ARK512 Doe v Diocese of Brooklyn 2024 NY Slip Op 31215(U) April 8, 2024 Supreme Court, Kings County Docket Number: Index No. 518161/2021 Judge: Alexander M. Tisch Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: KINGS COUNTY CLERK 04/09/2024 03:59 P~ INDEX NO. 518161/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 04/09/2024
SUPREME COURT OF THE STATE OF NEW YORK KINGS COUNTY PRESENT: HON. ALEXANDER M. TISCH PART 18/CVA Justice ---------X INDEX NO. 518161/2021
ARK512 DOE, MOTION DATE 3/20/2024 Plaintiff,
MOTION SEQ. NO. 002 DIOCESE OF BROOKLYN a/k/a THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; BROTHERS OF THE CHRISTIAN SCHOOLS a/k/a BROTHERS OF THE CHRISTIAN SCHOOLS NEW YORK PROVINCE a/k/a BORHTERS OF THE CHRISTIAN SCHOOLS DISTRICT OF NORTH AMERICA, INC. d/b/a FSC DENA a/k/a LA SALLE PROVINCIALATE, INC.; ST. CECILIA; DIVINE MERCY DECISION + ORDER ON ROMAN CATHOLIC CHURCH; and DOES 1-5 whose MOTION identities are unknown to Plaintiff,
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 002) were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT
BACKGROUND
On August 12, 2021, the Plaintiff commenced this action pursuant to the New York Child
Victims Act ("CVA"), CPLR 214-g, by filing a Summons and Complaint naming defendants the
Roman Catholic Diocese of Brooklyn, New York (the "Diocese"), Brothers of the Christian
Schools, St. Cecilia's and Divine Mercy Roman Catholic Church asserting causes of action for
Negligence, Negligent Training and Supervision of Employees, and Negligent Retention of
Employees. Plaintiff alleges that in approximately 1980 to 1981, when Plaintiff was
approximately 11 years old and a parishioner at St. Cecilia's, he was sexually abused by non-party
Patrick Sexton ("Fr. Sexton"), who was a priest at St. Cecilia's. Plaintiff further alleges that from
518161/2021 ARK512 DOE V DIOCESE OF BROOKLYN ET AL MOTION NO.002 Page 1 of 5
[* 1] 1 of 5 [FILED: KINGS COUNTY CLERK 04/09/2024 03:59 P~ INDEX NO. 518161/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 04/09/2024
approximately 1981 to 1984, when Plaintiff was approximately 12 to 14 years old and a parishioner
at St. Cecilia's, he was sexually abused by non-party Joseph Garito ("Br. Garito"), who was then
a priest at St. Cecilia's. As a result of the alleged sexual abuse, Plaintiff alleged that he sustained
physical and psychological injuries.
PROCEDURAL HISTORY
On August 7, 2023, at a Compliance Conference regarding the cases proceeding against
Fr. Patrick Sexton, this Court ordered counsel for St. Cecilia's to provide responses to Plaintiffs
Standard Automatic Disclosures and Combined Demands on or before September 22, 2023. A
Compliance Conference Stipulation and Order to this effect was filed on August 14, 2023.
On September 21, 2023, St. Cecilia's produced its responses to Plaintiff's Standard
Automatic Disclosures and Standard Combined Demands. The only documents produced were
St. Cecilia's certificate of incorporation and Plaintiffs sacramental records - eleven pages in
total.
Plaintiff received no other documents or communication from St. Cecilia's in response to
this Court's Order.
At a January 4, 2024 Compliance Conference, the Court ordered St. Cecilia's to produce a
Jackson affidavit in the event it claims no records exist responsive to any discovery request. The
Court also ordered St. Cecilia's to produce a witness for deposition on or before April 26, 2024.
THE PENDING MOTION
St. Cecilia's now moves for an order vacating that part of this Court's prior order directing
them to produce a Jackson type affidavit, substantiating their claim that they have no further
responsive documents to produce other than the eleven pages of paper discovery already provided.
For the reasons set forth below, the motion is denied.
518161/2021 ARK512 DOE V DIOCESE OF BROOKLYN ET AL MOTION NO.002 Page 2 of 5
[* 2] 2 of 5 [FILED: KINGS COUNTY CLERK 04/09/2024 03:59 P~ INDEX NO. 518161/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 04/09/2024
DISCUSSION
Plaintiff argues that the motion does not lie pursuant to CPLR 5015(a). However, as the
order was made at a conference and without notice, St. Cecilia's is entitled to move to vacate the
order, so that it will have a vehicle for appellate review Velasquez v. CF T., Inc., 267 A.D.2d
229, 230 (1999). Additionally, this Court specifically allowed for such motion in the order to
ensure St. Cecilia's rights to appellate review would be preserved. As such, the Court will
address the merits of the motion.
St. Cecilia's argues that it should not be required to provide a Jackson type affidavit
because it is not required to by the CPLR. Alternatively, St. Cecilia's argues that the Court order
was vague because it did not specify what is expected to be included in the Jackson type
affidavit. Finally, St. Cecilia's asserts that three years into this litigation it is premature for the
Court to require such an affidavit.
The Court finds these arguments unpersuasive.
Jackson v. City of New York, 586 N.Y.S.2d 952 (1st Dep't 1992) has been interpreted to
require an affidavit from a record searcher to confirm that documents requested as a part of
discovery have been completely searched for and not found.
New York courts have required Jackson affidavits in a wide array of cases, and contrary
to movant's argument these holdings in no way require that the facts of the case must align with
those in Jackson v. City of New York, 586 N.Y.S.2d 952 (1st Dep't 1992). Rather the affidavits
are generally used when a party asserts that it has no documents in response to a discovery
demand. See eg Bankers Conseco Life Ins. Co. v. KPMG LLP, 185 N.Y.S.3d 651 (Sup. Ct. N.Y.
Cnty. 2023); Agius v. Gray Line Corp., 169 N.Y.S.3d 800 (Sup. Ct. N.Y. Cnty. 2022); Frankv.
Morgans Hotel Grp. Mgmt. LLC, 139 N.Y.S.3d 521 (Sup. Ct. N.Y. Cnty. 2021); Mesropian v
518161/2021 ARK512 DOE V DIOCESE OF BROOKLYN ET AL MOTION NO.002 Page 3 of 5
[* 3] 3 of 5 [FILED: KINGS COUNTY CLERK 04/09/2024 03:59 P~ INDEX NO. 518161/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 04/09/2024
Providence Care, Inc. 67 Misc.3d 1235Z(A)(Sup. Ct. Kings Cnty. 2020); WMC Mortg. Corp. v.
Vandermulen 32 Misc.3d 1206(A)(Sup. Ct. Suffolk Cnty. 2011); Lynx Capital Partners of NJ,
LLC v Nayes Capital LLC 217 AD3d 571 (2 nd Dept 2023 ); Anuchina v Marine Transport
Logistics, Inc. 216 AD3d 1126 (2 nd Dept 2023); Hassn v. Armouth International, Inc. 74 Misc.3d
1204(a) (Sup. Ct. N.Y. Cnty. 2022); Matityahu v Miller 75 Misc3d 1233(A) (Sup. Ct. N.Y. Cnty.
2022).
To the extent St. Cecilia's argues the order requiring a Jackson affidavit is vague and it is
certain what is required to comply, the Court finds said argument is not raised in good faith. As
noted, the order was issued after a conference with the parties. At the conference the affidavit
and what it was to include were specifically addressed and discussed at length. Additionally, the
case law in the moving papers cited by St. Cecilia's is replete with explanations as to what
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ARK512 Doe v Diocese of Brooklyn 2024 NY Slip Op 31215(U) April 8, 2024 Supreme Court, Kings County Docket Number: Index No. 518161/2021 Judge: Alexander M. Tisch Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: KINGS COUNTY CLERK 04/09/2024 03:59 P~ INDEX NO. 518161/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 04/09/2024
SUPREME COURT OF THE STATE OF NEW YORK KINGS COUNTY PRESENT: HON. ALEXANDER M. TISCH PART 18/CVA Justice ---------X INDEX NO. 518161/2021
ARK512 DOE, MOTION DATE 3/20/2024 Plaintiff,
MOTION SEQ. NO. 002 DIOCESE OF BROOKLYN a/k/a THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; BROTHERS OF THE CHRISTIAN SCHOOLS a/k/a BROTHERS OF THE CHRISTIAN SCHOOLS NEW YORK PROVINCE a/k/a BORHTERS OF THE CHRISTIAN SCHOOLS DISTRICT OF NORTH AMERICA, INC. d/b/a FSC DENA a/k/a LA SALLE PROVINCIALATE, INC.; ST. CECILIA; DIVINE MERCY DECISION + ORDER ON ROMAN CATHOLIC CHURCH; and DOES 1-5 whose MOTION identities are unknown to Plaintiff,
Defendants.
-------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT
BACKGROUND
On August 12, 2021, the Plaintiff commenced this action pursuant to the New York Child
Victims Act ("CVA"), CPLR 214-g, by filing a Summons and Complaint naming defendants the
Roman Catholic Diocese of Brooklyn, New York (the "Diocese"), Brothers of the Christian
Schools, St. Cecilia's and Divine Mercy Roman Catholic Church asserting causes of action for
Negligence, Negligent Training and Supervision of Employees, and Negligent Retention of
Employees. Plaintiff alleges that in approximately 1980 to 1981, when Plaintiff was
approximately 11 years old and a parishioner at St. Cecilia's, he was sexually abused by non-party
Patrick Sexton ("Fr. Sexton"), who was a priest at St. Cecilia's. Plaintiff further alleges that from
518161/2021 ARK512 DOE V DIOCESE OF BROOKLYN ET AL MOTION NO.002 Page 1 of 5
[* 1] 1 of 5 [FILED: KINGS COUNTY CLERK 04/09/2024 03:59 P~ INDEX NO. 518161/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 04/09/2024
approximately 1981 to 1984, when Plaintiff was approximately 12 to 14 years old and a parishioner
at St. Cecilia's, he was sexually abused by non-party Joseph Garito ("Br. Garito"), who was then
a priest at St. Cecilia's. As a result of the alleged sexual abuse, Plaintiff alleged that he sustained
physical and psychological injuries.
PROCEDURAL HISTORY
On August 7, 2023, at a Compliance Conference regarding the cases proceeding against
Fr. Patrick Sexton, this Court ordered counsel for St. Cecilia's to provide responses to Plaintiffs
Standard Automatic Disclosures and Combined Demands on or before September 22, 2023. A
Compliance Conference Stipulation and Order to this effect was filed on August 14, 2023.
On September 21, 2023, St. Cecilia's produced its responses to Plaintiff's Standard
Automatic Disclosures and Standard Combined Demands. The only documents produced were
St. Cecilia's certificate of incorporation and Plaintiffs sacramental records - eleven pages in
total.
Plaintiff received no other documents or communication from St. Cecilia's in response to
this Court's Order.
At a January 4, 2024 Compliance Conference, the Court ordered St. Cecilia's to produce a
Jackson affidavit in the event it claims no records exist responsive to any discovery request. The
Court also ordered St. Cecilia's to produce a witness for deposition on or before April 26, 2024.
THE PENDING MOTION
St. Cecilia's now moves for an order vacating that part of this Court's prior order directing
them to produce a Jackson type affidavit, substantiating their claim that they have no further
responsive documents to produce other than the eleven pages of paper discovery already provided.
For the reasons set forth below, the motion is denied.
518161/2021 ARK512 DOE V DIOCESE OF BROOKLYN ET AL MOTION NO.002 Page 2 of 5
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DISCUSSION
Plaintiff argues that the motion does not lie pursuant to CPLR 5015(a). However, as the
order was made at a conference and without notice, St. Cecilia's is entitled to move to vacate the
order, so that it will have a vehicle for appellate review Velasquez v. CF T., Inc., 267 A.D.2d
229, 230 (1999). Additionally, this Court specifically allowed for such motion in the order to
ensure St. Cecilia's rights to appellate review would be preserved. As such, the Court will
address the merits of the motion.
St. Cecilia's argues that it should not be required to provide a Jackson type affidavit
because it is not required to by the CPLR. Alternatively, St. Cecilia's argues that the Court order
was vague because it did not specify what is expected to be included in the Jackson type
affidavit. Finally, St. Cecilia's asserts that three years into this litigation it is premature for the
Court to require such an affidavit.
The Court finds these arguments unpersuasive.
Jackson v. City of New York, 586 N.Y.S.2d 952 (1st Dep't 1992) has been interpreted to
require an affidavit from a record searcher to confirm that documents requested as a part of
discovery have been completely searched for and not found.
New York courts have required Jackson affidavits in a wide array of cases, and contrary
to movant's argument these holdings in no way require that the facts of the case must align with
those in Jackson v. City of New York, 586 N.Y.S.2d 952 (1st Dep't 1992). Rather the affidavits
are generally used when a party asserts that it has no documents in response to a discovery
demand. See eg Bankers Conseco Life Ins. Co. v. KPMG LLP, 185 N.Y.S.3d 651 (Sup. Ct. N.Y.
Cnty. 2023); Agius v. Gray Line Corp., 169 N.Y.S.3d 800 (Sup. Ct. N.Y. Cnty. 2022); Frankv.
Morgans Hotel Grp. Mgmt. LLC, 139 N.Y.S.3d 521 (Sup. Ct. N.Y. Cnty. 2021); Mesropian v
518161/2021 ARK512 DOE V DIOCESE OF BROOKLYN ET AL MOTION NO.002 Page 3 of 5
[* 3] 3 of 5 [FILED: KINGS COUNTY CLERK 04/09/2024 03:59 P~ INDEX NO. 518161/2021 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 04/09/2024
Providence Care, Inc. 67 Misc.3d 1235Z(A)(Sup. Ct. Kings Cnty. 2020); WMC Mortg. Corp. v.
Vandermulen 32 Misc.3d 1206(A)(Sup. Ct. Suffolk Cnty. 2011); Lynx Capital Partners of NJ,
LLC v Nayes Capital LLC 217 AD3d 571 (2 nd Dept 2023 ); Anuchina v Marine Transport
Logistics, Inc. 216 AD3d 1126 (2 nd Dept 2023); Hassn v. Armouth International, Inc. 74 Misc.3d
1204(a) (Sup. Ct. N.Y. Cnty. 2022); Matityahu v Miller 75 Misc3d 1233(A) (Sup. Ct. N.Y. Cnty.
2022).
To the extent St. Cecilia's argues the order requiring a Jackson affidavit is vague and it is
certain what is required to comply, the Court finds said argument is not raised in good faith. As
noted, the order was issued after a conference with the parties. At the conference the affidavit
and what it was to include were specifically addressed and discussed at length. Additionally, the
case law in the moving papers cited by St. Cecilia's is replete with explanations as to what
constitutes a Jackson affidavit. But to be clear the Court will now underscore in writing what it
expects such an affidavit to contain:
When the response to a discovery request is, in effect, that there are no responsive documents within the party's custody, possession, or control, that party must provide a detailed statement, under oath, by someone with direct knowledge of the facts setting forth the past and present status of the relevant documents; where they were kept; what efforts, if any, were made to preserve them; the circumstances surrounding their disappearance or destruction; and the means and methods used to conduct a search for them (Jackson v. City of New York, 185 A.D.2d 768, 770; Dziegielewsky v. Advanced Integrative Wellness, LLC, Sup Ct, Nassau County, March 9, 2010, Murphy, J., at 2 [2010 WL 1515585]; Tower Ins. Co. of New Yorkv. Headley, Sup Ct, New York County, August 11, 2009, Stallman, J., at 4 [2009 WL 2578547]; Lazzaro v. MJM Industries, Inc., Sup Ct, New York, April 7, 2003, Jones, J., at 3 [2003 WL 25573908] ). In short, the affidavit submitted must provide the court with a basis to find that the search conducted was a thorough one or that it was conducted in a good faith effort to provide the necessary records to the plaintiff (Jackson v. City of New York. supra at 770).
WMC Mortg. Corp. v. Vandermulen, 32 Misc. 3d 1206(A)(Sup. Ct. 2011).
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In the instant case, the documents requested by Plaintiff are part of Court-Ordered
Demands contained in the Case Management Orders and are central to the issued raised in this
action. St. Cecilia's has asserted it has no documents in response to the majority of Plaintiffs
discovery demands. Despite multiple requests, St. Cecilia's has refused to supplement its
responses or provide Plaintiffs with a detailed account of its efforts to preserve, collect, and
search for potentially responsive information.
Nor does the Court find that the requirement is premature. We are now three years into
this litigation, almost no paper discovery has been produced and Defendant's witness has yet to
be deposed.
Based on the foregoing, the motion to vacate that part of this Court's prior order requiring
Defendant to provide a Jackson type affidavit is denied.
4/8/24 DATE HON. ALEXANDER M. TISCH, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
518161/2021 ARK512 DOE V DIOCESE OF BROOKLYN ET AL MOTION NO.002 Page 5 of 5
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