Doe v Congregation of the Mission of St. Vincent De Paul in Germantown

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Doe v Congregation of the Mission of St. Vincent De Paul in Germantown 2016 NY Slip Op 32061(U) September 13, 2016 Supreme Court, Queens County Docket Number: 711854/15 Judge: Allan B. Weiss Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: QUEENS COUNTY CLERK 09/21/2016 02:37 PM 1] NYSCEF DOC. NO. 35 INDEX NO. 711854/2015 RECEIVED NYSCEF: 09/21/2016 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE ALLAN B. WEISS Justice IA Part ---=2=---- JANE DOE, a minor, by and through her parents and natural guardians, BASILIO MORA and NELLY CERDAS, her biological parents Index No: 711854/15 Motion Date: 5/20/16 Motion Seq. No.: 1 Plaintiff, Motion Date: 6/29/ 16 Motion Seq. No.: 5 -againstCONGREGATION OF THE MISSION OF ST.VINCENT DE PAUL IN GERMANTOWN s/h/a CONGREGATION OF THE MISSION OF ST. VINCENT DE PAUL, EASTERN PROVINCE OF THE CONGREGATION OF THE MISSION OF ST. VINCENT DE PAUL, VICE PROVINCE OF THE CONGREGATION OF THE MISSION OF ST. VINCENT DE PAUL AND THE ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE, FILED SEP 2 1 2016 COUNlY CLERK QUEENS COUNTY Defendants. T he fo llowing papers numbered EF3 to EF34 read on thi s motion by Congregation of the M ission of St. Vincent De Paul in Germantown s/h/a Congregation of the Mission of St. Vincent De Pal, Eastern Province of the Congregation of the Mission of St. Vincent De Paul (herein, "the Vincentians"), to dismiss the complaint, insofar as asserted against it, pursuant to CPLR 32 11 (a)(7); motion by Diocese of Rockville Centre (DRC), to dismiss the compl aint, insofar as asserted against it, pursuant to CPLR 32 11 (a)(7); and cross motion by plaintiffs to deny the motion by the Vincentians, and for a continuance to permit disclosure and discovery of facts solely within the control of the Vincentians. 1 of 9 [* 2] Papers Numbered Notice of Motion - Affidavits - Exhibi ts ..... ................. .. ... ..... .. Notice of Cross Motion - Affidavits - Exh ibits .... ................... . Answering Affidavits - Exh ibits ........................ ...................... . Reply Affidavits ........... .............. ...... .......... .............................. . EF3 -7, 30-32 EF 21 -EF25 EF26-27,33 -34 EF26-EF27 Upon the foregoing papers it is ordered that the motions are combined herein for di sposition. The motions and cross motion are determined as follows: Pia inti ff, Jane Doe, a minor, and her parents Basilio Mora and Nelly Cerdas, bring this action based upon allegations that Augusto Cortez, a Roman Cath oli c priest, sexually abused Jane Doe during a fam ily celebration at pla inti ffs ' home on June 28, 2014. Cortez has since fled the country and is not a party to the instant lawsuit. In his absence, plaintiffs have sued the Vincentians, along with the Roman Catholic Diocese of Rockville Centre, al leging various claims of negligence and fraudulent concealment. D efendants separately move to di smiss the complaint pursuant to CPLR 32 l l (a)(7). The motions are opposed by plaintiffs, and plaintiffs cross move to deny the motion by the Order on the ground that it is premature, pursuant to CPLR 32 l l ( d), and for a continuance to permit disclosure and discovery of in formation pertaining to the alleged employer/employee relationship between V incentians and Cortez. T he Vincentians oppose the cross motion for a continuance. Facts Augusto Cortez was ordained in the Vincentian Order ("the Order"), in Princeton, New Jersey in 2003. One of the parish churches w here Cortez was assigned and was otherwi se authorized by the Order and the DRC to work as a priest was St. Rosa lie Roman Catholic Parish Church ("St. Rosalie"). St. Rosalie is a parish church within the DRC, and is owned by the DRC. The Order and the DRC assigned Cortez to the Hispanic Ministry at St. Rosal ie in 2004. H e was later transferred to the St. John the Baptist Parish Catholic School, in Brooklyn, New York. On May 28, 2008, Cortez sexually abused a 12-year old female student by fondling her breasts w hen he was alone with her in a computer room of St. John the Baptist Roman Catho lic Parish Churcli School ("the School"). On June 6, 2008, Cortez was indicted by a Kings County Grand Jury for forcible touching , endangering the welfare of a chi ld, sexual abuse in the second degree and harassment. 2 2 of 9 [* 3] On August 6, 2008, Cortex was arraigned for sexua lly abusing the girl. A the arraignment hea ring, the Judge who presided over the criminal case involvi ng Cortez req uested verification of Cortez' residential situation and an explanati on of the supervis ion that would be maintained over him by the Order during any period of probation that may be imposed by the Court. In answer to the Court' s inquiries, the Order, by and through its Provincial, submitted a letter to Cortez' defense attorney (Harold Levy), on August 18, 2008. Within the letter, the Order indicated that rather than Jaiciz ing Cortez from the priesthood, the Vincentians assigned him to the Order's headquarters in Germantown, Pennsy lvania for supervision. The letter from the Order assured the Court of the restrictions that it was placing on Cortez, specifically: that Cortez had been removed by the Order from the public mini stry and would never return to public ministry because of the accusation against hi m; th at Cortez would not be allowed by the Order to present himself as a priest; that Cortez was assigned by the Order to the Order's headquarters in Philadelphia where his activities wou ld be supervised and limited; that the large size and nature of the Seminary assured supervis ion of Cortez; that Cortez would work within the Seminary in a clerical role; th at the Vincentians wou ld create for Cortez an active and superv ised safety plan that li m ited his activ ity and assured that he would have no contact w ith children; that Cortez' placement at said Seminary woul d guarantee appropriate supervision and access by Cortez' care team; that Cortez was adm itted to St. John Vianney Center in Downington Pennsylvani a fo r residential treatment fo llowing intens ive evaluation on Jun e 22, 2008; that Cortez ' admission at St. John Vianney Center wou ld last for about two to four months and would be followed by continued supervis ion and out-patient care; that fo ll owing Cortez' court appearance on August 6, 2008, he would return to St. John Vianney Center for further treatment until his October 22, 2008 court appearance; that the Provincial him self would continue to work w ith the Province Review Board which advises on matters involving priest sexual abuse of minors; and that the Prov incial personally assured Cortez' defense attorney Levy of his continued cooperation with all involved in the matter. Levy then submitted the O rder's letter to the Court on August 20, 2008. On May 15, 2009, Cortez pied gui lty to the forcible touchi ng charge. On June 2 9, 2009, in accord ance w ith the representations that the Order made to the Court in its August 18, 2008 letter, the Order implemented a "Personal Safety Plan: Augu sto Cortez, C .M. ," hereinafter "Safety Plan. " The initials " C.M." fo ll owing Cortez' name denoted that he was a member of the Congregation of the Mission of St. Vincent de Paul , similar to those initials fo ll ow ing th e names of the Prov incial, Ass istant Provinci al and other members of the Order. The Personal Safety Plan stated that prior to Cortez' sexual assault of the female child on May 29, 2008, the Prin cipal at the School- w ho himself was an employee of the Brooklyn Diocese- had warned Cortez " not to stand so near the girls in the School or be so affectionate w ith them.' The Perso nal Safety Plan a lso noted that" ... the principal had warned him 3 3 of 9 [* 4] aga inst going past th e right boundaries and yet he acted in a contrary way." The Personal Safety Pl an required a once-a-yea r formal rev iew of Cortez' compliance. The Personal Safety Plan further noted Cortez' " inability to contro l his impul ses" an d "poor j udgment. " T he Persona l Safety Plan a lso outlined a series of "Risk R eduction Strategies" to dea l with Cortez' " Inappropriate Boundaries w ith Young G irls," which were ways in w hich the Order attempted to prevent Cortez from sexually abusing children, inc ludi ng th ose w ith whom he ca me into contact by v irtue of being a member of th e Order. These "strategies" inclu ded ongo in g therapy, spiritual directi on, support meeting with other members of the Order, a prohi bition fro m Cortez being a lone with any mi nors, a prohib ition from Cortez engagi ng in public ministry or presenting himself as a p riest, monthly meetings with hi s Superv isor to rev iew his progress, and his attachment to De Paul Novitiate, w hi ch is located in Phi ladelphia and is part of the Order. Other confreres at the Order's headquarters were informed of Cortez' situation. Cortez received fi nanc ial support from th e Order, incl ud ing a car and rent for hi s apartment. Cortez' P ersonal Safety Plan furth er identified as a " Consequence for Non-Compli ance with P lan," the potential dismissa l from the Congregation. Cortez returned to the New York C ity area after leaving Philade lph ia in May 2009. On July 8, 2009, the Provincial re layed the details of the P ersona l Safety Plan to Cortez' defense attorney Levy, w ho then (on the fo llowing day) wrote a Jetter to the Supreme Court attaching the Provincial' s email to answer the Court's questions regarding Cortez' living s ituati on and proposed supervision fo r the duration of his probation. On July 23, 2009, as a result of the Order's intervention, Cortez was placed on probation fo r a period of s ix (6) years, end ing on July 22, 20 15. Cortez was then released to the care and custody of the Order, under the superv is ion plan the Order provided to the Court on August 18, 2008, and pursuant to the Persona l Safety Plan that the Order had imp lemented with Cortez. At the sentencing hearing, Cortez' address was 75 Lewis /\ venue, in Brooklyn, New York - the same address of St. John the Baptist P ari sh Church. The P ersonal Safety Plan was reviewed in 20 10, 201 1 and 2012. As of July 2013 , th e Order was still d irectly involved in contro lling Cortez' day-to-day activ ities, continued to superv ise him in the ways enumerated by the Persona l Safety P lan, and continu ed to provide financ ial ass istance to Cortez. D uring the review of th e Personal Safety Plan in 20 13, the Order updated Cortez' Personal Safety Plan to acknowledge hi s updated livi ng arrangements, and also acknowledge that Cortez sti ll had " inappropriate boundaries with young girls." Jane Doe' s parents first met Cortez at their o ldest daughter' s First Communion in 2004, at wh ich Cortez participated in the F irst Communion Mass at St. Rosa lie as a Vi ncentian priest. Fo ll owi ng the First Communi on Mass, Cortez attended a party for Jane 4 4 of 9 [* 5] Doe' s family. Following the First Communion party, Cortez began frequently associating with Jane Doe's family in his capacity as a Vincentian priest. Jane Doe was born on September 26, 2007. Cortez visited Jane Doe's family home a number of times, all in his capacity as a priest. Cortez performed various Catholic religious ceremonies in Jane Doe's family home, such as conducting mass and blessing meals. After his arrest in 2008, Cortez remained a member of the Order through the time Jane Doe's parents reported him to Suffolk County police in 2014. Following his arrest in 2014, Jane Doe' s mother called her parish priest, Father Stephen Grozio, a member of the Order, and inquired about the charges against Cortez. Plaintiffs allege that Father Grozio represented that Cortez' arrest was an "accident" and not a criminal act. It is alleged that Father Grozio made that representation regarding Cortez' arrest, to Jane Doe' s mother twice: first during a phone call, and agai n in a face-to-face meeting after the call. It is further alleged that Grozio had notice of the relationship between plaintifPs family and Cortez. Plaintiffs allege that the Order never informed them of any restrictions that the Order had placed on Cortez through the " Safety Plan," including the restrictions that Cortez was supposed to be supervised at all times and could not be alone with any children. Plaintiffs further allege that the Order failed to informed them that Cortez was prohibited from publicly acting as a priest. Plaintiffs allege that between 2009 and 2014, Cortez sexually abused Jane Doe, and that this abuse was discovered on June 28, 2014, when Cortez was found alone in a room with Jane Doe. Jane Doe's mother called the police and, following his interview with law enforcement, Cortez fled the country. Motion by the Vincentians and Cross Motion by Plaintiffs A motion to dismiss for failure to state a cause of action must be denied when a record must be developed to resolve questions of fact (see Rimberg & Associates, P. C. v Jamaica Chamber ofCommerce, Inc ., 40 AD3d l 066 [ 2007); see also Cabibi v Lundrigan, 7 AD3d 556 [ 2004]). As discovery has not yet taken place, the application is premature. Pursuant to 321 l (d), [s]hould it appear from affidavits submitted in opposition to a motion made under subdi vision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may order a continuance to permit furth er affidavits to be obtained or di sclosure to be had and may make such other order as may be just (see Cantor v Levine, 115 AD2d 453 [ 1985] (court has broad discreti on to grant plaintiff leave to conduct discovery respecting facts necessary to oppose defendant's motion to dismiss). When knowledge of facts is necessary for a party to properly oppose a motion to dismiss, and those facts are within the so le knowledge or possession of the movant, discovery is sanctioned if it has been 5 5 of 9 [* 6] demonstrated that such facts may ex ist (CPLR 321 1[d]; Cosmos Mason Supplies v Lido Beach Assoc., 95 AD2d 818 [ 1983]). In this case, plainti ffs contend that the relationsh ip between Cortez and the Order is within the exc lusive knowledge of the Order and that further discovery wou ld reveal the extent (if any), of an employment relationship between the two fo r purposes of ascertaining liabili ty. This information is sole ly within th e defendants ' know ledge. Therefore, thi s court g ives pla intiffs the benefit of the doubt by denying the motion to di smiss, without prejudice, to afford p laintiffs the opportunity to ascertai n the re lationship between the Order and Cortez through discovery (see Cantor v Levine, 115 AD2d 453 , 453[ 1985]). Motion by the DRC The court on a dismi ssal motion pursuant to CPLR 3211 (a) (7) " must take the allegations asserted w ith in a plain tiffs compla int as true and accord plaintiff the benefit of every poss ible inference, determining only w hether the facts as alleged fit within any cognizable lega l theory" (Samiento v World Yacht Inc., 10 NY3 d 70, 79 [2008]; see also CPLR 3026 [' (p) lead ings shall be li berally construed"]). Furthermore, a court may freely cons ider affidavits submitted by p laintiff to remedy any defects in the comp laint (Leon v M artinez, 84 NY2d 83, 88 [ 1994] ; see also Rovella v Orofino Realty Co., 40 NY2 d 633, 635636 [1 976] ; Uzzle v Nunzie Ct. Hom eowners Assn., Inc., 70 AD3d 928, 930 [20 10]), and must determine "whether the proponent of the pleading has a cause of action not whether he has stated one" ( Guggenheimer v Ginzburg, 43 NY2d 268, 275 [ 1977]). However, "wh ile factua l a llegations contained in the complaint are deemed true, bare lega l conclusions and facts flatl y contradicted on the record are not entitled to a presumpti on of truth" (Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 19 1, 194 [2009]). A c laimant states a cause of action for negligent hiring and retention by adequately all eging that the "employer knew or shou ld have known of the employee's propensity for the conduct w hi ch caused the injury" (Bumpus v New York City Tr. Auth., 47 AD3d 653 , 654 [2008] [internal quotation marks and ci tation omitted]; see also Jackson v New York Univ. Downtown. Hosp., 69 AD3d 80 1, 801-802 [2010]; Kenneth R. v Roman Catholic D iocese of Brooklyn, 229 AD2d 159, 161 , 163 [ 1997], cert denied 522 US 967 [ 1997], Iv dismissed 91 N Y2d 848 [1 997] [Appellate Divis ion, Second Department modified Kings County Supreme Court's deci sion and granted motion to dismiss plainti ffs' cla im that the Roman Catholic Diocese of Brooklyn was negligent in hiring and fa iling to establish proper guidelines and procedures for screening and investigating priests since there is " no common-law duty to institute specific procedures for hiring employees un less the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee"]). Here, plaintiffs alleges sufficient facts to permit an inference that DRC knew or should have known 6 6 of 9 [* 7] that Cortez would present a sexua l threat to the infant plaintiff and you ng parishioners at the time Cortez was ass igned to the church. Stating a claim for negligent supervision likewise requires that the supervisor must have " kn[ own] or shou ld have known of the employee's propensity for the conduct which caused the injury" (Kenneth R., 229 AD2d at 161 ). Three e lements are necessary to state a cause of action for negligent superv ision: (1) that the tortfeasor and defendant were in an emp loyer-empl oyee relationship; (2) that th e employer knew or shou ld have known of the employee's propensity to com mit the act(s) which caused the injury before the injury's occurrence; and (3) that the tort occurred on the employer's premises or w ith the employer's chattels (Bouchard v New York Archdiocese, 7 19 F Supp 2d 255, 26 1 [201 OJ, citing Ehrens v Lutheran Church, 385 F3 d 232, 235 [2d C ir 2004]). An emp loyer-employee relationship is not requ ired under New York case law (see e.g. Connell v Hayden, 83 AD2d 30, 50 [ 198 1]). Prevai lin g on a neg ligent supervi sion claim, though, requires a claimant to prove that the defendant knew or should have known about his subordinate's propensity for the conduct that caused the plaintiff's injury (see e.g. Mirand v City ofNew York, 84 NY2d 44, 49 [1994] ;Jackson vNew York Univ. Downtown Hosp., 69 AD3d at 801; Bumpus, 47 AD3d at 654; Peter T. v Children's Vil. , i nc., 30 AD3d 582, 586 [2006] ; KennethR., 229 AD2d at 16 1). No statutory requirement ex ists that neg Iigent supervision c laims be p leaded with specifi c ity (id. at 162) but " bare lega l conclusions and/ or factua l c la ims which are flat ly contrad icted by documentary evi dence shou ld be di smissed pursuant to CPLR 3211 (a) (7)" (id. [internal quotation marks and citation omitted]). The Appellate Division, Second Department in Kenneth R. upheld deni a l of a defendant's motion to di smi ss the plainti ffs' negligent supervision claim. There, the appell ate court considered the allegations made in pl aintiffs' bill of particulars that the defendant diocese received actua l or constructive notice of the codefendant priest's propens ity to sexually abuse minors through all eged comp laints made to the defendant diocese. The decision he ld that these all egations, if true, would sustain a cause of action sounding in negligent retention and negligent supervision (id. at 164). H ere, plaintiffs all ege that the church administrators had, on occas ions p ri or to the subj ect incident, expressed concern about Cortez's excess ive physica l contact with the schoo l's chi ldren, and had warned Cortez against such conduct. The court also considers the Safety Pl an where in defendant was to monitor Cortez because of their concern for his a lleged propensity to commit crimes against children. T he Personal Safety P lan stated that pr ior to Cortez' sexual assault of the female ch ild on May 29, 2008, the Principa l at the School- who himself was an empl oyee of th e Brooklyn D iocese- had warned Cortez " not to stand so near th e girls in the School or be so affectionate with them." The Personal Safety Plan also noted that " ... the principal had warned h im again st going past the right boundaries and yet he 7 7 of 9 [* 8] acted in a contrary way." T he Persona l Safety Plan required a once-a-year form al rev iew of Cortez ' compliance. The Personal Safety Pl an furth er noted Cortez ' " in abili ty to control hi s impulses" and " poor judgment. " T he Persona l Sa fety Plan also outlined a seri es of "Risk Reduction Strategies" to deal w ith Cortez' "Inappropriate Boundari es w ith Young G irls," w hi ch were ways in which the Order attempted to prevent C ortez from sexually abusing children, including those w ith whom he came into contact by virtue of being a member of the Order. These "strategies" included ongo ing therapy, spiritua l directi on, support meeting w ith oth er members of the Order and a prohibition from Cortez being alone w ith any minors. The court takes these allegat ions as tru e, beca use defendants have not conc lusive ly proved otherw ise, and v iews them, as required, in the li ght most favorab le to pl ainti ffs (Samiento v World Yacht Inc., 10 N Y3d at 79; Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 , 932 [2007]). Consequently, the facts a lleged in the pl ainti ffs' compl aint may be reasonably construed to demonstrate that DRC knew or should have know n of Cortez's propensity to commit th e sexual abuse that pl ainti ffs a llege occurred . Thus, plainti ffs suffic iently all ege a cause of acti on sounding in negligent superv ision and neg ligent retention. T he branch of th e motion which is to dismiss the cause o f acti on for negligent training and supervision, is also denied. T he evidence in the record re levant to the iss ue of defendants ' negligence in trainin g its staff and supervising C011ez indicates that Cortez had , on occas ions prior to the inc ident with the plaintiff, sexually assaulted a child and had been warned aga inst hi s inappropriate physical contact w ith other children. With regards to thi s cause of action, pl ainti ffs a llege that the Order fa iled to train its managers and employees who all owed Cortez to have access to Jan e Doe and her famil y and w ho fa iled to warn them that Cortez was a sexual predator who might have been incarcerated but for the Order' s agreement to supervise him and keep him away from children. This evidence suggests not only that Cortez had a history and propens ity for the crime(s) he is a ll eged to have committed, but a lso that defendant had knowledge of the same . An employer may, of course, be required to answer in damages fo r the tort o f an empl oyee aga inst a third party when th e employer has either hired or reta ined the employee w ith knowledge of the empl oyee's propensity for the sort of behav ior which caused the injured party's harm (see, e.g., Vanderhule v. Berinstein, 285 App Div 290, amended on other grounds 284 App Div 1089; see also, 37 NY Jur, Master and Servant, § 164.) T he employer's negligence lies in hi s having placed the empl oyee in a position to cause foreseeable harm, harm w hich would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of hi s employees ( Detone v Bullit Courier Serv., Inc., 140 AD2d 278, 279 [1988]). Final ly, on thi s issue, it is noted that although defendant asserts F irst Amendment protection, there is no suggestion that the alleged sexual misconduct o f defendant Cortez is 8 8 of 9 [* 9] a part of the tenets or practices of the Roman Catholic Church, or that restraint on it by the imposition of civil liability will in any way intrude on the free exercise of religion to an extent protected by the First Amendment. Indeed, inasmuch as it is conduct, and not creed, that underlies plaintiffs' action, and that the potential for civil consequences ex ists equally as to religious and non-re lig ious persons, and as to clergy and lay persons of all rel igions alike, the Free Exercise aspect of the First Amendment does not come into play to preclude plaintiffs' action (Employment Div. , Department of Human Resources of Oregon v. Smith, 494 U.S . 872 reh'g. denied 496 U.S. 9 13). The branch of the motion which is to dismiss the fraudulent concealment cause of action, is denied. Defendant contends that this claim should be dismissed because it is incidental to the claims arising out of Cortez ' sexua l abuse. The court disagrees. T he fra udu lent concealment claim results from purported direct conversations w ith the infant' s parent (s) and therefore is not incidental to the claims arising out of Cortez' sexual abuse. Conclusion The motions by the Vincenti ans and DRC to dismiss the comp laint pursuant to CPLR 32 11 (a)(7) are denied, and, thus, the plaintiffs ' cross motion is denied as unnecessary. Dated: Septembe'i.3 , 20 16 J.S.C. F\LEO SEP 2 \ 20\6 c ouNn' CLERK QUEENS c ouNn' 9 9 of 9

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