PC-34 DOE v. Immaculate Conception Sch.
Opinion
PC-34 DOE v Immaculate Conception Sch.
2024 NY Slip Op 30339(U)
January 26, 2024
Supreme Court, New York County Docket Number: Index No. 950003/2021 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.
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/26/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. ALEXANDER M. TISCH PART 18 Justice
-X INDEX NO. 950003/2021 PC-34 DOE,
MOTION DATE 04/12/2021 Plaintiff,
MOTION SEQ. NO. 004 - V -
IMMACULATE CONCEPTION SCHOOL, IMMACULATE CONCEPTION CHURCH, THE ARCHDIOCESE OF NEW DECISION + ORDER ON YORK, MOTION
Defendants.
---------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 34, 35, 36, 37, 38,
39
were read on this motion to/for DISMISS
Upon the foregoing documents, defendant Archdiocese of New York (the "Archdiocese")
moves for an order pursuant to CPLR 321 l(a)(7) (a) dismissing the third cause of action, for negligent infliction of emotional distress; (b) the fourth cause of action, for premises liability; (c) the fifth cause of action, for breach of fiduciary duty; and (d) striking the reference to the doctrine of respondeat superior contained within paragraph 47 of plaintiffs negligent hiring, retention, supervision and direction cause of action (Motion Seq. 004).
Plaintiff commenced this action seeking to recover damages for personal injuries sustained from alleged sexual abuse by Mr. Garrett, an employee of defendants Immaculate Conception School, Immaculate Conception Church, and the Archdiocese. Plaintiff alleges that the abuse began in or about 1970 when plaintiff was 12 years old, and that the abuse occurred on the premises of Immaculate Conception School while Garrett was acting in his assigned role of teacher.
950003/2021 DOE, PC-34 vs. IMMACULATE CONCEPTION SCHOOL Motion No. 004 . Page 1 of 6
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NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/26/2024
Plaintiff did not oppose the instant motion. Additionally, defendants Immaculate Conception School and Immaculate Conception Church previously moved for dismissal of plaintiff's third and fifth claims for negligent infliction of emotional distress and breach of fiduciary duty. By Decision and Order dated September 11, 2023, this Court granted the motion and dismissed the third and fifth causes of action, finding they were, respectively, duplicative and insufficiently pled (NYSCEF doc No. 59). For the same reasons, the Court now dismisses both claims as against the Archdiocese and turns to the remaining branches of the Archdiocese's motion.
DISCUSSION
In determining a motion to dismiss a complaint pursuant to CPLR §321 l(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 AD3d 204 [1st Dept 2013]; Siegmund Strauss, Inc. v East 149th Realty Corp., 104 AD3d 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 AD2d 46 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v Blumberg, 242 AD2d 205,660 NYS2d 726 [1st Dept 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]).
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 AD3d 401, supra).
950~03/2021 DOE, PC-34 vs. IMMACULATE CONCEPTION SCHOOL Motion No. 004 Page 2 of 6
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NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/26/2024
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 AD3d 401, supra; Nonnon v City of New York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Leviton Manufacturing Co., Inc. v Blumberg, 242 AD2d 205 [1st Dept 1997]). Premises Liability
"In a premises liability case, the plaintiff must establish: (1) the existence of a defective condition, and (2) the defendant either created or had actual or constructive notice of the defect" (see Ingram v. COSTCO Wholesale Corp., 117 A.D.3d 685, 985 N.Y.S.2d 272 [2d Dept. 2014]). Plaintiff has alleged defendants had a duty to ensure the school was in a reasonably safe condition and defendants breached that duty by negligently failing to ensure the school was free of sexual predators, such as Mr. Garrett.
New York has upheld premises liability claims in sexual assault cases in circumstances where property owners failed to adequately secure their premises from outside assailants. In Gonzalez v Riverbay Corp., 150 AD3d 535 (1 st Dept 2014), the plaintiff alleged a premises liability claim against her co-op building complex after an individual snuck into the building's laundry room and assaulted her. The First Department, noting that the perpetrator had similarly entered other buildings in the complex before, held that the plaintiff raised an issue of fact regarding "whether defendants discharged their common-law duty to take minimal precautions to protect the tenants from foreseeable harm" (id. at 536 [internal citations omitted]).
Here, in contrast to cases such as Gonzalez, plaintiff is not arguing that defendants inadequately secured their property from intruders but contends defendants were negligent in allowing someone with known proclivities for abuse to work on their property. The allegations
950~03/2021 DOE, PC-34 vs. IMMACULATE CONCEPTION SCHOOL Motron No. 004 Page 3 of 6
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NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/26/2024
under plaintiffs premises liability claim thus duplicate those under his negligent hiring, retention, and supervision claim. In Nouel v 335 Wadsworth Reality LLC, 112 AD3d 493 (1st Dept 2013), the plaintiff sued an apartment building after being assaulted by a porter who was a registered sex offender. The First Department dismissed that plaintiffs premises liability claim, holding that "although couched as a premises liability claim," it "is merely duplicative of the negligent hiring, retention, and supervision claims" asserted against the building (id. at 494).
Similarly, premises liability claims in CVA cases premised on a negligent failure to supervise employees in CV A cases have been subject to dismissal, such as in Fay v Troy City Sch. Dist., 197 AD3d 1423 (3rd Dept 2021 ), involving abuse by the defendant school district's swim coach in which the Third Department dismissed plaintiffs claim for premises liability against the school district (id. at 1424 ["The conduct complained of in the causes of action for premises liability . . . falls entirely within the scope of plaintiffs separate causes of action for negligence, negligent supervision and negligent retention ... [the premises liability claim] must be dismissed as duplicative of the negligence, negligent supervision and negligent retention claims ... "]). Accordingly, this Court dismisses plaintiffs cause of action for premises liability against all defendants as duplicative.
The Complaint's reference to "respondeat superior"
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