D.M. v. The Domestic & Foreign Missionary Soc'y of The Protestant Episcopal Church
| Docket Number | Index No. 514360/2020 |
| Decision Date | 30 May 2023 |
| Citation | 2023 NY Slip Op 31863 (U) |
| Parties | D.M., Plaintiff, v. THE DOMESTIC AND FOREIGN MISSIONARY SOCIETY OF THE PROTESTANT EPISCOPAL CHURCH a/k/a THE EPISCOPAL CHURCH, EPISCOPAL DIOCESE OF LONG ISLAND, THE CHURCH OF THE HOLY APOSTLES, and THE CHURCH OF ATONEMENT, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
The following e-filed papers read herein: - NYSEF Doc. Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and - 58-59, 62-63, 66, Affidavits (Affirmations) Annexed - 108-109, 113, 116, 121-122
Affidavits/ Affirmations in Reply - 97, 128-130
Other Papers:_
Upon the foregoing papers, defendant Episcopal Diocese of Long Island (Diocese) moves for an order, pursuant to CPLR 3211 (a) (7), dismissing plaintiff D.M.'s amended complaint as against it (motion sequence number 4). Defendant the Domestic and Foreign Missionary Society of the Protestant Episcopal Church (DFMS) moves for an order, pursuant to CPLR 3211 (a) (1) and (a) (7), dismissing the amended complaint against it (motion sequence number 5).[1] Plaintiff D.M. moves for an order, pursuant to CPLR 306b, extending plaintiff s time to serve process on defendant The Church of the Holy Apostles (Holy Apostles) (motion sequence number 6). Holy Apostles cross-moves for an order, pursuant to CPLR 203 (b) and 306-b dismissing the action as against it (motion sequence number 7).
The Diocese's motion (motion sequence number 4) is denied.
DFMS's motion (motion sequence number 5) is granted and the amended complaint is dismissed as against DFMS.
Plaintiffs motion (motion sequence number 6) is granted, plaintiffs time to serve Holy Apostles is extended, and the service of the amended complaint on Holy Apostles on July 28, 2022, is deemed timely, nunc pro tunc, pursuant to the extension.
Holy Apostles' cross motion (motion sequence number 7) is denied.
In view of the foregoing, the action is severed as against DFMS and the caption is amended to read as follows:
In this revival action based on the Child Victims Act (CVA) (CPLR 214-g; L 2019, ch 11, § 3, as amended by L 2020. ch 130 § 1). plaintiff D.M.[2] alleges that, while he served as an alter boy at the Church of Atonement (Atonement) and later at Holy Apostles, he was sexually abused by Father Timothy Campbell Smith and Father Lavaroni, Episcopal priests who performed ministerial duties at Atonement and Holy Apostles. Atonement and Holy Apostles were parishes located in the Long Island Diocese at the time of the alleged abuse, and the DFMS served as the corporate entity for the Episcopal Church, its unincorporated parent.
In the amended complaint, plaintiff alleges that this abuse began while he served as an alter boy at Atonement in 1965, when plaintiff was approximately 10 years old. While at Atonement. Father Smith allegedly committed several acts of sexual assault and abuse against plaintiff including the fondling plaintiff s genitals, forcing plaintiff to perform oral sex and the sodomy and rape of plaintiff. Plaintiff represents that he reported this abuse to Father Lavaroni, but that the abuse by Father Smith continued on numerous occasions thereafter. Indeed, after reporting this abuse to Father Lavaroni, Father Lavaroni himself allegedly began to sexually abuse plaintiff by performing acts involving the same kinds of abuse as Father Smith had engaged in. Father Smith and Father Lavaroni were thereafter transferred to Holy Apostles and plaintiffs family then began attending church at Holy Apostles, where plaintiff also served as an alter boy. Father Smith and Father Lavaroni's abuse of plaintiff continued while plaintiff was an alter boy at Holy Apostles until plaintiff was 12 years old.
The court turns first to the respective motions by the Diocese and the DFMS made pursuant to CPLR 3211 (a) (1) and/or (a) (7). Under CPLR 3211 (a) (1). a dismissal is warranted only if "the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y.. 98 N.Y.2d 314, 326 [2002]; see Leon v Martinez. 84 N.Y.2d 83, 88 [1994]). "To constitute documentary evidence, the evidence must be 'unambiguous, authentic, and undeniable'" (Phillips v Taco Bell Corp., 152 A.D.3d 806, 807 [2017], quoting Granada Condominium III Assn, v Palomino, 78 A.D.3d 996, 997 [2010]). "such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable" (Phillips v Taco Bell Corp., 152 A.D.3d at 807). "Conversely, letters, emails, and . . . affidavits, do not meet the requirements for documentary evidence" (id.).
On a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint for failure to state a cause of action, a court must "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" (Leon, 84 N.Y.2d at 8788; see Boyle v North Salem Cent. Sch. Dist., 208 A.D.3d 744, 745 [2d Dept 2022]; Doe v Enlarged City Sch. Dist. of Middletown, 195 A.D.3d 595, 596 [2d Dept 2021]). "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 N.Y.3d 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" (. .
Although plaintiff has identified his claim against defendants simply as a negligence cause of action, he has pleaded facts and alleged duties akin to those at issue in a negligent supervision of a child cause of action and in a negligent hiring, supervision and retention cause of action (see Davila v Orange County, 215 A.D.3d 632, 634-635 [2d Dept 2023]; see also Willis v Young Men's Christian Assn, of Amsterdam, 28 N.Y.2d 375, 379 [1971]). Under each such cause of action. liability turns on whether the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see Davila, 215 A.D.3d at 634-635; Belcastro v Roman Catholic Diocese of Brooklyn, N. Y., 213 A.D.3d 800, 802 [2d Dept 2023]; Novak v Sisters of the Heart of Mary, 210 A.D.3d 1104, 1105 [2d Dept 2022]; Shu Yuan Huang v St. John's Evangelical Lutheran Church. 129 A.D.3d 1053, 1054 [2d Dept 2015]; Kelly G. v Board of Educ. of City of Yonkers, 99 A.D.3d 756, 757 [2d Dept 2012]). [3] The Diocese, however, contends that plaintiffs allegations regarding its actual or constructive notice of Father Smith and Father Lavaroni's propensity to commit sexual assault are conclusory and insufficient. In evaluating such allegations, courts have emphasized that "[clauses of action alleging negligent hiring, negligent retention, or negligent supervision are not statutorily required to be pleaded with specificity" (Davila, 215 A.D.3d at 635, quoting Doe v Enlarged City Sch. Dist. of Middletown, 195 A.D.3d at 596; see Boyle, 208 A.D.3d at 755). "The manner in which the defendant acquired actual or constructive notice of [the employee's propensity to commit the alleged] abuse is an evidentiary fact, to be proved by the [plaintiff] at trial" (Martinez v State of New York, 215 A.D.3d 815, 819 [2d Dept 2023]) but, in a pleading, '"the plaintiff need not allege his [or her] evidence'" (id., quoting Mellen v Athens Hotel Co., 153 A.D. 891, 891 [1st Dept 1912]; see also Sokol v Leader, 74 A.D.3d 1180, 1182 [2d Dept 2010]; cf. Doe v Hauppauge Union Free Sch. Dist., 213 A.D.3d 809, 811 [2d Dept 2023] []).
Here relevant to defendants' knowledge, plaintiff, in the amended complaint, alleges, among other things, that Father Smith and Father Lavaroni were serial sexual predators who abused multiple minor children during their employment by defendants (Amended Complaint, at ¶ 48), that this fact was common knowledge among agents and/or employees of defendants at Atonement and Holy Apostles (Amended Complaint, at ¶ 49), that plaintiff was observed by agents and/or employees of defendants going with Father Smith and Father Lavaroni to the rectory and other remote locations at the premises of Atonement and Holy Apostles with no legitimate explanation or purpose (Amended Complaint, at ¶ 50), that Father Smith and Father Lavaroni each knew the other was sexually assaulting and abusing plaintiff (Amended Complaint, at ¶¶ 52-53), that plaintiff reported the abuse by Father Smith and Father Lavaroni to one or more agents and/or employees of defendants (Amended Complaint, at ¶¶ 54-55) and. accordingly, that defendants knew or should have known of Father Smith and Father Lavaroni's propensity to commit such conduct and were in a position to stop such...
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