LG 51 Doe v Cazenovia Park Hockey Assn. Inc.

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LG 51 Doe v Cazenovia Park Hockey Assn. Inc. 2021 NY Slip Op 33524(U) February 17, 2021 Supreme Court, Erie County Docket Number: Index No. 803240/2020 Judge: Deborah A. Chimes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 80324 0/2020 t-1Y==-:i=-==---===~==-===-=------..-r==-=--=o-::-9-=-::-3-:-1---=-= RECEIVDIOtwstmF soQlAOj!;iQHl RECEivi!P~~F~oaj18~1ia91 04:13 P RECEIVED HYSCEP: 02/18/2021 SUPREME COURT; STATE OF NEW YORK COUNTY OF ERIE LGSl DOE Plaintiffs, vs. DECISION INDEX NO.: 803240/2020 CAZENOVIA PARK HOCKEY ASSOCIATION INC., Individually and as SUCCESSOR IN INTEREST TO CAZENOVIA PARK HOCKEY ASSOCIATION, WESTERN NEW YORK AMATEUR HOCKEY LEAGUE, INC., NEW YORK STATE AMATEUR HOCKEY ASSOCIATION, INC., USA HOC.KEY, INC. Defendants. Defendan~ Western New York Amateur Hockey League, Inc., New York State Amateur Hockey Association, Inc. and USA Hockey, Inc., (hereinafter collectively, USA Hocby), moved to dismiss the Complaint pursuant to CPLR 32l l(a)(7) (NYSCEF motion 001). Plaintiff opposed the motion to dismiss and c:ross-moved for leave to Amend the Complaint (NYSCEF motion 004). Defmidants, USA Hockey and Cazenovia Parle Hockey Association, Inc., opposed the motion for leave to Amend. USA Hockey also moved to consolidate this action with the action filed under index number 803236/2020 and to amend the caption (NYSCEF motion 003). Defendant, Cazenovia Park Hoclccy Association, joined the motion and there was no opposition to the motion. This claim was brought pursuant to the Child Victims Act (CPLR 214-g). In the Complaint, plaintiff alleges that he/she was a member ofthe Cazenovia Park Hockey Association and that he/she was sexually abused by coach, Gary Hayes, from 1983 to 1985. [* 1] INDEX NO. 803240/2020 RECEIVmt)!tW~F 800lA0~2Hll sits~ REcE1Vfffll¥i~F, 0 1 RBCBIVBD HYSCEF1 02/18/2021 • HYSCBP DOC. NO. SB USA Hockey moved to dismiss the Complaint pursuant to CPLR 321 l(a)(7), "On a motion to dismiss for failure to state a cause of action under CPLR 321 l(a)(7), we accept the facts as alleged in the complaint es true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. At the same time, however, allegations consisting ofbare legal conclusions ... arc not entitled to any such consideration. Dismis.,al of the complaint is warranted ifthe plaintiff fails to assert facts in support of an clement of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right ofn:covery" (Connaughton v Chipotle Mexican Grill, Inc., 29NY3d 137, 141•142 (2017] [internal citations omitted]). "Where evidentiuy material is submitted and considc:rcd on a motion to dismiss a complaint pumumt to CPLR 321 l (aX7), IIDd the motion is not converted into one for aummary judgment, the question becomes whether the plaintiff bas a cause of action, not whether the plaintiffhas stated one, and unless it has been shown that a material fact as claimed by the plaintiffto be one is not a met at all and unless it can be said that no significant dispute exists rcgardlng it, dismissal should not eventuate" (Christ the Rock World Re.,toratton Church lntL, Inc. v Ewmgelical Christian Credit Union. 153 AD3d 12261 1229 [2d Dept 2017] [citing Guggenl,eimer v Ginzburg, 43 NY2d 268, 274-275 (1977]]). "[A]ffidavits submitted by the defendant will seldom if ever warrant the reliefhe secb unless too the affidavits establish conclusively that plaintiffbas no cause of action" (Rove/lo v Orofino R.ealty Co., 40 NY2d 633, 636 [1976]). kl, to the claims for vicarious liability, here there is no employer-employee relationship, as the alleged pc,petrator of the abuse was a volunteer coach. Nonetheless, 11[u]uder the doctrine 2 [* 2] (FILED : ERIE COUNTY CLERK 03/08/2021 11:18 AM! NY!fftt.fif~ HIV COUNTY CLERK 03/02/2021 09 :31 AMl NY~nJ-L-, 18Rl9 COUNTY CLBU: 02[18[2021 04: 13 PMJ INDEX NO. 803240 / 2020 RECEIV.Diblffl!'~F eoQ1A0~2H~l RECEIVilPV.nft9:tF IJC\jj!,@i?H!l RECEIVED NYSCBP : 02/18/2021 ·· NYSCBF DOC. NO. 58 of reapondcat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency .. ,[A) principal-agent relationship can include a volunteer when the requisite conditions, including control and acting on another's behalf. are shown" (Rozmus v Wesleyan Church ofHamburg, 161 A.D.3d 1538, 1539 [4th Dept 2018] internal citations omitted). Assuming. for purposes of this motion, tbat a principal-agent relationship existed between USA Hockey and Hayes, the same general standards that apply to an employeremployee relationship under a theory ofrespondeat superior would likewise apply. "Under the doctrine of respondcat BUPcrior, an employer may be vicariously liable for the tortious acts ofits employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (Doe v Rohan, 17 AD3d S09, S12 [2d Dept 200S], Iv denied 6 NY3d 701 [200S]). Sexual abuse is a clear departure from scope of employment, "committed solely for penonal reasons, and unrelated to the furtherance ofhis employer's business" (id.; see also, Torrey v Portville Cent. Sch., 2020 NY Slip Op 50244(U) [Sup Ct Cattaraugus County 2020J; Mazzarella v Syracuse Diocese, 100 AD3d 1384, 138S [4th Dcpt2012]; and Mary KK vJackU, 203 AD2d 840,841 [3d Dept 1994)). Therefore, as a matter of law, the doctrine ofrespondeat superior is not applicable to the present matter. The motion to dismiss ofUSA Hockey is granted and all causes of action based on a theory of vicarious liability for the alleged abuse of plaintiffby Hayes are dismissed. Those include the First. Fifth and Sixth causes ofaction in the Complaint The remainder of plaintiff's claims; the second, third and fourth causes of action. arc based on negligence. The Court finds that the Complaint states a claim for negligence against USA Hockey. Moreover, the Affidavits submitted by USA Hockey do not concl111ivcly 3 [* 3] INDEX NO. 8 0 3240/20 2 0 RECEIVM,~W,F ao§}4§1iif&-1 RECEI~¥dl?zF, 0 a~,~l RECEIVBD NYSCBPi 02/1B/2oi1 establish that no significant dispute exists regarding the allegations of negJigence. Without more and at this stage of the litigation, the alJcgations must be accepted as hue and plaintiff should be allowed an opportunity to engage in discovery. Whether there is factual support for plaintiff's allegatioM and the existence of a duty running from the moving defendants to plaintiff may be addressed after further discovezy in a motion for ll1llDlDJUY judgment. The motion to dismiss the negligence causes of action is denied. Plaintiff cross-moved to amend the Complaint to add edditional allegations and causes of action all of which are based on negligence. CPLR 3025(a) states that "{a] party may emend his pleading once without leave of cowt within twenty days after its service. or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it." Under the circumstances here, CPLR 3025(a) must be read in conjunction with CPLR 321 l(t), which states that "[s]e:rvice of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days afta- service of notice of entry of the order." Here, the initial Complaint was filed on March 3, 2020. USA Hockey did not Answer the Complaint, but instead filed a motion to dismiss on September 16, 2020. Plaintiff's time to Amend the Answer p11r.1uant to CPLR 3025(a) is extended, per CPLR 321 l(f), to ten days after service of notice of entry on the motion to dismiss. Plaintiffs motion is therefor denied as unnecessary. Pursuant to CPLR 602(a), USA Hockey moved to consolidate this action with anotbar captioned LG SJ Doe v Gerald P. Hayes. index no 803236/2020, and to amend the caption to 4 [* 4] INDEX NO. 803240 /2 020 RECEI'Vflft>dW~F eotU.tO.Bi~j~ 1 NY m co1JNTY CLEIUt 02 1e 2021 04113 NYSCBP DOC, NO, 58 RECEivi!PWCi~F~0~~,8~~1 RECBIVBD NYSCBFi 02/18/2021 include Gerald Hayes. The motion is granted pursuant to CPLR 602(a) u the two matters involve common questions of law and/or fact Mormvcr, the motion was unopposed. CoOD8Cl for USA Hockey is ID prq,are and submit Orders on NYSCEF motions 001 and 003. Plaintiffis to prepare and submit an Ordc:r on NYSCEF motion 004. All Onlen shall attach the Court's Decision and are to be filed within 30 days. DATED: __£)~~ /./c~--- Buffalo, New York February 17, 2021 HON. DEBORAH A. CHIME, J.S.C. s [* 5]

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