E.P. v Archdiocese of N.Y.

[*1] E.P. v Archdiocese of N.Y. 2023 NY Slip Op 51071(U) Decided on September 25, 2023 Supreme Court, Bronx County Soto, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 25, 2023
Supreme Court, Bronx County

E.P., Plaintiff(s),

against

Archdiocese of New York, MARIST BROTHERS OF THE SCHOOLS, INC. a/k/a MARIST BROTHERS UNITED STATES PROVINCE and MOUNT SAINT MICHAEL ACADEMY, Defendant(s).



Index No. 70149/2020E



Linc Leder

Slater Slater Schulman, LLP

Plaintiff's Attorneys

445 Broadhollow Rd Ste 419, Melville, NY 11747

(631) 420-9300

Michael Zilberg

CERTAIN & ZILBERG, PLLC

Plaintiff's Attorneys

488 Madison Ave Fl 20, New York, NY 10022

(212) 687-7800

Philip Papiasvili

SLATER SLATER SCHULMAN LLP

Plaintiff's Attorneys

488 Madison Ave Fl 20, New York, NY 10022

(212) 481-7400

Kevin Gunther

Slater Slater Schulman

Plaintiff's Attorneys

445 Broadhollow Road Suite 419, Melville, NY 11747

(631)420-9200

Joanne Filiberti

LEAHEY AND JOHNSON

Defendant Archdiocese of New York

120 Wall Street Suite 2220, New York, NY 10005

(212) 269-7308

Christopher Delamere Clarke LEAHEY & JOHNSON, PC

Defendant Archdiocese of New York

120 Wall St, New York, NY 10005

(212) 269-7308

Philip Carmine Semprevivo

Biedermann Hoenig Semprevivo

Defendant MARIST BROTHERS OF THE SCHOOLS, INC., and MOUNT SAINT MICHAEL ACADEMY

One Grand Central Place 60 E. 42nd St. 36th F, New York, NY 10165

(646)218-7621

Meishin Riccardulli

BIEDERMANN HOENIG SEMPREVIVO

Defendant MARIST BROTHERS OF THE SCHOOLS, INC., and MOUNT SAINT MICHAEL ACADEMY

60 E 42nd St, 36th Floor, New York, NY 10165

(646) 218-7560
Marissa Soto, J.

The following e-filed on NYSCEF papers read herein:

Papers NYSCEF Doc. No.'s/ No.

Notice of Motion and Affidavits/Affirmations Annexed: 9 - 20

Opposition Affirmation/ Cross Motions: 24 - 25

Reply Affirmation: 27 - 29

Defendant Archdiocese of New York (hereinafter the "Archdiocese") moves for an order to (i) dismiss the Complaint of E.P. (hereinafter "Plaintiff"), pursuant to CPLR §§3211(a)(1), 3211(a)(7), or alternatively granting the Archdiocese summary judgment, pursuant to CPLR §3212, (ii) directing the Clerk to enter judgment in favor of the Archdiocese, (iii) for any such further relief as this Court deems just and proper. Plaintiff opposes the motion.

This action was commenced by summons and complaint, dated November 12, 2020 at NYSCEF Doc. No. 1 (hereinafter the "Complaint"). The Complaint sets forth that when the Plaintiff was approximately 15-16 years old, approximately 1984 to 1985, and while a student at Mount Saint Michael Academy (hereinafter the "School"), he was sexually abused by Brother Lee. Complaint ¶69-71. The Complaint alleges that Brother Lee was a priest who was under the employ, supervision and control of the Archdiocese, the School and the Marist Brothers of the Schools, Inc. a/k/a Marist Brothers United States Province (hereinafter "Marist Brothers"). Complaint ¶66-68. The Complaint further states that when the Plaintiff was 15 years old, approximately in 1984, he participated in youth activities at the School and received educational and religious instructions from Brother Lee where Brother Lee sexually assaulted, sexually abused and/or had sexual contact with Plaintiff. Complaint ¶¶53, 67.

The Plaintiff alleges that he sustained emotional and physical injuries caused by the Defendants and brought this action under the CPLR § 214-g, also known as the Child Victims Act (hereinafter "CVA") against all the Defendants with the following three causes of action: (1) [*2]negligence; (2) negligent supervision, retention, supervision, and/or direction and (3) breach of statutory duty to report abuse under Social Services Law §§413 and 420.

The Archdiocese argues that this Court should dismiss Plaintiff's Complaint because documentary evidence demonstrates that the Archdiocese did not own, manage or operate Mount Saint Michael Academy. Moreover, movant argues that Mount St. Michael Academy has no connection to the Archdiocese of New York and that Mount Saint Michael Academy was and is wholly independent from the Archdiocese and was not maintained, controlled or operated by the Archdiocese.

DISCUSSION

It is well settled law that complaints are to be liberally construed. CPLR §3026. "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." 34-06 73, LLC v. Seneca Ins. Co., 39 NY3d 44, 51 (2022) citing Sassi v. Mobile Life Support Servs., Inc., 37 NY3d 236, 239 (2021); accord Chanko v. American Broadcasting Cos. Inc., 27 NY3d 46, 52 (2016); Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); Campaign for Fiscal Equity v. State of New York, 86 NY2d 307, 318, (1995); Leon v Martinez, 84 NY2d 83, 87-88, (1994).

On a motion to dismiss it is not for the Court to decide the cause of action on the merits. In considering the sufficiency of a pleading subject to a motion to dismiss for failure to state a cause of action under CPLR §3211 (a) (7), our well-settled task is to determine whether, "accepting as true the factual averments of the complaint, plaintiff can succeed upon any reasonable view of the facts stated" ( People v New York City Tr. Auth., 59 NY2d 343, 348; see, Jiggetts v Grinker, 75 NY2d 411, 414-415; 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509). We are required to accord plaintiffs the benefit of all favorable inferences which may be drawn from their pleading, without expressing our opinion as to whether they can ultimately establish the truth of their allegations before the trier of fact (see, 219 Broadway, supra, at 509; Constructors v Chase Manhattan Bank, 46 NY2d 459; Morone v Morone, 50 NY2d 481). Only recently we recognized the right of plaintiffs "to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets a minimal standard necessary to resist dismissal of a complaint." (Armstrong v Simon & Schuster, 85 NY2d 373, 379; see also, Leon v Martinez, 84 NY2d 83, 87-88, supra (court is to "determine only whether the facts as alleged fit within any cognizable legal theory".) If we determine that plaintiffs are entitled to relief on any reasonable view of the facts stated, our inquiry is complete and we must declare the complaint legally sufficient (see, 219 Broadway, supra).

Campaign for Fiscal Equity v. State, 86 NY2d 307, 318 (1995). 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) citing Mass v. Cornell Univ., 94 NY2d 87, 91 (1999); 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 1996), lv denied 89 NY2d 802 (1996).

Pursuant to CPLR §3211(a)(1) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence. Under CPLR§3211(a)(1), a dismissal is warranted only if "the documentary evidence [*3]utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); see Leon v Martinez, 84 NY2d 83, 88 (1994). "A paper will qualify as 'documentary evidence' only if it satisfies the following criteria: (1) it is 'unambiguous'; (2) it is of 'undisputed authenticity'; and (3) its contents are 'essentially undeniable'." VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 AD3d 189, 193A (1st Dept 2019) (citing Fontanetta v John Doe 1, 73 AD3d 78, 86, 87, 898 NYS2d 569 [2d Dept 2010], citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 at 21-22 [2005 ed]). "A court may not dismiss a complaint based on documentary evidence unless 'the factual allegations are definitively contradicted by the evidence or a defense is conclusively established'." Id. at 193. "In other words, the documents relied upon must 'definitely dispose of [the] plaintiff's claim'" Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 (1st Dept 2014) (citing Blonder & Co., Inc. v Citibank, N.A., 28 AD3d 180, 182, 808 NYS2d 214 [1st Dept 2006]). Factual affidavits do not constitute documentary evidence within the meaning of the statute. Id. at 438 (citing Flowers v 73rd Townhouse LLC, 99 AD3d 431, 431, 951 NYS2d 393 [1st Dept 2012]).

Pursuant to CPLR §3211(a)(7) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. Maroutian v. Fuchs, 124 AD3d 541, 541 (1st Dept 2015). On a motion to dismiss pursuant to CPLR §3211(a)(7) the complaint is afforded liberal construction. Landmark Ventures, Inc., v. InSightec, Ltd., 179 AD3d 493, 494-495 (1st Dept 2020). "Whether a plaintiff can ultimately establish [his or her] 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). "Upon the submission of evidentiary material in support of such a motion, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate." Klostermeier v. City of Port Jervis, 200 AD3d 866, 867-868 (2d Dept 2021) (internal quotation marks omitted); see Yan Ping Xu v. Van Zwienen, 212 AD3d 872, 874 (2d Dept 2023); Phillips, 152 AD3d at 807-808.

In support of its motion, the Defendant submits inter alia the following (i) a copy of the Summons of Complaint, (ii) Case Management Order No. 2 (hereinafter the "CMO 2"), (iii) a copy of the Defendant's letter to Plaintiff's counsel, dated January 15, 2021 along with a proposed stipulation of discontinuance, (iv) a copy of the publicly available certified property deeds for the location of the alleged abuse, (v) copies of the Certificates of Incorporation of the Marist Brothers, (vi) a copy of the a Certificate of Report of Existence, and (vii) a copy of a previous Decision and Order for the case styled as Maria Plaza, v. St Helena's Parochial Elementary et al, Index no. 28063/2017E. The Archdiocese also has submitted the Affidavit from Roderick J. Cassidy, Esq., an associate general counsel of the Archdiocese of New York, who asserts, based on his review of the Archdiocese's records and files and "personal knowledge" that, although the School Mount Saint Michael Academy was located within the geographical boundaries of the Archdiocese, the Archdiocese did not own, operate or control the School or employ, supervise, or train its staff.

Analogous to the cases in the Appellate Division, First Department of J.A.F. v. Roman Catholic Archdiocese of NY, and J.D. v. Archdiocese of NY, where the court found insufficient proof to warrant dismissal of similar claims against the Archdiocese under [*4]CPLR §3211, this Court determines that the Archdiocese's proffered evidence in support of the instant motion are insufficient. J.A.F. v Roman Catholic Archdiocese of NY, 216 AD3d at 454-455 and J.D. v Archdiocese of NY, 214 AD3d 561, 562 (1st Dept 2023). The Appellate Division of theFirst Department has stated

. . .although the deeds for the property upon which defendant [school] is located and the Certificates of Incorporation for defendant [independent religious order] constitute documentary evidence for the purposes of a CPLR §3211(a)(1) inquiry, see generally Yoshiharu Igarashi v. Shohaku Higashi, 289 AD2d 128 (1st Dept 2001), they do not conclusively resolve the allegations in the complaint that plaintiff's alleged abuser was an agent of the Archdiocese, that the Archdiocese exercised supervision and control over [alleged abuser's] appointment or employ, and that there were special relationships between plaintiff, the Archdiocese, and [alleged abuser].

J.D. v. The Archdiocese of New York, 214 AD3d at 562; Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267 (1st Dept 2004).

The Affidavit of Roderick J. Cassidy, Esq submitted by the Archdiocese (the "Affidavit"), which relies on a review of documents not before the Court, is self serving, conclusory and does not constitute documentary evidence. See Johnson v Asberry, 190 AD3d 491, 492 (1st Dept 2021) (Affidavits are not documentary evidence); J.D. v. Archdiocese of NY, 214 AD3d 561 (1st Dept 2023). The Affidavit merely serves as a preview of the denial of the facts set forth in the Complaint that would otherwise appear in an answer. The Complaint alleges a fact — that the Archdiocese had a role in the subject priest's assignment, retention, and discipline. The Affidavit denies that allegation. The Court finds it has no probative value for purposes of a pre-answer motion to dismiss pursuant to CPLR §3211(a)(1). J.D. v. Archdiocese of NY, 214 AD3d 561, 561; Johnson v. Asberry, 190 AD3d 491; Flowers v. 73rd Townhouse LLC, 99 AD3d 431 (1st Dept 2012).

Furthermore, this Court determines that the deed and the Certificates of Incorporation, for the purpose of a CPLR §3211(a)(1) inquiry, on their own, fail to "utterly refute" the Complaint's allegations that Brother Lee was an employee or agent of the Archdiocese, that the Archdiocese supervised or controlled his appointment and employ, or that the other Defendants were agents of the Archdiocese. See J.A.F. v Roman Catholic Archdiocese of NY, 216 AD3d 454, 454-455 (1st Dept 2023); J.D. v. Archdiocese of NY, 214 AD3d 561, *1 (1st Dept 2023). The Archdiocese's submitted evidence does not conclusively resolve the allegations in the Complaint that the Plaintiff's alleged abuser, Brother Lee, whether Brother Lee was an agent of the Archdiocese, whether the Archdiocese exercised supervision or control over Brother Lee, whether or not there was a special relationship between the Plaintiff, Archdiocese and Brother Lee. Id. It is unclear how the subject priest, Brother Lee, was ordained, how he was retained, selected, or subject to discipline during the relevant period.

With respect to the Archdiocese's alternative request to consider its pre-answer motion for summary judgment, pursuant CPLR §3212, this Court denies said request. See Matter of Gorelick v. Suffolk County Comptroller's Off., 186 AD3d 1518, 1519 (2d Dept 2020); Ferrera v. City of New York, 164 AD3d 754, 756 (2d Dept 2018). The Archdiocese argues that it is entitled to dismissal by summary judgment on the ground that it owed no duty to plaintiff because the Archdiocese does not own, control or supervise the School, the Marists Brothers or their employees or agents. Under the circumstances here, where the proceeding is still at its earliest [*5]stages and Plaintiff has not had an opportunity to conduct discovery, the Court declines to convert the pre-answer motion to dismiss to one for summary judgment. See Henn v. City of New York, 164 AD3d 766, 767 (2d Dept 2018); Belling v. City of Long Beach, 168 AD3d 900 (2d Dept 2019; SPI Communications v. WTZA-TV Assoc. Ltd. Partnership, 229 AD2d 644, 645 (3d Dept 1996). Even if this Court were inclined to deem the motion one for summary judgment, given this Court's conclusion that the affidavit relied upon by the Archdiocese lacks probative value, this Court would find that the Archdiocese has failed to demonstrate its prima facie entitlement to summary judgment, and would deny the motion regardless of the sufficiency of Plaintiff's opposition papers. See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Therefore, the Archdiocese's motion for dismissal of the Plaintiff's Complaint is denied in its entirety.

The Court has considered all the remaining contentions, including the reply papers filed by the Archdiocese and finds that they do not warrant a contrary result and finds them unavailing.

CONCLUSION

Accordingly, it is hereby

ORDERED that Archdiocese's motion is denied; it is further

ORDERED that the parties shall proceed with discovery; and it is further

ORDERED that the Archdiocese shall serve a copy of this order with notice of entry within thirty (30) days upon all parties.

This constitutes the decision and order of the Court.

Dated: September 25, 2023

____________________________

HON. MARISSA SOTO, J.S.C.