Opinion
Index No. 950270/2021
08-25-2023
T.K., Plaintiff, v. ARCHDIOCESE OF NEW YORK, ST. MARY'S CHURCH, Defendants.
Unpublished Opinion
MOTION DATE 11/12/2021
PRESENT: HON. ALEXANDER M. TISCH, Justice
DECISION+ ORDER ON MOTION
ALEXANDER M. TISCH, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 were read on this motion to/for DISMISSAL_.
Upon the foregoing documents, defendant Archdiocese of New York (Archdiocese) moves to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (7). Defendant St. Mary's Church (the Church) (collectively defendants or movants) cross-moves for the same relief on the same grounds.
Although the cross motion may be considered improper because it seeks relief against a nonmoving party (see Kershaw v Hosp, for Special Surgery, 114 A.D.3d 75, 87-89 [1st Dept 2013]), the Court notes that the plaintiff is not prejudiced by the defective nature of the cross motion in light of the opportunity to oppose, and did in fact oppose, the motion on the merits (see Sheehan v Marshall, 9 A.D.3d 403, 404 [2d Dept 2004J).
Plaintiff commenced the instant action seeking to recover damages for personal injuries sustained as a result of alleged sexual abuse inflicted by an unnamed ordained Catholic "priest" in 1980, when plaintiff was approximately 9 years old (NYSCEF Doc No 2, complaint at ¶¶ 5, 32-35). The complaint alleges that plaintiff attended and participated in church activities at the Church, and that defendants had a special relationship with the plaintiff and the alleged abuser (Id. at ¶¶ 10-31).
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 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]). 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]).
Contrary to defendants' contentions, the Court finds that plaintiff s failure to specifically identify the alleged abuser is not fatally insufficient as to warrant dismissal of the complaint. The complaint alleges that plaintiff was in defendants' custody and/or control and may therefore be owed a duty of care (see generally Mirand v City of New York, 84 N.Y.2d 44, 49-50 [1994]; Sokola v Weinstein, 78 Mise 3d 842, 857, n 10 [Sup Ct, NY County 2023] [citing cases]). "Plaintiffs inability to identify his assailant. . . does not preclude him from recovery" (Jones v Hiro Cocktail Lounge, 139 A.D.3d 608, 609 [1st Dept 2016], citing Burgos v Aqueduct Realty Corp., 92 N.Y.2d 544, 550-51 [1998]). The Court finds this particularly applicable where, as here, a negligence claim is asserted based on a duty of care owing directly from defendants to the plaintiff (see generally Sokola, 78 Mise 3d at 845-846, citing, inter alia, Pulka v Edelman, 40 N.Y.2d 781, 782 [1976]; Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 [2001], op after certified question answered, 264 F.3d 21 [2d Cir 2001]).
Further, the complaint asserts that the alleged abuser was under defendants' supervision, employ and/or control - if true, which this Court is required to assume (see Engelman v Rofe, 194 A.D.3d 26, 33-34 [1st Dept 2021]), the allegation would be sufficient to give rise to the negligent training, supervision, and/or retention claims, as set forth in the complaint. If not true, because of a lack of an employment relationship or sufficient level of control over the alleged abuser, then the claim would be unsuccessful (see, e.g., Jones v Hiro Cocktail Lounge, 139 A.D.3d 608, 609 [1st Dept 2016] ["Since the assailant was not identified, plaintiff could not demonstrate that [defendants] knew of the assailant's propensity to commit such attacks"]; see generally Sokola, 78 Mise 3d at 846-847 [stating elements for negligent hiring, retention and/or supervision claim, including requisite employment relationship]). However, that fact has yet to be proven or disproven. Indeed, "[t]he manner in which the defendant acquired actual or constructive notice of the alleged abuse is an evidentiary fact, to be proved by the claimant at trial. In a pleading, 'the plaintiff need not allege his [or her] evidence'" (Martinez v State, 215 A.D.3d 815, 819 [2d Dept 2023], quoting Mellen v Athens Hotel Co.. 153 AD 891 [1st Dept 1912]). As plaintiff notes in opposition, the abuser's identity may be revealed through minimal discovery (see generally Doe v Intercontinental Hotels Group, PLC, 193 A.D.3d 410, 411 [1st Dept 2021] [noting such facts may be supplemented in a bill of particulars]; G.T. v Roman Catholic Diocese of Brooklyn, N.Y,, 211 A.D.3d 413, 413-14 [1st Dept 2022] ["While the movant argues that plaintiff fails to allege specific facts that it had notice of the priest's criminal proclivities, at this pre-answer stage of the litigation, such information is in the sole possession and control of the movant"]). Therefore, the Court declines to dismiss the complaint on the basis that the alleged abuser is not identified by name (see, e.g., O'Brien v Archdiocese of New York, index no 950092/2020, NYSCEF Doc No 30 [Sup Ct, NY County August 13, 2021] [Silver, J.] [denying motion to dismiss on similar grounds]).
Accordingly, it is hereby ORDERED that the motion and cross-motion are denied; and it is further
ORDERED that the Archdiocese shall file and serve an answer to the complaint within (20) days after 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 first compliance conference order within 60 days from entry of this order.
This constitutes the decision and order of the Court.