E.C.Q. v City of New York

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E.C.Q. v City of New York 2023 NY Slip Op 33853(U) October 27, 2023 Supreme Court, New York County Docket Number: Index No. 950327/2021 Judge: Sabrina Kraus 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. 950327/2021 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/27/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. SABRINA KRAUS 57TR Justice ----------------------------------------------------------------- ----------------X E. C. Q., INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 950327/2021 04/20/2023 004 - V - CITY OF NEW YORK, ARCHDIOCESE OF NEW YORK, THE DOMINICAN CONGREGATION OF OUR LADY OF THE ROSARY NK/A DOMINICAN SISTERS OF SPARKILL, ST. AGNES CONVENT & ORPHANAGE DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 74, 75, 76, 77, 78, 79, 85, 86, 87, 88, 89, 90, 91 were read on this motion to/for RENEWAL Plaintiff initiated this action on June 14, 2021 pursuant to the New York Child Victims Act. The Complaint alleges that Plaintiff was sexually assaulted by Nelson Figueroa, John Mendoza, Roland Mendoza, Robert Rosario, and Anthony Asiolla at St. Agnes Convent & Orphanage (the "Facility"), an orphanage within the territory of the Archdiocese of New York ("Archdiocese") that is run by the Dominican Sisters of Sparkhill (the "Order"). The Complaint further alleges that the Archdiocese controls all Catholic activities within its territory, including those of the Order at the Facility. The Archdiocese moved to dismiss based on documentary evidence, asserting that it is separate from and unaffiliated with the Order and the Facility. The court issued a decision and order granting the Archdiocese's motion to dismiss dated January 18, 2023. The court held in pertinent part: 950327/2021 Q., E. C. vs. CITY OF NEW YORK Motion No. 004 [* 1] Page 1 of4 1 of 4 INDEX NO. 950327/2021 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/27/2023 Here, the Archdiocese has shown through documentary evidence that it had no affiliation with St. Agnes nor any of its employees, including the alleged abusers. A deed dated April 30, 1884 establishes that the property at issue is owned by The Dominican Convent of our Lady of the Rosary. Said deed establishes that the Archdiocese did not own the property where the alleged abuse occurred. Likewise, the Dominicans are an independent religious order. Religious orders, such as the Dominicans, which operate within the Archdiocese's geographical territory, are independent from the Archdiocese and have autonomy of life and governance. The Archdiocese does not and does not have any supervisory authority over the Dominicans, including with respect to the day-to-day operations of St. Agnes. The Archdiocese affixes the Affidavit of Roderick Cassidy, Esq., the Associate General Counsel for the Archdiocese of New York, in further support of its motion. That affidavit avers that the Archdiocese did not own the property where the alleged abuse occurred, and that Dominicans are wholly independent from the Archdiocese and that the Archdiocese had no supervisory control over St. Agnes and the alleged abusers. In light of the proffered evidence, the Archdiocese has established that it had no connection to the allegations alleged, and therefore had no duty to plaintiff. Plaintiff moves for leave to renew the motion to dismiss of pursuant to CPLR § 2221 ( e). Plaintiffs motion is based upon the decision of the Appellate Division, First Department in JD. v. Archdiocese ofNew York et al., 183 N.Y.S.3d 851 (1st Dep't 2023). Plaintiff argues this decision represents a change in the law that would change the court's prior determination on the Archdiocese's motion to dismiss in this action. Under CPLR § 2221(e), a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion." 1 A motion for leave to renew is appropriate where a change in the law has occurred, or some new fact comes to the fore not previously known to the Court. See Opalinski v. City of New York, 164 A.D.3d 1354, 1355 (2d Dep't 2018); Sicoli v. Riverside Center Parcel 2 Bit Assocs., LLC, 150 A.D.3d 607, 607 (1st Dep't 2017). A clarification of the decisional law is a sufficient 1 The court is ruling on this motion as Judge Love has been elevated to the Appellate Division and is thus "unable to hear" the motion [CPLR §222l(a)]. 950327/2021 Q., E. C. vs. CITY OF NEW YORK Motion No. 004 [* 2] Page 2 of 4 2 of 4 INDEX NO. 950327/2021 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/27/2023 change in the law to support renewal (see CPLR 2221[e][2]; Roundabout Theatre Co. v. Tishman Realty & Constr. Co., 302 A.D.2d 272). Dinallo v. DAL Elec., 60 A.D.3d 620, 621 (2009). In JD. the First Department reversed the lower court's dismissal of the Archdiocese in an analogous case, holding that the deed and affidavits submitted did not conclusively resolve whether the alleged abuser was an agent of the Archdiocese, or whether the Archdiocese exercised control over the alleged abuser. The Appellate Division also held that the affidavit of the Associate General Counsel for the Archdiocese, also submitted on the original motion herein, did not constitute sufficient documentary evidence for the purposes of a pre-answer CPLR §321 l(a)(l) motion. This holding is directly applicable to the facts in this case where the court relied on a deed and similar affidavit to determine that dismissal was warranted pursuant to CPLR §321 l(a)(l). WHEREFORE it is hereby: ORDERED that Plaintiffs motion seeking leave to renew is granted; and it is further ORDERED that upon renewal the portion of the Court's prior decision dated January 18, 2023, which granted dismissal of this action as against the Archdiocese is hereby vacated; and it is further ORDERED that the prior motion by the Archdiocese seeking dismissal of this action is DENIED in its entirety; and it is further ORDERED that, within 20 days from entry of this order, Plaintiff shall serve a copy of this order with notice of entry on all Defendants, and on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that the Archdiocese is directed to submit an answer within 20 days of service of this decision with notice of entry; and it is further 950327/2021 Q., E. C. vs. CITY OF NEW YORK Motion No. 004 [* 3] Page 3 of 4 3 of 4 INDEX NO. 950327/2021 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/27/2023 ORDERED that such service upon the Clerk 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); and it is further ORDERED that counsel appear for a virtual compliance conference on January 5, 2024 at 12:00 pm. This constitutes the decision and order of the court. 10/27/2023 DATE CHECK ONE: SABRINA KRAUS, J.S.C. NON-FINAL DISPOSITION CASE DISPOSED GRANTED DENIED APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 950327/2021 Q., E. C. vs. CITY OF NEW YORK Motion No. 004 [* 4] GRANTED IN PART OTHER REFERENCE Page4 of 4 4 of 4

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