C.B. v Archdiocese of N.Y.

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C.B. v Archdiocese of N.Y. 2023 NY Slip Op 32956(U) August 25, 2023 Supreme Court, New York County Docket Number: Index No. 950181/2021 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. 950181/2021 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/25/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ALEXANDER M. TISCH Justice ---------------------------------------------- ------------------------------------X C.B., PART 18 INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 950181/2021 11/03/2021 002 - V- ARCHDIOCESE OF NEW YORK, CHURCH OF ST. JOHN THE EVANGELIST, DECISION + ORDER ON MOTION Defendants. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 16, 17, 18, 19, 20, 23,24,26,28, 29, 30, 32, 33 DISMISSAL were read on this motion to/for Upon the foregoing documents, defendant Archdiocese of New York (Archdiocese) moves to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211 (a) (7). Defendant Church of St. John the Evangelist (the Church) (collectively defendants or movants) cross-moves for the same relief on the same grounds. 1 Plaintiff commenced the instant action seeking to recover damages for personal injuries sustained as a result of alleged sexual abuse inflicted by an unnamed ordained Catholic "priest" on multiple occasions from 1975 to 1977, when plaintiff was approximately 10 to 12 years old (NYSCEF Doc No 2, complaint at ,i,r 5, 20-24). The complaint alleges that plaintiff attended and participated in church activities at the Church, served as an altar boy, and that defendants had a special relationship with the plaintiff and the alleged abuser (id. at ,r,i 20, 10-19). 1 Although the cross motion may be considered improper because it seeks relief against a nonmoving party (see Kershaw v Hosp. for Special Surgery. 114 AD3d 75, 87-89 [1st Dept 2013]), the Court notes that the plaintiff is not prejudiced by the defective nature of the cross motion in light of the opportunity to oppose, and did in fact oppose, the motion on the merits (see Sheehan v Marshall, 9 AD3d 403,404 [2d Dept 2004]). 950181/2021 8., C. vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 1] Page 1 of 4 1 of 4 INDEX NO. 950181/2021 NYSCEF DOC . NO. 40 RECEIVED NYSCEF: 08 / 25 / 2023 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 corners 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]). Contrary to defendants' contentions, the Court finds that plaintiffs failure to specifically identify the alleged abuser is not fatally insufficient as to warrant dismissal of the complaint. The complaint alleges that plaintiff was in defendants' custody and/or control and may therefore be owed a duty of care (see generally Mirand v City of New York, 84 NY2d 44, 49-50 [1994]; Sokola v Weinstein, 78 Misc 3d 842, 857, n 10 [Sup Ct, NY County 2023] [citing cases]). "Plaintiffs inability to identify his assailant ... does not preclude him from recovery" (Jones v Hiro Cocktail Lounge, 139 AD3d 608,609 [1st Dept 2016], citing Burgos v Aqueduct Realty ~ ' 92 NY2d 544, 550-51 [1998]). The Court finds this particularly applicable where, as here, a negligence claim is asserted based on a duty of care owing directly from defendants to the plaintiff (see generally Sokola, 78 Misc 3d at 845-846, citing, inter alia, Pulka v Edelman, 40 NY2d 781, 782 [1976]; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222,233 [2001], op after certified question answered, 264 F3d 21 [2d Cir 2001 ]). Further, the complaint asserts that the alleged abuser was under defendants ' supervision, employ and/or control - if true, which this Court is required to assume (see Engelman v Rofe, 950181/2021 8., C. vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 2] Page 2 of 4 2 of 4 INDEX NO. 950181/2021 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/25/2023 194 AD3d 26, 33-34 [1st Dept 2021]), the allegation would be sufficient to give rise to the negligent training, supervision, and/or retention claims, as set forth in the complaint. If not true, because of a lack of an employment relationship or sufficient level of control over the alleged abuser, then the claim would be unsuccessful (see, e.g., Jones v Hiro Cocktail Lounge, 139 AD3d 608, 609 [1st Dept 2016] ["Since the assailant was not identified, plaintiff could not demonstrate that [defendants] knew of the assailant's propensity to commit such attacks"]; see generally Sokola, 78 Misc 3d at 846-84 7 [stating elements for negligent hiring, retention and/or supervision claim, including requisite employment relationship]). However, that fact has yet to be proven or disproven. Indeed, "[t]he manner in which the defendant acquired actual or constructive notice of the alleged abuse is an evidentiary fact, to be proved by the claimant at trial. In a pleading, 'the plaintiff need not allege his [or her] evidence"' (Martinez v State, 215 AD3d 815, 819 [2d Dept 2023], quoting Mellen v Athens Hotel Co., 153 AD 891 [1st Dept 1912]). As plaintiff notes in opposition, the abuser's identity may be revealed through minimal discovery (see generally Doe v Intercontinental Hotels Group, PLC, 193 AD3d 410,411 [1st Dept 2021] [noting such facts may be supplemented in a bill of particulars]; G.T. v Roman Catholic Diocese of Brooklyn, N.Y., 211 AD3d 413, 413-14 [1st Dept 2022] ["While the movant argues that plaintiff fails to allege specific facts that it had notice of the priest's criminal proclivities, at this pre-answer stage of the litigation, such information is in the sole possession and control of the movant"]). Therefore, the Court declines to dismiss the complaint on the basis that the alleged abuser is not identified by name (see, e.g., O'Brien v Archdiocese of New York, index no 950092/2020, NYSCEF Doc No 30 [Sup Ct, NY County August 13, 2021] [Silver, J.] [denying motion to dismiss on similar grounds]). Accordingly, it is hereby ORDERED that the motion and cross-motion are denied; and it is further 950181/2021 B., C. vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 3] Page 3 of4 3 of 4 INDEX NO. 950181/2021 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/25/2023 ORDERED that the Archdiocese shall file and serve an answer to the complaint within (20) days after service of a copy of this order with notice of entry; and it is further ORDERED that the parties shall proceed with discovery pursuant to CMO No. 2, Section IX (B) (1) and submit a first compliance conference order within 60 days from entry of this order. This constitutes the decision and order of the Court. 8/25/2023 DATE CHECK ONE: APPLICATION: CHECK JF APPROPRIATE: ALEXANDER M. TISCH, J.S.C. ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 950181'2021 B., C. vs. ARCHDIOCESE OF NEW YORK Motion No. 002 [* 4] GRANTED IN PART SETTLE ORDER OTHER REFERENCE Page4 of4 4 of 4

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