Doe v. Roman Catholic Archdiocese of N.Y.
| Decision Date | 09 May 2023 |
| Docket Number | Index No. 950614/2020,MOTION SEQ. No. 002 |
| Citation | 2023 NY Slip Op 31621 (U) |
| Parties | JANE DOE, Plaintiff, v. ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK, ADRIAN DOMINICAN SISTERS, MOUNT HOPE FOUNDATION, INC., LOGOS CORPORATION, CECILIA MELLET, THE ESTATE OF DR. HERBERT THOMAS SCHWARTZ, DOMINICAN FRIARS PROVINCE OF ST. JOSEPH Defendants. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 30, 31, 32, 50, 55, 56, 57, 58, 59, 60, 61, 62, 63, 70, 90 91 were read on this motion to/for DISMISSAL.
Upon the foregoing documents, defendant Roman Catholic Archdiocese of New York (the Archdiocese or defendant) moves to dismiss the complaint and/or amended complaint[1] pursuant to CPLR 3211 (a) (1) and (7) or, alternatively, pursuant to CPLR 3212.
Plaintiffs complaint alleges that she was sexually abused by Dr. Herbert Thomas Schwartz and Annie Emmerson while living on co-defendant Mount Hope Foundation's (Foundation) commune located in Middleton, New York in or around 1978-1980 when plaintiff was approximately 4-6 years old. She also alleges that co-defendant Cecilia Mellet, Schwartz, and Emmerson "were leaders, agents, servants and/or employees of the [Foundation] commune, operating under the direction and control of defendant [Archdiocese], and its agents, servants and/or employees" (NYSCEF Doc No 52 at ¶ 13). The complaint further alleges that purported Archdiocesean priests, Father Tommy Rover, Father Maury, and another priest were assigned to and were actively involved with religious activities and services at the commune and had knowledge of the sexual abuse and failed to stop it. Plaintiff asserts three causes of action against the movant for negligence, negligent hiring, retention, and supervision, and negligent infliction of emotional distress (NIED) (first through third counts, respectively).
In determining dismissal under CPLR Rule 3211 (a) (7), the "complaint is to be afforded a liberal construction" (Goldfarb v Schwartz, 26 A.D.3d 462, 463 [2d Dept 2006]). The "allegations are presumed to be true and accorded every favorable inference" (Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]). "[T]he sole criterion is whether the pleading states a cause of action, and if from its four comers 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 N.Y.2d 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 N.Y.3d 11, 19 [2005]).
A motion to dismiss a complaint based upon documentary evidence pursuant to CPLR 3211 (a) (1) "may be appropriately granted where the documentary evidence utterly refutes the plaintiffs factual allegation, 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]; Leon v Martinez, 84 N.Y.2d 83, 88 [1994]). Not every piece of evidence in the form of a document is properly deemed
"documentary evidence." The appellate courts have noted this distinction, finding that legislative history and supporting cases make it clear that "judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are 'essentially undeniable,' would qualify as 'documentary evidence' in the proper case" (Fontanetta v Doe. 73 A.D.3d 78, 86 [2d Dept 2010]; Amsterdam Hosp. Grp., LLC v Marshall-Alan Assocs., Inc., 120 A.D.3d 431, 432 [1st Dept 2014]).
In support of its motion to dismiss, defendant submits certificates of incorporation for co-defendant(s) and the affidavit of defendant's Associate General Counsel, Roderick Cassidy. Defendant argues that the evidence shows that the Archdiocese did not own or operate the Foundation commune, nor supervise its staff or leaders, and did not have any relationship with the alleged abuser(s). However, the fact that the Foundation and/or co-defendant Logos Corporation are separately formed entities does not negate the possibility that, as alleged in the complaint, the Archdiocese had any control over the commune or its leaders.
Additionally, the affidavit does not constitute "documentary evidence" within the meaning of CPLR 3211 (a) (1) (see J.D. v Archdiocese of New York, __ A.D.3d __, 2023 NY Slip Op 01588 [1st Dept Mar. 23, 2023]; Correa v Orient-Express Hotels, Inc., 84 A.D.3d 651 [1st Dept 2011] citing, inter alia, Weil, Gotshal &Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271 [1st Dept 2004]; Fontanetta v Doe, 73 A.D.3d 78, 86 [2d Dept 2010] []).
Further, although "a trial court may use affidavits in its consideration of a pleading motion to dismiss," where, as here, the Court declines to convert the motion into one for summary judgment, such affidavits "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" (Rovello v Orofino Realty Co., Inc., 40 N.Y.2d 633, 635 [1976]). Consequently, affidavits submitted from a defendant "will almost never warrant dismissal under CPLR 3211" (Lawrence v Miller. 11 N.Y.3d 588, 595 [2008]) "unless [they] establish conclusively that plaintiff has no cause of action" (Rovello, 40 N.Y.2d at 636).
Here it cannot be said that defendant met its burden establishing that plaintiff has no claim against it as a matter of law because the affidavit is not conclusive (see J.D., 2023 NY Slip Op 01588). It is important to note that an affidavit is not necessarily subject to cross examination and the issue of whether an employment relationship exists sufficient to hold defendant liable for negligence in failing to exercise reasonable care in hiring, supervising, or retaining the alleged abuser may be a fact-intensive analysis as to the extent of defendant's power to order and control the employee's performance of work .
Defendant's alternate request for relief pursuant to CPLR 3212 is denied as well. First, CPLR 3212 (a) explicitly requires that issue be joined and defendant has not yet filed an answer (see Alro Builders and Contractors, Inc, v Chicken Koop, Inc., 78 A.D.2d 512, 512 [1st Dept 1980]). Second, it is clear that discovery remains outstanding related to the issue mentioned above about the exact nature and scope of the relationship between defendant and the tortfeasor(s), among others. Accordingly, summary judgment is premature (see Rutherford v Brooklyn Navy Yard Dev. Corp., 174 A.D.3d 932, 933 [2d Dept 2019]; Rodriguez Pastor v DeGaetano, 128 A.D.3d 218, 227-28 [1st Dept 2015]).
"A breach of the duty of care 'resulting directly in emotional harm is compensable even though no physical injury occurred' when the mental injury is 'a direct, rather than a consequential, result of the breach' and when the claim possesses 'some guarantee of genuineness'" (Ornstein v New York City Health &Hosps. Corp. 10 N.Y.3d 1, 6 [2008], quoting Kennedy v McKesson Co., 58 N.Y.2d 500, 504, 506 [1983] and Ferrara v Galluchio, 5 N.Y.2d 16, 21 [1958] [internal citations omitted]). "The latter element may be satisfied where the particular type of negligence is recognized as providing an assurance of genuineness, as in cases involving the mishandling of a corpse or the transmission of false information that a parent or child had died" (Taggart...
To continue reading
Request your trial