholic Charities) (collectively, defendants or movants) move to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) or, alternatively, pursuant to CPLR 3212.
The complaint alleges as follows: In approximately 1968, plaintiff was placed in foster care by co-defendant the City of New York (City) by and through the New York City Administration for Children's Services (ACS). Upon information and belief, defendant City by and through ACS entered into an agreement with co-defendant the New York Foundling (Foundling) and Catholic Charities for the placement of plaintiff into foster care and/or for Foundling and/or Catholic Charities to perform foster care services to New- York City's children. Approximately in 1968 when plaintiff was about four (4) years old, David Valentin allegedly sexually assaulted and abused plaintiff from about 1968 to 1977. Plaintiff also alleges that she was sexually assaulted and abused by Nelson Valentin when she was approximately seven (7) years old in or about 1971. The complaint alleges that the abuse took place in the foster residence of the Valentin family home, and that defendants placed plaintiff in the Valentine residence which provided David and Nelson Valentine the opportunity to commit such acts.
In determining dismissal under CPLR Rule 3211 (a) (7), the "complaint is to be afforded a liberal construction" (Goldfarb v Schwartz, 26 A.D.3d 462, 463 [2d Dept 2006]). The "allegations are presumed to be true and accorded every favorable inference" (Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]). "[T]he sole criterion is whether the pleading states a cause of action, and if from its four corners 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]). Additionally, "[w]hether 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]).
A motion to dismiss a complaint based upon documentary evidence pursuant to CPLR 3211 (a) (1) "may be appropriately granted where the documentary evidence utterly refutes the plaintiffs factual allegation, 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]; Leon v Martinez, 84 N.Y.2d 83, 88 [1994]). Not every piece of evidence in the form of a document is properly deemed "documentary evidence." The appellate courts have noted this distinction, finding that legislative history and supporting cases make it clear that "judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are 'essentially undeniable, would qualify as 'documentary evidence' in the proper case" (Fontanetta v Doe, 73 A.D.3d 78, 86 [2d Dept 2010]; Amsterdam Hosp. Grp., LLC v Marshall-Alan Assocs., Inc., 120 A.D. 3d 431,432 [1st Dept 2014]).
In support of their motion defendants submit the certificate of incorporation for both Foundling and Catholic Charities; the Foundling amendments; an affidavit from Foundling's Special Counsel, Itohan Omoregie, an affidavit from the Archdiocese's Associate General Counsel, Roderick Cassidy, and an affidavit from the Associate Executive Director of Catholic Charities, Talia Lockspeiser. Defendants argue that the evidence shows that they did not create, oversee, supervise, manage, control, direct, or operate the Foundling and its placements, nor Foundling's staff, employees, foster parents, or children; and the movants did not have any relationship with the alleged abusers.
The fact that the co-defendants are separately formed entities does not negate the possibility that, as alleged in the complaint, the Archdiocese had any control over the Foundling or Catholic Charities, and/or its employees or agents (see generally Engelman v Rofe, 194 A.D.3d 26, 33-34 [1st Dept 2021] [the court is required to accept these allegations in the complaint as true]).
The affidavits submitted do not constitute "documentary evidence" within the meaning of CPLR 3211 (a) (1) (see J.D. v Archdiocese of New York, - A.D.3d -, 2023 NY Slip Op 01588 [1st Dept Mar. 23, 2023]; Correa v Orient-Express Hotels, Inc., 84 A.D.3d 651 [1st Dept 2011] citing, inter alia, Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271 [1st Dept 2004]; Fontanetta v Doe, 73 A.D.3d 78, 86 [2d Dept 2010] ["it is clear that affidavits and deposition testimony are not 'documentary evidence' within the intendment of a CPLR 3211(a)(1) motion to dismiss"]).
Further, although "a trial court may use affidavits in its consideration of a pleading motion to dismiss," where, as here, the Court declines to convert the motion into one for summary judgment, such affidavits "are not to be examined for the purpose of determining whether there is evidentiary' support for the pleading'" (Rovello v Orofino Realty Co., Inc., 40 N.Y.2d 633, 635 [1976]). Consequently, affidavits submitted from a defendant "will almost never warrant dismissal under CPLR 3211" (Lawrence v Miller, 11 N.Y.3d 588, 595 [2008]) "unless [they] establish conclusively that plaintiff has no cause of action" (Rovello, 40 N.Y.2d at 636).
Here it cannot be said that defendants met their burden establishing that plaintiff has no claim against them as a matter of law because the affidavits are not conclusive particularly as to defendants' relationship with co-defendants and/or the alleged abusers (see J.D.. 2023 NY Slip Op 01588; Engelman, 194 A.D.3d at 33-34). It is important to note that an affidavit is not necessarily subject to cross examination and the issue of whether an agency or employment relationship exists sufficient to hold defendants liable for co-defendants' acts and/or any defendant's negligence in failing to exercise reasonable care in hiring, supervising, or retaining the alleged abusers, may be a fact-intensive analysis as to the extent of defendants' power to order and control the agent's or employee's performance of work (see generally Castro-Quesada v Tuapanta, 148 A.D.3d 978, 979 [2d Dept 2017], quoting Barak v Chen, 87 A.D.3d 955, 957 [2d Dept 2011]; Griffin v Sirva, Inc., 29 N.Y.3d 174, 185-86 [2017] [noting that factors as to whether one is an employer may include '"(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant's conduct'"] quoting State Div, of Human Rights v GTE Corp., 109 A.D.2d 1082, 1083 [4th Dept 1985]).
Defendants' alternate request for relief pursuant to CPLR 3212 is denied as well. First, CPLR 3212 (a) explicitly requires that issue be joined and defendants have not yet filed an answer (see Alro Builders and Contractors, Inc, v Chicken Koop, Inc., 78 A.D.2d 512, 512 [1st Dept 1980]). Second, it is clear that discovery remains outstanding related to the issue mentioned above about the exact nature and scope of the relationship between defendants, co-defendants, and the tortfeasor(s), among others. Accordingly, summary judgment is premature (see Rutherford v Brooklyn Navy Yard Dev. Corp., 174 A.D.3d 932, 933 [2d Dept 2019]; Rodriguez Pastor v DeGaetano, 128 A.D.3d 218, 227-28 [ 1 st Dept 2015]).
Accordingly, it is hereby ORDERED that the motion is denied; and it is further
ORDERED that the movants shall file and serve an answer to the complaint within twenty (20) days from service of a copy of this order with notice of entry; and it is further
ORDERED that the parties shall proceed with discovery pursuant to CMO No. 2, Section IX (B) (1) and submit a follow up compliance conference order on or before 9-1-2023 (see NYSCEF Doc No 59).
This constitutes the decision and order of the Court.