Doe v. Educ. Inst. Oholei Torah
| Docket Number | Index No. 525322/2019,Motion Seq. Nos. 001,002,NYSCEF Doc. No. 56 |
| Decision Date | 03 November 2023 |
| Parties | JOHN DOE Plaintiff, v. EDUCATIONAL INSTITUTE OHOLEI TORAH AND CENTRAL YESHIVA TOMCHEI TMIMIM LUBAVITCH Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 15-20, 22, 37-44 were read on this motion to/for DISMISS.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 25 - 29, 36, 42-43, 45 were read on this motion to/for DISMISS.
Plaintiff commenced this action pursuant to the Child Victims Act ("CVA") seeking damages for alleged sexual assault he suffered when he was a student at Educational Institute Oholei Torah ("Oholei Torah").
The following facts are alleged in the complaint.
Oholei Torah is an educational institution that seeks to offer boys of Chabad-Lubavitch families, ages 3 to 18, a strong and traditional Chassidic education. It has several educational programs to address the needs of various age groups. Oholei Torah does not offer programs leading to the academic degrees authorized by the New York State Board of Regents. Rather Oholei Torah immerses its students in Talmudic and Chassidic studies and aims to carry forward the chain of Chassidic learning and outreach.
Oholei Torah students are expected to behave and to conform to Chasidic practice. The study of Torah, Chassidic philosophy ethics, and law are not meant to be an abstract or theoretical exercise at Oholei Torah.
After the age of 13 to 14, a boy begins Junior Yeshiva-called Mesivta-an intense program for studying Torah and Chassidus. At the age for 16 or 17, a boy begins advanced Yeshiva-called Zal-which is extremely intense. In Zal, the students study for 12 to 14 hours a day. They do not study any secular courses, but instead devote themselves exclusively to studying Torah and Chassidic teachings. Access to secular materials -books, music, and movies - are banned.
The aim of a yeshiva education is not about academic training for college or life, but it is about immersion in the words and teaching of Torah so that the young man becomes elevated, refined and more godly.
It is in this environment that Plaintiff met Avrohom Charitonov ("Charitonov"), and allegedly suffered repeated sexual abuse, without any intervention from Defendants.
Plaintiff joined the Zal division of Oholei Torah - the division for advanced studies - on or about 1987, at the age of 17. Since Plaintiffs parents did not live in New York, he was assigned to live in the dormitory located at 841-853 Ocean Parkway, Brooklyn, N.Y. 30. From the start, Plaintiff was lonely and needed guidance. His friend suggested that he confide in their young teacher, Charitonov, who was also viewed as a mentor to the students. Charitonov was enrolled in Central Yeshiva Tomchei Tmimim Lubavitch ("Central Yeshiva"), equivalent to college. Charitonov resided at the President Street dormitory.
Plaintiff approached Charitonov and asked him for guidance. This was the start of an allegedly abusive relationship, in which Charitonov used his role as a teacher and role model to sexually abuse Plaintiff, repeatedly, in Central Yeshiva's dormitory, and convince him that this was an appropriate part of his training.
When Plaintiff first asked Charitonov for mentoring, Charitonov invited Plaintiff to meet after the last class of the day, approximately 9:30 p.m., and walk him to his dormitory. When they reached Charitonov's dormitory, he invited Plaintiff to join him in his bedroom. He told Plaintiff that he should follow his advice and lie down on his bed. Once Plaintiff was lying in the bed, Charitonov proceeded to take off Plaintiff s clothing without his approval. Charitonov then began to hug Plaintiff while he was undressed and as he hugged him, he started taking off his own clothes until he was totally undressed. Charitonov then lay down beside Plaintiff, all the time assuring him that this was normal and that this is the way of dealing with confusion and loneliness. Charitonov soon began to stroke Plaintiff all over his body, and forced him to touch his genitals, and then to keep stroking him until he ejaculated on Plaintiffs stomach. After ejaculating, Charitonov promptly fell asleep. When he awoke, he said that Plaintiff should walk home by himself, even though it was approximately 3:00 a.m.
Plaintiff walked back to his dormitory in a daze. No one noticed his late return as the dormitory was unsupervised. Thereafter, Charitonov's alleged sexual abuse escalated. Plaintiff sought guidance and wanted to talk, but each time, Charitonov began coercing him into sexual activity. He began to force Plaintiff to perform oral sex on Charitonov and then Charitonov would forcefully perform oral sex on Plaintiff.
The instances of forced oral sex began to become more and more frequent and always occurred in the President Street dormitory. There were no measures of security at the President Street dormitory. Central Yeshiva knew, or should have known, of the repeated acts of sexual molestation, since it was taking place at a dormitory under their supervision and control, and Plaintiff would often leave the dormitory at 2:00 or 3:00 a.m.
Once the alleged molestation started, Plaintiff felt trapped. He had no way of stopping the abuse. Further, Charitonov made it clear that if Plaintiff disclosed the sexual molestation, Charitonov would retaliate and shame him publicly. Additionally, Charitonov was physically imposing. When Plaintiff showed reluctance, Charitonov used his psychical strength to dominate Plaintiff. He would arm wrestle with the Plaintiff and demonstrate his strength. This caused Plaintiff to fear Charitonov.
Charitonov's sexual abuse became much more intense and more forceful when he started to take Plaintiff to the mikvah, located at 394 Kingston Avenue, Brooklyn, N.Y. The Mikva was open all night and there was no security there whatsoever. At the Mikva, Charitonov's abuse was more forceful. To demonstrate his complete power over Plaintiff, Charitonov rubbed his genitals on Plaintiffs face and then ejaculated on Plaintiffs face. It was at the mikvah where Charionov started to force Plaintiffs face into his buttocks and force Plaintiff to lick his buttocks and his entire genital area and behind. Plaintiff felt disgusted and confused.
In the past, immersion in a ritual bath had evoked feelings of cleansing and spirituality for the Plaintiff. However, after his encounters with Charitnov in the Mikva, Plaintiff began to associate the mikva with terror, humiliation and disgust.
On June 17, 2020, Central Yeshiva moved for an order pursuant to CPLR §3211(a)(7) dismissing the complaint for failure to state a cause of action.
On September 17, 2020, Oholei Torah moved for an order pursuant to CPLR§ 3211(a)(7), dismissing the complaint on the grounds that the complaint fails to state a cause of action; and/or dismissing the complaint on the grounds that the CVA as codified under CPLR 214-g is a violation of due process rights under the New York State Constitution.
The motions are consolidated herein and determined as set forth below.
In determining a motion to dismiss a complaint pursuant to CPLR §3211(a)(7), a court's role is deciding "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" (African Diaspora Maritime Corp, v Golden Gate Yacht Club, 109 A.D.3d 204 [1st Dept 2013]; Siegmund Strauss, Inc. v East 149th Realty Corp., 104 A.D.3d 401 [1st Dept 2013]).
The standard on a motion to dismiss a pleading for failure to state a cause of action is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v Thorn Rock Realty Co., 163 A.D.2d 46 [1st Dept 1990]; Leviton Manufacturing Co Inc. v Blumberg, 242 A.D.2d 205 [1st Dept 1997]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see CPLR 3026; Siegmund Strauss, Inc., 104 A.D.3d 401).
In deciding such a motion, the 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 into any cognizable legal theory" (Siegmund Strauss, Inc., 104 A.D.3d 401; Nonnon v City of New York, 9 N.Y.3d 825 [2007]; Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]).
It is the movant who has the burden to demonstrate that, based upon the four comers of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action (see Leon, 84 N.Y.2d at 87-88; Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]; Salles, 300 A.D.2d at 228).
The complaint asserts six causes of action: Negligent Hiring, Supervision and Retention; Negligence; Breach of Non-Delegable Duty; Breach of Fiduciary Duty; Negligent Infliction of Emotional Distress; and Breach of Duty in Loco Parentis.
Plaintiff consents to dismissal of the third, fourth and fifth causes of action as against Central Yeshiva. Plaintiff further consents to dismissal of that portion of the first cause of action as against Central Yeshiva that asserts Negligent Hiring. Therefore, those portions of the motion are granted on consent.
The sixth cause of action for Breach of Duty in Loco Parentis is...
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