Opinion
Index 950536/2020
10-26-2021
JOHN SZ, Plaintiff, v. THE ARCHDIOCESE OF NEW YORK, MARIST BROTHERS OF THE SCHOOLS, INC., ROMAN CATHOLIC CHURCH OF ST. PETER & ST. MARY OF THE ASSUMPTION, BROTHER GALLIGAN Defendant. Motion Seq. No. 002, 003, 004
Unpublished Opinion
DECISION + ORDER ON MOTION
Deborah A. Kaplan Judge
The following e-filed documents, listed by NYSCEF document number (Motion 002) 16, 17, 18, 19, 20, 28, 30, 32, 35, 36 were read on this motion to/for DISMISS.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 23, 24, 29, 31, 33, 34 were read on this motion to/for DISMISS.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 49, 50, 51, 52, 53 were read on this motion to/for DISMISS.
With the instant motions, defendants ARCHDIOCESE OF NEW YORK (hereinafter "the Archdiocese"), ST. PETER & ST. MARY CHURCH (hereinafter "Church"), and MARIST BROTHERS OF THE SCHOOLS, INC. ("Marist Brothers") (collectively "defendants") seek dismissal of plaintiff JOHN DOE SZ's (hereinafter "plaintiff) third, fourth, and fifth causes of action against them pursuant to CPLR §3211(a)(7). Plaintiff opposes defendants' respective motions.
BACKGROUND AND ARGUMENTS
Plaintiff brings this action under the Child Victims Act ("CVA") (CPLR §214-g). Plaintiff alleges that while he was a student at the Church from approximately 1971 to 1972, he was sexually molested, physically assaulted, and emotionally abused by Brother Damian Galligan ("Br. Damian"). Plaintiffs lawsuit names the Archdiocese, Church, Marist Brothers, and Br. Damian as the parties responsible for the alleged abuse. Plaintiffs complaint contains the following five causes of action asserted against the Archdiocese, Marist Brothers, and Church: (1) negligence; (2) negligent supervision, monitoring, training, and retention; (3) breach of special duty; (4) constructive fraud; and (5) civil conspiracy to commit fraud. In addition, plaintiffs complaint contains the following two causes of action asserted against Br. Damian only: (6) intentional infliction of emotional distress and (7) assault and battery.
In support of their respective motions, defendants argue that plaintiffs third cause of action for breach of special duty should be dismissed pursuant to CPLR §3211(a)(7) because it is insufficiently pleaded and because it is duplicative of plaintiffs negligence causes of action. Furthermore, defendants contends that plaintiffs fourth cause of action for constructive fraud should be dismissed pursuant to CPLR §3211 (a)(7) because it is inadequately pleaded. Finally, defendants assert that plaintiffs fifth cause of action for civil conspiracy to commit fraud should be dismissed pursuant to CPLR §3211(a)(7) because there is no such tort claim in New York.
In opposition, plaintiff argues that his causes of action for breach of special duty, constructive fraud, and civil conspiracy to commit fraud are fundamentally sound. Regarding breach of special duty, plaintiff avers that defendants incorrectly argue that a claim for breach of special duty only arises against a municipality. In fact, plaintiff argues that New York courts have long held that such claims may be brought against private actors who owe a special duty-i.e., a duty arising out of a special relationship-to a plaintiff. Furthermore, plaintiff argues that he has properly pleaded breach of fiduciary duty, which is a species of special duty. With respect to defendants' claims regarding constructive fraud and civil conspiracy to commit fraud, plaintiff argues that defendants misconstrue the applicable legal standards, and that both causes of action are properly pleaded in this lawsuit.
DISCUSSION
The court on a dismissal motion pursuant to CPLR §3211(a)(7) "must take the allegations asserted within a plaintiffs complaint as true and accord plaintiff the benefit of every possible inference, determining only whether the facts as alleged fit within any cognizable legal theory" (Samiento v. World Yacht Inc., 10 N.Y.3d 70, 79 [2008]; see also CPLR §3026 ["(p)leadings shall be liberally construed"]). Furthermore, a court may freely consider affidavits submitted by plaintiff to remedy any defects in the complaint (Leon v. Martinez, 84N.Y.2d 83, 88 [1994]; see also Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636 [1976]; Uzzle v. Nunzie Court Homeowners Assn., Inc., 70 A.D.3d 928, 930 [2010]) and must determine "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977]). However, "while factual allegations contained in the complaint are deemed true, bare legal conclusions and facts flatly contradicted on the record are not entitled to a presumption of truth" (Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 A.D.3d 191, 194, [2009]).
A. Breach of Special Duty
Here, adopting the aforementioned standards for scrutinizing dismissal motions made pursuant to CPLR §3211(a)(7), the court finds that plaintiffs third cause of action for breach of special duty is insufficiently pleaded, and does not apply to the allegations in plaintiff's complaint. Contrary to plaintiffs assertions, the "special duty" rule involves claims against municipalities (see Kircher v. Jamestown, 74 N.Y.2d 251 [1989] ["the purpose of the special duty rule [is] to rationally limit the class of citizens to whom the municipality owes a duty of protection."]; Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420 [2013]["We have recognized that a special duty can arise in three situations: (1) the plaintiff 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 municipality took positive control of a known and dangerous safety condition."]; Cuffy v. City of New York, 69 N.Y.2d 255 [1987]["In a line of cases...we recognized a narrow right to recover from a municipality for its negligent failure to provide police protection where a promise of protection was made to a particular citizen and, as a consequence, a 'special duty' to that citizen arose." [citation omitted]; Weisbecker v. West lslip Union Free School District, 109 A.D.3d 657 [2d Dept 2013]["This special duty arises when a municipality assumes an affirmative duty to act on behalf of a specific party, and that party justifiably relies on the direct assurances of the municipality's agents"]). Since plaintiff is not claiming here that a municipality is liable for the acts alleged in the complaint, the "special duty" doctrine is inapplicable. Accordingly, plaintiffs cause of action for breach of special duty must be dismissed.
To the extent that plaintiff s "breach of special duty" is construed as analogous to a "breach of fiduciary duty" claim, any such purported claim for breach of fiduciary duty must, likewise, be dismissed because it is insufficiently pleaded and duplicative of plaintiff s other negligence causes of action. To be sure, courts have articulated that a fiduciary duty exists when a plaintiffs relationship with a church extends beyond that of an ordinary parishioner (see Doe v. Holy See [State of Vatican City], 17 A.D.3d 793, 795 [3rd Dept 2005]). That said, a fiduciary relationship is not applicable to all parishioners, and can be established upon a showing that a congregant's relationship with a church entity resulted in "de facto control and dominance" when the congregant was "vulnerable and incapable of self-protection regarding the matter at issue" (Marmelstein v. Kehillat New Hempstead, 11 N.Y.3d 15, 22 [2008]). The existence of a fiduciary duty is a fact-specific question to be determined by the fact-finder, such that breach of fiduciary duty claims at times are not dismissed before the parties have had the opportunity to conduct discovery (see Doe v. Holy See [State of Vatican City], 17 A.D.3d 793, supra).
Here, plaintiff has alleged that a fiduciary duty was owed to all parishioners on account of defendants' position as caretakers and moral authorities. Assuming every fact alleged to be true and liberally construing the pleading in plaintiffs favor, the allegations for breach of fiduciary duty are insufficient as a matter of law. Plaintiffs breach of fiduciary duty, as pleaded in the complaint, is no different from plaintiffs negligence causes of action. To be sure, plaintiff has failed to allege any facts to demonstrate that plaintiffs relationship with any of defendants was unique in any way or different than any other parishioner practicing their faith. Where, as here, plaintiffs complaint bases the alleged existence of a special or fiduciary duty on facts that: (1) plaintiff was a minor; (2) Br. Damian treated plaintiff with more attention and kindness than the other boys in plaintiffs class; (3) Br. Damian had plaintiff go to his residence at the Marist Brother's house; and (4) Br. Damian gifted plaintiff a medallion, with nothing more, any purported cause of action for breach of fiduciary duty is insufficiently pleaded and must be dismissed. Accordingly, plaintiff has failed to state a cause of action for breach of fiduciary duty, and defendants' respective motions to dismiss plaintiff's third cause of action are granted pursuant to CPLR §3211(a)(7).
B. Constructive Fraud
Likewise, plaintiffs fourth cause of action for constructive fraud must be dismissed as it is inadequately pleaded. "[T]he essential elements of a fraud claim [are] misrepresentation of a material fact, falsity, scienter and deception" (Barclay Arms Inc. v. Barclay Arms Associates, 74 N.Y.2d 644 [1989]). 'The circumstances constituting the fraud must be stated in detail" (Small v. Lorillard Tobacco Company, Inc., 94 N.Y.2d 43 [\999][citing CPLR §3016[b]). "The essential substantive difference between actual and constructive fraud is that constructive fraud does not require an allegation of actual knowledge of the falsity of the representation by the defendant" (Schoen v. Martin, 187 A.D.2d 253 [1st Dept 1992][citing Del Vecchio v. Nassau County, 118 A.D.2d 615 [2d Dept l986][the elements of a constructive fraud claim are "(1) a representation was made, (2) the representation dealt with a material fact, (3) the representation was false, (4) the representation was made with the intent to make the other party rely upon it, (5) the other party did, in fact, rely on the representation without knowledge of its falsity, (6) injury resulted and (7) the parties are in a fiduciary or confidential relationship."]).
Here, plaintiffs constructive fraud cause of action should be dismissed because plaintiff has failed to adequately plead any of the seven elements required to establish a constructive fraud claim. The most glaring deficiency in plaintiffs complaint is that plaintiff failed to specify the distinct representation(s) that was made to plaintiff or his parents. In Gregor v. Rossi, 120 A.D.3d 447 (1st Dept 2014), the Appellate Division, First Department, held that plaintiff s claims for fraud and constructive fraud should be dismissed because the complaint failed to provide the requisite particularity required by CPLR §3016(b) with respect to the fraud element of a false allegation "because the words used by defendants and the date of the alleged false representations are not set forth." Here, as in Gregor v. Rossi, plaintiffs complaint is devoid of any details about the purported representations, the words used by defendants, and the dates of the alleged false representations. In the absence of such details, defendants' respective applications for dismissal of plaintiff s fourth cause of action premised on constructive fraud, are granted.
C. Civil Conspiracy to Commit Fraud
Finally, plaintiffs cause of action for civil conspiracy to commit fraud must be dismissed as "it is well settled that New York does not recognize an independent civil tort of conspiracy. While a plaintiff may allege, in a claim of fraud or other tort, that the parties conspired, the conspiracy to commit a fraud or tort is not, of itself, a cause of action" (Hoeffner v. Orrick Herrington & Sutcliffe LLP, 85 A.D.3d 457 [1st Dept 2011]). "Although a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme, New York does not recognize an independent tort of conspiracy" (Nerey v. Greenpoint Mortgage Funding, Inc., 144 A.D.3d 646 [2d Dept 2016]["Since the underlying fraud claims against the ReMax defendants are not viable, the seventh cause of action alleging conspiracy must fail insofar as asserted against them as well."]). "Since New York does not recognize a substantive tort of conspiracy and plaintiffs have not properly pleaded any other causes of action, the action was properly dismissed" (Jebran v. LaSalle Business Credit, LLC, 33 A.D.3d 424 [1st Dept 2006]).
Based on the foregoing, it is hereby
ORDERED that defendants' respective applications to dismiss plaintiffs third, fourth, and fifth causes of action as against them, are granted; and it is further
ORDERED that the Clerk of the court is directed to enter judgment in favor of defendants with respect to dismissal of plaintiff s third, fourth, and fifth causes of action accordingly.
This constitutes the decision and order of the court.