N.R. v City of New York

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N.R. v City of New York 2023 NY Slip Op 30191(U) January 10, 2023 Supreme Court, New York County Docket Number: Index No. 950198/2019 Judge: Alexander M. Tisch 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. 950198/2019 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 01/11/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 18 PART HON. ALEXANDER M. TISCH Justice -----------------·------------ --------X N. R., INDEX NO. 950198/2019 N/A MOTION DATE Plaintiff, MOTION SEQ. NO. _ _ _ 00_2_ __ - V - CITY OF NEW YORK, A MUNICIPAL CORPORATION, NEW YORK CITY ADMINISTRATION FOR CHILDREN'S SERVICES, THE NEW YORK FOUNDLING, SISTERS OF CHARITY NEW YORK, CATHOLIC CHARITIES COMMUNITY SERVICES ARCHDIOCESE OF NEW YORK, ARCHDIOCESE OF NEW YORK DECISION + ORDER ON MOTION Defendant. ---------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 27, 28,29, 30, 31, 32, 33, 38, 39,40,44,45,46,47 DISMISSAL were read on this motion to/for Upon the foregoing documents, defendants Archdiocese of New York (Archdiocese) and Catholic Charities Community Services Archdiocese of New York (Catholic Charities) move to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) or 3212. Plaintiff's complaint alleges that she was sexually abused by her foster father Vincent Manniello from 1957 to 1971. The complaint alleges that she was placed in foster care by the codefendants City of New York and the Bureau of Child Welfare, a predecessor entity of Administration for Children's Services, which referred her to co-defendant New York Foundling (Foundling) for foster care placement. As it concerns the movants, the complaint alleges the movants were owned, operated, maintained, controlled or employed by Foundling; that movants were in an agency relationship with Foundling such that Foundling acted on behalf of the movants, including on matters related to foster care services and placement of foster care Page 1 of 4 950198/2019 R., N. vs. CITY OF NEW YORK, A Motion No. 002 [* 1] 1 of 4 INDEX NO. 950198/2019 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 01/11/2023 children, and that movants owed plaintiff a duty of care (see generally NYSCEF Doc No 2, complaint at ,r,r 75-85). In determining dismissal under CPLR Rule 3211 (a) (7), the "complaint is to be afforded a liberal construction" (Goldfarb v Schwartz, 26 AD3d 462, 463 [2d Dept 2006)). The "allegations are presumed to be true and accorded every favorable inference" (Godfrey v Spano, 13 NY3d 358, 373 [2009]). "[T]he sole criterion is whether the pleading states a cause of action, and if from its four comers factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268,275 [1977]). Additionally, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). A motion to dismiss a complaint based upon documentary evidence pursuant to CPLR 3211 (a) (1) "may be appropriately granted where the documentary evidence utterly refutes the plaintiffs factual allegation, conclusively establishing a defense as a matter oflaw" (Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994)). In support of their motion to dismiss, defendants submit Foundling's certificates of incorporation, an affidavit from the Archdiocese's General Counsel, Roderick Cassidy, an affidavit from the Associate Executive Director for Catholic Charities, Talia Lockspeiser, and, notably, an affidavit from Foundling's President and Chief Executive Officer, Bill Baccaglini, all of whom allege that the movants are separate and distinct from Foundling, and the mo van ts never owned, supervised, or managed Foundling, nor any of its employees, staff, operations, and no control with placement of children in foster care homes (see NYSCEF Doc Nos 28-30). The 950198/2019 R., N. vs. CITY OF NEW YORK, A Motion No. 002 [* 2] Page 2 of 4 2 of 4 INDEX NO. 950198/2019 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 01/11/2023 Court finds that the evidence is sufficient to meet its prima facie burden with respect to all causes of action as against the movants. Plaintiffs argument in opposition, that the Catholic Charities admittedly "offer[s] resources and support" by "e.g., issuing grants, providing advice and guidance" to Foundling, as one of ninety (90) other agencies in the "federation" of the Catholic Charities, is insufficient to withstand the motion to dismiss as it concerns these movants' relationship with Foundling (see, e.g., Dunn v Catholic Home Bur. for Dependent Children, 142 Misc 2d 316, 319-320 [Sup Ct, NY County 1989]; see also Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of New York, Inc., 32 AD3d 218,223 [1st Dept 2006]). Consequently, the Court finds that the complaint fails to state a claim in the absence of a cognizable duty upon the part of the movant. Accordingly, it is hereby ORDERED that the motion of defendants ARCHDIOCESE OF NEW YORK and CATHOLIC CHARITIES COMMUNITY SERVICES ARCHDIOCESE OF NEW YORK to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General 950198/2019 R., N. vs. CITY OF NEW YORK, A Motion No. 002 [* 3] Page 3 of 4 3 of 4 INDEX NO. 950198/2019 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 01/11/2023 Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that service of this order upon the Clerk of the Court and/or the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (see section J). 1 This constitutes the decision and order of the Court. ALEXrtd 1/10/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: 1 CASE DISPOSED ::;;L:E:RDER • NON-FINAL DISPOSITION GRANTED IN PART DENIED INCLUDES TRANSFER/REASSIGN SUBMIT ORDER FIDUCIARY APPOINTMENT • • OTHER REFERENCE The Protocol is accessible at the "E-Filing" page on the court's website: www.nycourts.gov/supctmanh. 950198/2019 R., N. vs. CITY OF NEW YORK, A Motion No. 002 [* 4] M. TISCH, J.S.C. Page 4 of 4 4 of 4

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