J.D. v Archdiocese of N.Y.

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J.D. v Archdiocese of N.Y. 2022 NY Slip Op 32913(U) August 18, 2022 Supreme Court, New York County Docket Number: Index No. 950753/2020 Judge: Laurence Love 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. 950753/2020 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:37 PM NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/25/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LAURENCE LOVE Justice ---------------------------------------------------------------------------------X J. D., INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 63M 950753/2020 03/31/2020 001 -vTHE ARCHDIOCESE OF NEW YORK, ROMAN CATHOLIC CHURCH SAINT FRANCIS DE SALES DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 were read on this motion to/for DISMISSAL . Upon the foregoing documents, it is The following reads on Defendant – Archdiocese of New York’s pre – answer motion to dismiss per CPLR 3211(a)(7) – failure to state a cause of action; or in the alternative to dismiss Plaintiff’s fourth cause of action for outrage and intentional infliction of emotion distress per CPLR 3211(a)(7) – failure to state a cause of action; and The cross – motion by Defendant – Roman Catholic Church Saint Francis De Sales “for an Order be entered granting Cross – Movant the dismissal of Plaintiff’s Complaint.” Roman Catholic Church Saint Francis De Sales has submitted an answer; and The cross – motion by Plaintiff “for an order for a default judgment against the defendant Archdiocese of New York’s for refusing to enter an answer and rather bringing a frivolous motion to dismiss and striking the answer of defendant Saint Francis De Sales.” 950753/2020 D., J. vs. ARCHDIOCESE OF NEW YORK Motion No. 001 [* 1] Page 1 of 4 1 of 4 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:37 PM NYSCEF DOC. NO. 34 INDEX NO. 950753/2020 RECEIVED NYSCEF: 08/25/2022 Plaintiff alleges abuse per the Child Victims Act, CPLR 214-g, with causes of action for (i) negligence, (ii) “negligent hiring,” (iii) negligent hiring, retention, supervision, and/or direction, and (iv) “outrageous conduct causing emotional distress.” “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (see Leon v. Martinez, 84 N.Y.2d 83 [1994]). When considering a motion to dismiss under CPLR 3211(a)(7), a court must accept the factual allegations of the pleadings as true, affording the non-moving party the benefit of every possible favorable inference and determining “only whether the facts as alleged fit within any cognizable legal theory” (see D.K. Prop., Inc. v. Natl. Union Fire Ins. Co. of Pittsburgh, 168 A.D.3d 505; Weil Gotshal & Manges LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267 [1st Dept. 2004]). “In order to prevail on a negligence claim, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (see Pasternack v. Lab. Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]). A claim for negligent supervision, hiring, or retention requires allegations establishing that “the relationship between the defendant and the person who threatens the harm to the third person may be such as to require the defendant to attempt to control the other’s conduct” (see Pulka v. Edelman, 40 N.Y.2d 781, 783 [1976]). Defendant – Archdiocese of New York submits an affirmation, “Plaintiff’s Complaint is entirely devoid of any details regarding the identity of ‘the Priest.’ Instead, the Complaint is 950753/2020 D., J. vs. ARCHDIOCESE OF NEW YORK Motion No. 001 [* 2] Page 2 of 4 2 of 4 INDEX NO. 950753/2020 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:37 PM NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/25/2022 replete with conclusory allegations that ‘the Priest’ was ‘a priest, counselor, trustee, director, officer, employee, agent, servant and/or volunteer’ of each of the named Defendants. Defendant Archdiocese of New York does not submit an affidavit of anyone with personal knowledge nor certificates of incorporations. Defendant – Roman Catholic Church Saint Francis De Sales affirmation in support continues with “said Complaint fails to identify and/or specify the individual who is said to have committed the underlying act from which the claim of negligence as against Defendants stems” (see NYSCEF Doc. No. 16 Par. 3). The affidavit from Petitioner states, “[a]lthough I do not remember the name of the priest, I do have a photo of him (see exhibit ‘A’)” (see NYSCEF Doc. No. 20 Par. 3). Plaintiff submits a photo (see NYSCEF Doc. No. 21). Defendant – Archdiocese of New York affirms, “there is nothing frivolous about the Archdiocese’s motion which has been brought in good faith upon facts that plaintiff admits – that he cannot identify the person who allegedly caused him harm” (see NYSCEF Doc. No. 24 Par. 11). Plaintiff has substantiated the identity of the alleged abuser through a photograph and further discovery will lead to an identification. Plaintiff’s cross – motion for a default judgment has not been shown and the motion for sanctions is unwarranted. It is now ORDERED that Defendant – Archdiocese of New York’s pre – answer motion to dismiss per CPLR 3211(a)(7) – failure to state a cause of action; or in the alternative to dismiss Plaintiff’s fourth cause of action for outrage and intentional infliction of emotion distress per CPLR 3211(a)(7) – failure to state a cause of action is DENIED; and it is further 950753/2020 D., J. vs. ARCHDIOCESE OF NEW YORK Motion No. 001 [* 3] Page 3 of 4 3 of 4 INDEX NO. 950753/2020 FILED: NEW YORK COUNTY CLERK 08/25/2022 04:37 PM NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/25/2022 ORDERED that the cross – motion by Defendant – Roman Catholic Church Saint Francis De Sales “for an Order be entered granting Cross – Movant the dismissal of Plaintiff’s Complaint” is DENIED; and it is further ORDERED that the cross – motion by Plaintiff “for an order for a default judgment against the defendant Archdiocese of New York’s for refusing to enter an answer and rather bringing a frivolous motion to dismiss and striking the answer of defendant Saint Francis De Sales” is DENIED. 8/18/2022 DATE CHECK ONE: $SIG$ LAURENCE LOVE, J.S.C. CASE DISPOSED GRANTED X X DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 950753/2020 D., J. vs. ARCHDIOCESE OF NEW YORK Motion No. 001 [* 4] NON-FINAL DISPOSITION OTHER REFERENCE Page 4 of 4 4 of 4

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