Krystal G. v. Roman Catholic Diocese of Brooklyn

• Decision Date: 14 October 2011
• Citation: 933 N.Y.S.2d 515,274 Ed. Law Rep. 269,34 Misc.3d 531,2011 N.Y. Slip Op. 21364
• Parties: KRYSTAL G., An Infant Under the Age of Fourteen Years, by her Parents and Natural Guardians, Vivian G. and Juan G., and in Their Individual Capacities, Plaintiffs v. ROMAN CATHOLIC DIOCESE OF BROOKLYN, Congregation of the Mission of St. Vincent De Paul of Germantown s/h/a Congregation of the Mission of St. Vincent De Paul, Eastern Province of the Congregation of the Mission of St. Vincent De Paul, Vice Province of the Congregation of the Mission of St. Vincent De Paul, St. John the Baptist Roman Catholic Church, St. John the Baptist School, Joseph Agostino and Augusto Cortez, Defendants.
• Court: New York Supreme Court

2011 N.Y. Slip Op. 21364

274 Ed. Law Rep. 269

34 Misc.3d 531

933 N.Y.S.2d 515

KRYSTAL G., An Infant Under the Age of Fourteen Years, by her Parents and Natural Guardians, Vivian G. and Juan G., and in Their Individual Capacities, Plaintiffs

v.ROMAN CATHOLIC DIOCESE OF BROOKLYN, Congregation of the Mission of St. Vincent De Paul of Germantown s/h/a Congregation of the Mission of St. Vincent De Paul, Eastern Province of the Congregation of the Mission of St. Vincent De Paul, Vice Province of the Congregation of the Mission of St. Vincent De Paul, St. John the Baptist Roman Catholic Church, St. John the Baptist School, Joseph Agostino and Augusto Cortez, Defendants.

Supreme Court, Kings County, New York.

Oct. 14, 2011.

The Law Offices of William Cafaro, New York, for plaintiff.

Picciano & Scahill, P.C., Westbury, for Defendants Roman Catholic Diocese of Brooklyn, St. John the Baptist Parish, St. John the Baptist Roman Catholic Church and St. John the Baptist School.

Law Office of Zachary Margulis–Ohnuma, New York, for Defendant Augusto Cortez.KAREN B. ROTHENBERG, J.

Defendant Joseph Agostino (Agostino), former pastor at defendant St. John the Baptist Roman Catholic Church (Church) in Brooklyn, moves, pursuant to CPLR 3211(a)(7) and/or CPLR 3212, to dismiss the claims against him. Plaintiffs, Krystal G., an infant, and Vivian and Juan G., her parents, proceeding on their child's and their own behalf, have sued Agostino and others ¹ for negligently hiring, retaining and supervising defendant Augusto Cortez (Cortez), the former assistant pastor, who allegedly sexually assaulted Krystal G.

Plaintiffs oppose all aspects of Agostino's motion, and cross-move, pursuant to CPLR 3124, to compel defendants Cortez and the Vincentian defendants to provide certain requested discovery documents.

Defendant Cortez and the Vincentian defendants cross-move, pursuant to CPLR 3103, to limit discovery and to compel all parties to execute a protective order, prepared by counsel for the Vincentian defendants and designating plaintiffs' requested documents as “confidential” so that such documents remain inaccessible to the public.

Pertinent Facts and Procedural History

Plaintiffs' amended complaint alleges that defendant Cortez sexually assaulted and abused the infant plaintiff at defendant St. John the Baptist School (School) on May 28, 2008, when she was 12 years old, by touching, holding and fondling her breast. Plaintiffs also claim that defendant Agostino, for whom Cortez worked, negligently hired, retained and/or supervised Cortez.

Agostino served as Church pastor from September 2000 through May 2009 and is still employed by defendant Eastern Province of the Congregation of the Mission of St. Vincent De Paul (Eastern Province). Agostino, as Church pastor, bore responsibility for the daily operation and governance of defendant St. John the Baptist Parish (Parish). Additionally, Agostino allegedly exerted influence over defendant School, which was located across the street from the Church where the sexual abuse purportedly occurred.

Defendant Congregation in or around September 2003 made Cortez assistant Church pastor. Cortez frequented defendant School and resided in defendant Church's Local Community House (Community House), located on the same block as defendant Church and defendant School. Agostino served as the “Local Superior” at the Community House, from 2007 through the time of the alleged abuse, and had oversight responsibilities over Cortez and other Community House residents.

The affidavit of Juan G., infant plaintiff's father, avers that both defendant School's principal and assistant principal will confirm that Agostino authorized Cortez's presence at the School, even though school administrators objected to Cortez's presence. In particular, the principal and assistant principal, according to Mr. G., were concerned about Cortez's contact with the School children and the fact that he was summoning children out of class to perform chores unrelated to school work. Accordingly, the School's administrators undertook to remove Cortez from School premises. However, Agostino, allegedly overruled the administrators' decision and validated Cortez's continuing presence at the school. Plaintiffs commenced this action on December 11, 2009 and filed an amended summons and amended complaint on January 27, 2010.² The amended complaint alleges, in essence, causes of action for: (1) sexual assault and battery, infliction of emotional distress and violation of the Penal Law against defendant Cortez; (2) negligent hiring, retention and supervision of defendant Cortez against all other defendants; (3) failure by defendants to properly train, supervise, instruct and manage Agostino so that he would properly supervise Cortez; and (4) loss of companionship and services of the infant plaintiff to each of her parents.

Plaintiffs served discovery demands on September 9, 2010, but defendant Cortez and the Vincentian defendants have asserted privilege and have refused to comply with those demands. The Vincentian defendants proposed, on September 29, 2010, that all parties execute a protective order which was written by the Vincentian defendants' counsel. Plaintiffs have refused to sign the protective order, resulting in this motion and cross motions.

The Parties' Claims

Essentially, plaintiffs claim that Agostino negligently supervised and/or hired and retained Cortez because Agostino either knew or should have known, through “direct information, records, discipline, conversations, behavior, mannerisms, speech, and [Cortez's] other conduct” that Cortez posed a sexual threat to the School children (Plaintiffs' Affirmation in Opposition to Defendant Agostino's Dismissal/Summary Judgment Motion, ¶ 10).

Agostino seeks dismissal as against him, pursuant to either CPLR 3211(a)(7) or 3212. First, Agostino argues that plaintiffs cannot satisfy the elements of negligent supervision because (a) he is not Cortez's employer; (b) he denied knowledge of Cortez's propensity, if any, for sexual abuse, and (c) Cortez's alleged abuse did not occur on his employer's premises. Also, Agostino argues that any negligence attributed to him is automatically “imputed to [Agostino's] employer, under the doctrine of respondeat superior, thereby alleviating any direct cause of action against [him],” because he did not commit an “independent tortious act” outside the scope of his employment (Affirmation in Further Support of Defendant[ ] [Agostino's] Motion to Dismiss, ¶¶ 13, 14).

Plaintiffs cross-move, pursuant to CPLR 3126, to compel discovery as material and necessary and unprotected by privilege seeking compliance with their discovery demands.

Defendant Cortez and the Vincentian defendants, assert privilege, and otherwise object to plaintiffs' discovery demands. Defendant Cortez's cross motion and a portion the Vincentian defendants' cross motion affirmatively seek a protective order, pursuant to CPLR 3103, governing confidential materials. In addition, the Vincentian defendants' cross motion seeks a protective order, limiting discovery and precluding plaintiffs from inquiring into allegations of sexual misconduct by Agostino himself, and an in camera review of any discoverable files.

Discussion

The court on a dismissal motion pursuant to CPLR 3211(a)(7) “must take the allegations asserted within a plaintiff's complaint as true and accord plaintiff the benefit of every possible inference, determining only whether the facts as alleged fit within any cognizable legal theory” ( Samiento v. World Yacht Inc., 10 N.Y.3d 70, 79, 854 N.Y.S.2d 83, 883 N.E.2d 990 [2008]; see also CPLR 3026 [“(p)leadings shall be liberally construed”] ). Furthermore, a court may freely consider affidavits submitted by plaintiff to remedy any defects in the complaint ( Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; see also Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976]; Uzzle v. Nunzie Court Homeowners Assn., Inc., 70 A.D.3d 928, 930, 895 N.Y.S.2d 203 [2010] ) and must determine “whether the proponent of the pleading has a cause of action, not whether he has stated one” ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ). However, “while factual allegations contained in the complaint are deemed true, bare legal conclusions and facts flatly contradicted on the record are not entitled to a presumption of truth” ( Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 A.D.3d 191, 194, 888 N.Y.S.2d 538 [2009] ).

Negligent Hiring and Retention

A claimant states a cause of action for negligent hiring and retention by adequately alleging that the “employer knew or should have known of the employee's propensity for the conduct which caused the injury” ( Bumpus v. New York City Tr. Auth., 47 A.D.3d 653, 654, 851 N.Y.S.2d 591 [2008] [internal quotation marks and citation omitted]; see also Jackson v. New York Univ. Downtown Hosp., 69 A.D.3d 801, 801–02, 893 N.Y.S.2d 235 [2010]; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 [1997], cert. denied 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316 [1997], lv. dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492 [1997] [Appellate Division, Second Department modified Kings County Supreme Court's decision and granted motion to dismiss plaintiff's claim that the Roman Catholic Diocese of Brooklyn was negligent in hiring and failing to establish proper guidelines and procedures for screening and investigating priests since there is “no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee”] [ Id. at 163, 654 N.Y.S.2d 791] ). Even assuming arguendo that Agostino was Cortez's employer, plaintiffs allege no factual scenario allowing an inference that Agostino should...