A. L. v Episcopal Diocese of N.Y.

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A. L. v Episcopal Diocese of N.Y. 2022 NY Slip Op 33003(U) September 7, 2022 Supreme Court, New York County Docket Number: Index No. 950769/2021 Judge: Laurence L. 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. 950769/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/07/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LAURENCE L. LOVE Justice ---------------------------------------------------------------------------------X A. L., INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 63M 950769/2021 09/01/2022 003 -vTHE EPISCOPAL DIOCESE OF NEW YORK, CHRIST'S CHURCH DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 40, 41, 42, 43, 44, 46, 47 were read on this motion to/for DISMISS . Upon the foregoing documents, the decision on defendant, Christ’s Church of Rye (“Christ’s Church”) motion to dismiss pursuant to CPLR 3211(a)(7) is as follows: Plaintiffs filed their Second Amended Complaint on May 20, 2022, alleging that Felix McGuire, (“McGuire”), the Organist and/or piano teacher at Christ’s Church sexually abused plaintiff A.L. between 1973 and 1976 and sexually abused plaintiff R.C. between 1967 and 1977. Plaintiff’s contend that defendants knew or should have known that abuse of children was occurring by McGuire , that he had a reputation for same and that he was ultimately terminated for widespread abuse of children. Arising from same, plaintiff pleads causes of action of 1) Negligence and 2) Negligent Hiring, Retention and Supervision of Employees as against both defendants by both plaintiffs, resulting in eight causes of action. Defendant. Christ’s Church seeks dismissal of this action pursuant CPLR §3211(a)(7) arguing that plaintiff has failed to plead its negligence claims. In determining a motion to dismiss a complaint pursuant to CPLR §3211(a)(7), a court's role is deciding “whether the pleading states 950769/2021 L., A. vs. THE EPISCOPAL DIOCESE OF NEW YORK Motion No. 003 [* 1] 1 of 5 Page 1 of 5 INDEX NO. 950769/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/07/2022 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” (African Diaspora Maritime Corp. v Golden Gate Yacht Club, 109 AD3d 204 [1st Dept 2013]; Siegmund Strauss, Inc. v East 149th Realty Corp., 104 AD3d 401 [1st Dept 2013]). The standard on a motion to dismiss a pleading for failure to state a cause of action is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v Thorn Rock Realty Co., 163 AD2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v Blumberg, 242 AD2d 205, 660 NYS2d 726 [1st Dept 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see CPLR §3026; Siegmund Strauss, Inc., 104 AD3d 401, supra). In deciding such a motion, the court must “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 into any cognizable legal theory” (Siegmund Strauss, Inc., 104 AD3d 401, supra; Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not” presumed to be true or accorded every favorable inference (David v Hack, 97 AD3d 437 [1st Dept 2012]; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], aff’d 94 NY2d 659 [2000]; Kliebert v McKoan, 228 AD2d 232 [1st Dept], lv denied 89 NY2d 802 [1996], and the criterion becomes “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]; see also Leon, 84 NY2d at 88, supra; Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [1st 950769/2021 L., A. vs. THE EPISCOPAL DIOCESE OF NEW YORK Motion No. 003 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 950769/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/07/2022 Dept 2001]; “In deciding such a pre-answer motion, the court is not authorized to assess the relative merits of the complaint’s allegations against the defendant’s contrary assertions or to determine whether or not plaintiff has produced evidence to support his claims” (Salles v Chase Manhattan Bank, 300 AD2d 226, 228 [1st Dept 2002]). Rather, where a motion to dismiss is directed at the sufficiency of a complaint, the plaintiff is afforded the benefit of a liberal construction of the pleadings: “The scope of a court's inquiry on a motion to dismiss under CPLR §3211 is narrowly circumscribed” (1199 Housing Corp. v International Fidelity Ins. Co., NYLJ January 18, 2005, p. 26 col.4, citing P.T. Bank Central Asia v Chinese Am. Bank, 301 AD2d 373, 375 [1st Dept 2003]), the object being “to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action” (id. at 376; see Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]). It is the movant who has the burden to demonstrate that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action (see Leon, 84 NY2d at 87-88, supra; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]); Salles v. Chase Manhattan Bank, 300 AD2d 226, 228 [1st Dept 2002]). Moving Defendants contend that plaintiff has failed to sufficiently plead a separate duty of care owed beyond its duty to use reasonable care in hiring, retaining, supervising and training employees and do not owe a separate general duty to prevent conduct by its subordinate that is illegal, outside of its control, and unforeseeable (see Kenneth R. v R.C. Diocese of Brooklyn, 229 AD2d 159, 163 [2d Dept 1997]. Moving Defendants further contend that “plaintiff fails to plead the essential elements of a negligent training, retention or supervision claim. In addition to the standard elements of negligence, Plaintiff must show that the defendant "knew, or should have known, of the [subordinate's] propensity for the sort of conduct which caused the injury," and that 950769/2021 L., A. vs. THE EPISCOPAL DIOCESE OF NEW YORK Motion No. 003 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 950769/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/07/2022 the "tort was committed on the employer's premises with the employer's chattels" (see Ehrens v Lutheran Church, 385 F3d 232, 235 [2d Cir 2004].” Moving Defendants further contend that Plaintiff’s conclusory allegations of notice are not sufficient to state a cause of action. However, contrary to these assertions “[t]here is no statutory requirement that causes of action sounding in negligent hiring, negligent retention, or negligent supervision be pleaded with specificity” (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2d Dept 1997]). Instead, 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” (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). “A necessary element of a cause of action alleging negligent retention or negligent supervision is that the ‘employer knew or should have known of the employee’s propensity for the conduct which caused the injury’” (Bumpus v New York City Transit Authority, 47 AD3d 653 [2d Dept 2008]). Here, plaintiff alleges that the McGuire was known as an abuser throughout the community at the time of the alleged acts and was allowed access to children despite this reputation, and further alleges that “The vestry board of the Diocese and/or the Church was aware that McGuire sexually abused children including prior to and during the sexual abuse of Plaintiffs.” Further, the amended complaint is specific as to the abuse that allegedly occurred, the time period during which it occurred, and the obviousness of its nature (contra Shor v. Touch-N-Go Farms, Inc., 89 AD3d 830, 831 [2d Dept. 2011][generalized claim that defendant “knew the risk of sexual abuse of minor parishioners by priests and other staff” is insufficient (Shor v. Touch-N-Go Farms, Inc., 89 AD3d 830, 831 [2d Dept. 2011]). Moreover, discovery will be necessary before the parties’ significant disputes on the issue of notice can be evaluated. 950769/2021 L., A. vs. THE EPISCOPAL DIOCESE OF NEW YORK Motion No. 003 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 950769/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 09/07/2022 ORDERED that defendant, Christ’s Church of Rye’s motion seeking dismissal of this action is DENIED in its entirety. 9/7/2022 DATE CHECK ONE: $SIG$ LAURENCE L. 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 950769/2021 L., A. vs. THE EPISCOPAL DIOCESE OF NEW YORK Motion No. 003 [* 5] NON-FINAL DISPOSITION 5 of 5 • • OTHER REFERENCE Page 5 of 5

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