Tcvanycd-Doe v. Madison Square Boys & Girls Club, Inc.
| Decision Date | 19 April 2023 |
| Docket Number | Index No. 950623/2020 |
| Citation | 2023 NY Slip Op 31336 (U) |
| Parties | TCVANYCD-DOE, Plaintiff, v. MADISON SQUARE BOYS &GIRLS CLUB, INC. F/K/A MADISON SQUARE BOYS CLUB, ROCKEFELLER UNIVERSITY A/K/A ROCKEFELLER UNIVERSITY HOSPITAL F/K/A ROCKEFELLER INSTITUTE HOSPITAL, Defendants. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 30, 31, 32, 33, 34, 37, 39,41, 46,48, 50, 52 were read on this motion to/for DISMISS.
Upon the foregoing documents, Defendant Rockefeller University a/k/a/ Rockefeller University Hospital f/k/a Rockefeller Institute Hospital (hereinafter, "Rockefeller") moves for dismissal of the instant Child Victims Act ("CVA") action as against it pursuant to CPLR 321 l(a)(7) (Motion Seq. 003).
Plaintiff alleges that beginning in 1967 when he was approximately eight years old through 1973, he attended activities at a youth center operated by Defendant Madison Square Boys & Girls Club Inc. f/k/a Madison Square Boys Club ("MSBC"). Plaintiff alleges that MSBC required him to attend medical examinations with Dr. Reginald Archibald, a "pool and/or staff doctor at MSBC" who was also "acting in his capacity as a researcher and senior physician" at Rockefeller. Plaintiff alleges that during the medical examinations, he was repeatedly sexually assaulted by Dr. Archibald, and that Dr. Archibald committed the sexual offenses under the guise of his "growth studies" for Rockefeller. Plaintiff alleges that Rockefeller knew or should have known that Dr. Archibald was using his position with the hospital to abuse minors and yet took no action and continued to arrange his access to children at MSBC.
Rockefeller now moves for dismissal of the complaint, arguing, inter alia, that it owed no cognizable duty to Plaintiff, that it cannot be vicariously liable for Dr. Archibald's intentional acts of abuse, and that numerous causes of action are duplicative as asserted.
Rockefeller has filed identical motions for dismissal under two related actions, SCVANYCP-DOE v Madison Square Boys &Girls Club, Inc. et al. (Index No. 950249/2020), and TCVANYCR-DOE v Madison Square Boys &Girls Club, Inc. et al. (Index No. 950248/2020). Plaintiffs have filed coordinated opposition. As such, the Court will render a substantively identical decision on each motion.
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]; Levitan 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]). 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 A.D.3d 437 [1st Dept 2012]; Biondi v Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 [1st Dept 1999], aff'd 94 N.Y.2d 659 [2000]; Kliebert v McKoan, 228 A.D.2d 232 [1st Dept 1996], Iv denied 89 N.Y.2d 802 [1996], and the criterion becomes "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 [1977]; see also Leon, 84 N.Y.2d at 88; Ark Bryant Park Corp, v Bryant Park Restoration Corp., 285 A.D.2d 143, 150 [1st Dept 2001] ["In deciding such a pre-answer motion, the court is not authorized to assess the relative merits of the complaint's allegations against the defendant's contrary assertions or to determine whether or not plaintiff has produced evidence to support his claims" (Salles v Chase Manhattan Bank, 300 A.D.2d 226, 228 [1st Dept 2002]).
Rather, where a motion to dismiss is directed at the sufficiency of a complaint, the plaintiff is afforded the benefit of a liberal construction of the pleadings: "The scope of a court's inquiry on a motion to dismiss under CPLR 3211 is narrowly circumscribed," the object being "to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action" (P. T. Bank Central Asia v Chinese Am. Bank, 301 A.D.2d 373,; 375-376 [1st Dept 2003]; see Rovello v Orofino Realty Co., 40 N.Y.2d 633, 634 [1976]).
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, 43 N.Y.2d at 275; Salles, 300 A.D.2d at 228).
The Court will address each of the grounds upon which Rockefeller seeks dismissal in turn.
Rockefeller argues that Plaintiffs negligence-based claims should be dismissed because Plaintiff fails to identify a cognizable duty between it and Plaintiff, given that Plaintiff alleges he encountered Dr. Archibald only at MSBC and not Rockefeller. Rockefeller also argues the claims should be dismissed as Dr. Archibald was not working on the university's premises or using its chattels during the abuse, and that the complaint does not assert a sufficient nexus between Rockefeller's employment of Dr. Archibald and his abuse of Plaintiff. In opposition, Plaintiff argues his negligence claims are sufficiently pled, and that discovery is warranted to ascertain the extent of Rockefeller's arrangement with MSBC and Rockefeller's ability to prevent the abuse.
"To sustain a cause of action alleging negligence, 'a plaintiff must demonstrate the existence of a duty', a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries" (Schindler v Ahearn, 69 A.D.3d 837, 838 [2d Dept 2010], quoting Engelhart v County of Orange, 16 A.D.3d 369, 371 [2d Dept 2005]). If there is no duty of care owed by the defendant to the plaintiff, there can be no breach and, consequently, no liability can be imposed upon the defendant (see Pulka v Edelman, 40 N.Y.2d 781 [1976], Engelhart, 16 A.D.3d at 371).
Whether a duty of care is owed by one person to another is a question of law (see Purdy v Public Adm'r of County of Westchester, 72 N.Y.2d 1 [1988]; Engelhart, 16 A.D.3d at 371). In general, an entity has no duty to control a third party's conduct so as to prevent injury to another unless special circumstances exist in which the entity has sufficient authority and control over the conduct of that third party (see id.).
In the context of special circumstances between an employer and its employee, the focus is not on the potential plaintiff, but rather the employer and its relationship with the employee/tortfeasor (see Waterbury v New York City Ballet, Inc., 205 A.D.3d 154, 161 [1st Dept 2022]). This is because "[t]he negligence of the employer. .. arises from its having placed the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee" Of the Prot. Episcopal Church, 198 A.D.3d 698, 699-702 [2nd Dept 2021], quoting Johansmeyer v New York City Dept, of Educ., 165 A.D.3d 634, 634-37 [2nd Dept 2018]; see also Doe v Congregation of the Mission of St. Vincent De Paul in Germantown, 2016 NY Slip Op 32061[U] [ [hereinafter Doe v Congregation]). Thus, "the duty of care in supervising an employee extends to any person injured by the employee's misconduct" (Waterbury, 205 A.D.3d at 162).
A claimant can maintain a cause of action for negligent retention by adequately alleging that the "employer knew or should have known of the employee's propensity for the conduct which caused the injury" and nevertheless continued the employee's service (Bumpus v. New York City Tr. Auth., 47 A.D.3d 653, 654 [2d Dept. 2008] [internal quotation marks and citation omitted]; see also Jackson v. New York Univ. Downtown Hosp., 69 A.D.3d 801, 801-02 [2d Dept. 2010]; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 [2d Dept. 1997], cert, denied 522 U.S. 967 [1997], Iv. dismissed 522 91 N.Y.2d 848 [1997] [...
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