ARK246 DOE v Archdiocese of N.Y.

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ARK246 DOE v Archdiocese of N.Y. 2022 NY Slip Op 33522(U) October 6, 2022 Supreme Court, New York County Docket Number: Index No. 950328/2020 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. 950328/2020 FILED: NEW YORK COUNTY CLERK 10/11/2022 12:57 PM NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/11/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. LAURENCE L. LOVE Justice ---------------------------------------------------------------------------------X ARK246 DOE, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 63M 950328/2020 03/16/2021 002 -vARCHDIOCESE OF NEW YORK, JESUIT FATHERS AND BROTHERS, FORDHAM UNIVERSITY, JOHN XXIII ECUMENICAL CENTER, JESUIT FATHERS AND BROTHERS A/K/A SOCIETY OF JESUS D/B/A U.S.A. MIDWEST PROVINCE OF THE SOCIETY OF JESUS F/K/A CHICAGO PROVINCE OF THE SOCIETY OF JESUS, DOES 1-5 WHOSE IDENTITIES ARE UNKNOWN TO PLAINTIFF DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 19, 20, 21, 22, 23, 24, 37, 51, 52, 53, 54, 57, 58, 59, 60, 61, 62, 87 were read on this motion to/for DISMISS . Upon the foregoing documents, it is The following reads on a pre – answer motion to dismiss the complaint, per CPLR 3211(a)(5) – statute of limitations, and CPLR 3211(a)(7) – failure to state a cause of action, by Defendants – The USA Northeast Province of the Society of Jesus, Inc. and The New York Province of the Society of Jesus (“Jesuits”). A previous September 22, 2022 Order dismissed the complaint against Archdiocese of New York and Fordham University with leave to serve and file an amended complaint (see NYSCEF Doc. No. 99). Plaintiff alleges abuse per the Child Victims Act, CPLR 214-g, with causes of action for (i) negligence, (ii) negligent training and supervision, and (iii) negligent retention. 950328/2020 DOE, ARK246 vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 1] 1 of 5 Page 1 of 5 FILED: NEW YORK COUNTY CLERK 10/11/2022 12:57 PM NYSCEF DOC. NO. 102 INDEX NO. 950328/2020 RECEIVED NYSCEF: 10/11/2022 “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]). Defendants contend that the CVA is barred by the statute of limitations and dismissal is warranted per CPLR 3211(a)(5). The CVA is a claim revival statute that revives abuse claims of childhood survivors that were time – barred under the existing statute of limitations. “A claim – revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice” (see World Trade Center v. Battery Park City Authority, 30 N.Y.3d 377, 400 [2017]). 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 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 950328/2020 DOE, ARK246 vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 2] 2 of 5 Page 2 of 5 FILED: NEW YORK COUNTY CLERK 10/11/2022 12:57 PM NYSCEF DOC. NO. 102 INDEX NO. 950328/2020 RECEIVED NYSCEF: 10/11/2022 the conduct which caused the injury’” (Bumpus v New York City Transit Authority, 47 AD3d 653 [2d Dept 2008]). “[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]). “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]). Defendants’ affirmation in support states, “[t]he complaint asserts that Father […] ‘engaged in unpermitted sexual contact with Plaintiff’ but fails to allege where such conduct occurred, or more specifically, that such conduct occurred in New York” (see NYSCEF Doc. No. 20 Par. 28). Defendants continue, “the Complaint fails to sufficiently plead any cause of action sounding in negligence as against the [Jesuits]. “[A]bsent from the complaint are any facts for the Court to infer that Fr. […] was employed by the [Jesuits] or that the [Jesuits] owed plaintiff any duty for the intention tortious conduct of a non – member Roman Catholic Cleric” (see NYSCEF Doc. No. 20 Pars. 32 – 33). Plaintiff’s opposition states, “[t]he Complaint further alleges that Fr. […], was … employed by the Archdiocese of New York, the Jesuits, Fordham University in the Bronx, New York, and John XXIII Ecumenical Center in the Bronx, New York. Moreover, the Complaint alleges that all four Defendants have their principal places of business in New York. These allegations sufficiently state that the wrongful conduct occurred in the State of New York” (see NYSCEF Doc. No. 54 P. 6). 950328/2020 DOE, ARK246 vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 3] 3 of 5 Page 3 of 5 FILED: NEW YORK COUNTY CLERK 10/11/2022 12:57 PM NYSCEF DOC. NO. 102 INDEX NO. 950328/2020 RECEIVED NYSCEF: 10/11/2022 Plaintiff cites Hamilton, “where there is a relationship either between defendant and third – party tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others” (see Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 [2001]). “Here, the complaint alleges that the Jesuits had a special relationship with Fr. […] which required the Jesuits to control Fr. […]’s conduct” (see NYSCEF Doc. No. 54 P. 13). Jesuits Reply states, “[a]lleging that the ‘unpermitted sexual contact’ occurred in the State of New York is relevant in determining if a claim has been properly commenced under the [Child Victims Act] […].” (see NYSCEF Doc. No. 57 Pars. 15). Jesuits continue, “this Court has previously held in granting dismissal in S.H. v. Diocese of Brooklyn, Index 517999/2019 (Sup. Ct. Kings. Cty., August 14, 2020), that claims of abuse that occurred outside of the State of New York are not subject to revival under the [Child Victims Act] based on a plain reading of the statute and consideration of the New York State Legislature’s intent” (see NYSCEF Doc. No. 57 Par. 17). In this Court’s decisions on the issue of sufficient pleading in Child Victims Act cases, the Court has taken a very liberal stance on the issue of whether a negligence cause of action has been sufficiently pled. However, the subject complaint is utterly devoid of any information as to how plaintiff came into contact with Fr. Myers. Plaintiff further fails to detail where the alleged abuse occurred and makes no differentiation between the various defendants. Specifically, it is unclear how plaintiff was present at Fordham University and/or the John XXIII Ecumenical Center. It is unclear whether plaintiff was a student, a parishioner or some other class of persons. While the complaint does allege that “Defendants placed Fr. Meyers in positions where he had access to and 950328/2020 DOE, ARK246 vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 950328/2020 FILED: NEW YORK COUNTY CLERK 10/11/2022 12:57 PM NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/11/2022 worked with children as an integral part of his work” there is no indication what that work was or where he was assigned. As such, plaintiff has failed to state a cause of action. Defendant – Jesuits have shown that there was no duty owed in the negligence element, and that the abuse did not occur in New York. ORDERED that the Defendants’ motions to dismiss are GRANTED and the complaint is dismissed; and it is further ORDERED that plaintiff is granted leave to serve and file an amended complaint so as to replead this action in its entirety within 20 days after service on plaintiff's attorney of a copy of this order with notice of entry; and it is further ORDERED that, in the event that plaintiff fails to serve and file an amended complaint in conformity herewith within such time, leave to replead shall be deemed denied, and the Clerk of the Court, upon service upon him (60 Centre Street, Room 141B) of a copy of this order with notice of entry and an affirmation/affidavit by defendant’s counsel attesting to such noncompliance, is directed to enter judgment dismissing the action, with prejudice, and with costs and disbursements to the defendant as taxed by the Clerk; and it is further ORDERED that such service upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh)]. L£ _, - 10/6/2022 DATE $SIG$ LAURENCE L. LOVE, J.S.C. CHECK ONE: CASE DISPOSED X GRANTED • DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 950328/2020 DOE, ARK246 vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 5] ~ X 5 of 5 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT • • OTHER REFERENCE Page 5 of 5

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