Mulligan v Long Is. Fury Volleyball Club

[*1] Mulligan v Long Is. Fury Volleyball Club 2018 NY Slip Op 28132 Decided on May 1, 2018 Supreme Court, Suffolk County Santorelli, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 1, 2018
Supreme Court, Suffolk County

Sarah Mulligan, Plaintiff,

against

Long Island Fury Volleyball Club, DAYLE A. BRENNER, LCSW-R, and ALLAN CONCEPCION, Defendants.



17-622207



RAISER & KENNIFF, PC

Attys. for Plaintiff

300 OLD COUNTRY RD, STE 351

MINEOLA, NY 11501

BARNES CATTERSON LOFRUMENTO BARNES, LLP

Attys. for Defendant- Long Island Fury

445 BROADHOLLOW RD, STE 226

MELVILLE, NY 11747

KERLEY, WALSH, MATERA & CINQUEMANI, PC

Attys. for Defendant- Dayle A. Brenner

2174 JACKSON AVE

SEAFORD, NY 11783

PIANA & GIOE, LLC

Attys. For Defendant- Allan Concepcion

1200 VETERANS MEMORIAL HWY, STE 360

HAUPPAUGE, NY 11788
Joseph A. Santorelli, J.

In this action defendant Allan Concepcion moves for an order pursuant to CPLR 3211(a) (5) and (7) dismissing the first and fourth causes of action against him as time barred, or alternatively, dismissing the first cause of action for failure to state a cause of action. Defendant Long Island Fury Volleyball Club, hereinafter referred to as "LIFVC", separately moves for an order pursuant to CPLR 3211(a) (7) dismissing the first and second causes of action for failure to state a cause of action. Defendant Dayle A. Brenner separately moves for an order pursuant to CPLR 3211(a) (7) dismissing the first, second and third causes of action for failure to state a cause of action. Plaintiff opposes these applications in all respects.

Plaintiff in this action seeks recovery of damages for four causes of action. The first cause of action is for breach of fiduciary duty against defendants Concepcion, LIFVC, and Brenner. The second cause of action is for negligent infliction of emotional distress against defendants LIFVC and Brenner. The third cause of action is for professional malpractice against defendant Brenner. The fourth cause of action is for sexual assault and misconduct against defendant Concepcion. The plaintiff previously commenced a civil rights action on July 22, 2016 in the United States District Court for the Eastern District of New York. The federal causes of action were dismissed and the Court declined to exercise supplemental jurisdiction over the state law causes of action but did indicate that "the statute of limitations for any state law claims timely filed in this Court is tolled for a period of thirty (30) days after the date of this order", by Order dated October 18, 2017, (Feuerstein, J.). The plaintiff then commenced this action on November 16, 2017. The plaintiff claims that between January 2013 and April 2013 she had a sexual relationship with defendant Concepcion. Two of the dates on which the plaintiff claims they had sexual relations were during volleyball tournaments set up by defendant LIFVC where plaintiff and defendant Concepcion stayed with the volleyball team at hotels. The plaintiff was seeing defendant Brenner for therapy for several years before these incidents. The plaintiff alleges that sometime in early February 2013 she advised defendant Brenner that she was having a sexual relationship with defendant Concepcion, who was her assistant coach at the time for her travel volleyball team with LIFVC. The plaintiff claims that after she discussed the sexual relationship with defendant Brenner, Brenner encouraged her to tell her parents or that she would advise them of the relationship. The plaintiff advised her parents of the sexual relationship in April 2013. Defendant Concepcion was arrested in April 2013 based upon the underlying [*2]allegations contained in this complaint and pled guilty on April 4, 2014 to Endangering the Welfare of a Child. He was sentenced on July 11, 2014. The plaintiff's birthday is in early February 1996. Defendant Brenner claims that at the time that the plaintiff advised her of the relationship with Concepcion she was already seventeen years old and had reached the age of consent for sexual activity.

To succeed on a motion to dismiss pursuant to CPLR 3211(a) for failure to state a cause of action, the court must determine whether, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, plaintiff can succeed upon any reasonable view of the facts stated (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 754 NE2d 184, 729 NYS2d 425 [2001]; see also Fowler, Rodriguez, Kingsmill, Flint, Gray & Chalos LLP v Island Prop., LLC, 307 AD2d 953, 763 NYS2d 481 [2d Dept 2003], Bartlett v Konner, 228 AD2d 532, 644 NYS2d 550 [2d Dept 1996]). If 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 (see Wayne S. v County of Nassau Dept. of Social Services, 83 AD2d 628, 441 NYS2d 536 [2d Dept 1981]). The documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see Estate of Menon v Menon, 303 AD2d 622, 756 NYS2d 639 [ 2d Dept 2003], citing Leon v Martinez,84 NY2d 83, 88, 614 NYS2d 972, 638 NE2d 511, Roth v Goldman, 254 AD2d 405, 406, 679 NYS2d 92).

In the context of a CPLR 3211 motion to dismiss, the Court must take the factual allegations of the complaint as true, consider the affidavits submitted on the motion only for the limited purpose of determining whether the plaintiff has stated a claim, and in the absence of proof that an alleged material fact is untrue or beyond significant dispute, the Court must not dismiss the complaint (Wall Street Assocs. v Brodsky,257 AD2d 526, 684 NYS2d 244 [1st Dept 1999], citing Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co.,40 NY2d 633, 634-636). In making a determination whether the complaint sets forth a cognizable claim, evidentiary material may be considered to "remedy defects in the complaint" (see Dana v Shopping Time Corp., 76 AD3d 992, 908 NYS2d 114 [2d Dept 2010], quoting Rovello v Orofino Realty Co., supra at 40 NY2d at 636).

Motion to Dismiss by Defendant Concepcion

CPLR § 213-b states

Notwithstanding any other limitation set forth in this article or in article five of the estates, powers and trusts law, an action by a crime victim, or the representative of a crime victim, as defined in subdivision six of section six hundred twenty-one of the executive law, may be commenced to recover damages from a defendant: (1) convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the date of the crime or (2) convicted of a specified crime as defined in paragraph (e) of subdivision one of section six hundred thirty-two-a of the executive law which is the subject of such action for any injury or loss [*3]resulting therefrom within ten years of the date the defendant was convicted of such specified crime. (Emphasis added)

The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has pled a cause of action for breach of fiduciary duty cognizable at law as against defendant Concepcion. The causes of action against defendant Concepcion are not time barred as the plaintiff has shown that she was the victim of a crime which is the subject of this action and the action was commenced within seven years of the date of the crime which is January to April 2013. Therefore defendant Concepcion's motion to dismiss is denied.

The court notes that the motion to dismiss for lack of personal jurisdiction was withdrawn by stipulation dated March 22, 2018.

Defendant Concepcion shall serve his answer within thirty (30) days from service of a copy of this order.

Motion to Dismiss by Defendant LIFVC

"The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct". (Nachbar v Cornwall Yacht Club, ___AD3d___, 2018 NY Slip Op 02795, *2 [2018]; see also Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 921 N.Y.S.2d 260; Rut v Young Adult Inst., Inc., 74 AD3d 776, 901 N.Y.S.2d 715)

The Court in Nachbar v Cornwall Yacht Club, ___AD3d___, 2018 NY Slip Op 02795, *2 [2018], held that

Here, however, the complaint did not allege that the Club defendants failed to act in good faith on behalf of the Club or its members' collective interests, but merely alleged that they failed to act in Nachbar's personal best interest (cf. Pebble Cove Homeowners' Ass'n v Shoratlantic Dev. Co., 191 AD2d at 545; see also Straus v 345 E. 73 Owners Corp., 181 AD2d 483, 581 N.Y.S.2d 185). Accordingly, the complaint did not state a cause of action to recover damages for breach of fiduciary duty...As to the cause of action alleging intentional infliction of emotional distress, the complaint did not allege conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'" (Murphy v American Home Prods. Corp., 58 NY2d 293, 303, 448 N.E.2d 86, 461 N.Y.S.2d 232, quoting Restatement [Second] of Torts § 46, comment d; see Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 710-711, 954 N.Y.S.2d 559; cf. Matter of Leff v Our Lady of Mercy Academy, 150 AD3d [*4]1239, 55 N.Y.S.3d 392; Sawicka v Catena, 79 AD3d 848, 849-850, 912 N.Y.S.2d 666). The cause of action alleging negligent infliction of emotional distress also failed because the complaint did not sufficiently allege a duty to Minutolo, who was not a member of the Club, and further lacked the requisite "guarantee of genuineness" (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6, 881 N.E.2d 1187, 852 N.Y.S.2d 1; see generally Taggart v Costabile, 131 AD3d 243, 252-253, 14 N.Y.S.3d 388).

The Court in C.T. v Val. Stream Union Free Sch. Dist., 201 F Supp 3d 307, 327-328 [EDNY 2016], held that

"A claim for negligent infliction of emotional distress cannot be asserted if it is 'essentially duplicative of tort or contract causes of action.'" Virgil v. Darlak, No. 10-CV-6479P, 2013 U.S. Dist. LEXIS 110411, 2013 WL 4015368, at *10 (W.D.NY Aug. 6, 2013) (quoting Djangmah v. Falcione, 2013 U.S. Dist. LEXIS 13597, 2013 WL 208914, *9 (S.D.NY Jan. 18, 2013)); Moore v. City of New York, 219 F. Supp. 2d 335, 339 (E.D.NY 2002) ("The New York Court of Appeals has strongly cautioned against allowing emotional distress claims to be brought where other tort remedies are available." (citing Fischer v. Maloney, 43 NY2d 553, 373 N.E.2d 1215, 402 N.Y.S.2d 991 (NY 1978))).Plaintiffs contend that defendants "owed JT . . . a special duty of care to be free from physical harm or threats of physical harm while at school, and to be free from harassment by teachers and students," but breached this duty by permitting a continuous pattern of bullying and harassment, causing J.T. severe emotional distress. (See Pls.' Second Am. Compl. ¶¶ 71-72, ECF No. 20.) As evident from the discussion of the negligent supervision claim, this argument mirrors that claim, and therefore shall not be permitted to proceed separately. See, e.g., Caravalho v. City of New York, No. 13CV4174PKCMHD, 2016 U.S. Dist. LEXIS 44280, 2016 WL 1274575, at *23 (S.D.NY Mar. 31, 2016) (dismissing as duplicative negligent infliction of emotional distress claim because "the conduct at issue—[the defendant's] allegedly unreasonable use of force—and any resulting emotional damage is entirely subsumed by [the plaintiff's] common law assault and battery claim and his federal excessive force claim"); Virgil, 2013 U.S. Dist. LEXIS 110411, 2013 WL 4015368, at *10 (dismissing negligent infliction of emotional distress claim because the "conduct that provides the basis for [the plaintiff's] claim for negligent infliction of emotional distress is the same conduct underlying his claim for medical malpractice").

Defendant LIFVC claims that the plaintiff remained in the physical custody and control of her parents during the volleyball tournaments where defendant Concepcion had sexual relations with the plaintiff and therefore it did not owe a duty to her. LIFVC claims that the plaintiff's parent or parents went to all away tournaments, specifically the two where the plaintiff claims sexual encounters occurred and therefore plaintiff remained in her parents care and custody. In addition, LIFVC argues that the negligent infliction of emotional distress cause of action is duplicative of the breach of fiduciary duty cause of action and must be dismissed. In opposition, [*5]the plaintiff claims that she was separated from her parents and placed in rooms that were under the custody and control of LIFVC and its coaches. The plaintiff further alleges that her parents were in the same town for the tournaments but did not stay in the same hotels as the team. The plaintiff argues that the negligent infliction of emotional distress cause of action is not duplicative of the breach of fiduciary duty cause of action because it also encompasses the treatment of the plaintiff after the sexual contact with defendant Concepcion.

The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has pled a cause of action for breach of fiduciary duty cognizable at law as against defendant LIFVC. However, the cause of action for negligent infliction of emotional distress is "essentially duplicative" of the breach of fiduciary duty cause of action and therefore cannot be asserted against defendant LIFVC. Therefore defendant LIFVC's motion to dismiss is granted as to the negligent infliction of emotional distress cause of action and is otherwise denied.

Defendant LIFVC shall serve its answer within thirty (30) days from service of a copy of this order.

Motion to Dismiss by Defendant Brenner

Soc Serv § 413(1)(a) states, in relevant part,

The following persons and officials are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child, or when they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them in their professional or official capacity and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child:... social worker

Family Ct Act § 1012 defines a person legally responsible to

include[s] the child's custodian, guardian, or any other person responsible for the child's care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.

Penal § 130.05 states

1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim. 2. Lack of consent results from:...(b) Incapacity to consent;... 3. A person is deemed incapable of [*6]consent when he or she is: (a) less than seventeen years old

Defendant Brenner acknowledges that she is a mandatory reporter under Soc Serv § 413 but argues that she did not have to report the sexual conduct that the plaintiff admitted to engaging in with defendant Concepcion. Brenner claims that the plaintiff advised her of the sexual contact in February 2013, when she was seventeen years old, after she had already attained the age of consent. Brenner also claims that it was not a mandatory reporting situation because defendant Concepcion was not a person legally responsible for the plaintiff. Defendant Brenner also states that she advised and convinced the plaintiff to report the sexual conduct to her mother, which the plaintiff did in April 2013. In opposition the plaintiff claims that she was under the care of defendant Brenner since she was in ninth grade and that she "disclosed to Defendant Brenner that she was being raped and sexually abused by Defendant Concepcion in January or February of 2013."

The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has not pled a cause of action for breach of fiduciary duty, negligent infliction of emotional distress or professional malpractice as against defendant Brenner. Brenner has shown that the plaintiff attained the age of consent before she advised Brenner of the sexual relationship she had with Defendant Concepcion. In addition, since defendant Concepcion was not a legally responsible person under the Family Court Act for plaintiff, defendant Brenner did not have a duty to report the relationship at that time. Therefore defendant Brenner's motion to dismiss is granted and the complaint is dismissed as to defendant Brenner.

The foregoing shall constitute the decision and Order of this Court.

Dated: May 1, 2018

______________________________

HON. JOSEPH A. SANTORELLI

J.S.C.