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. INDEX NO. 950003/2021 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.
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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).
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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
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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
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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. INDEX NO. 950003/2021 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
[* 1] 1 of 6 INDEX NO. 950003/2021 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).
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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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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"
Plaintiffs first cause of action alleges negligent hiring, supervision, and direction. While
the Archdiocese does not seek dismissal of this claim entirely, the Archdiocese argues that
Paragraph 47 under this claim impermissibly alleges liability predicated on the doctrine of
reaspondeat superior. Paragraph 47 states that "[a]t all relevant times, Mr. Garrett acted in the
course and scope of his employment with Defendants."
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It is well settled under New York Law that generally, acts of sexual abuse are considered
to be "not within the scope or furtherance of the employment" (Mazzarella v Syracuse Diocese,
100 AD3d 1384, 1385 [4th Dept 2012] at 1385 ["sexual abuse by clergy"]; see also Doe v Rohan,
17 AD3d 509, 512 [2rd Dept 2005] ["[s]ince the bus driver's acts of sexual abuse and molestation
were a clear departure from the scope of his employment, committed solely for personal reasons,
and unrelated to the furtherance of his employer's business, neither the bus company nor the
School District can be held vicariously liable for his acts"]; NX v Cabrini Med Ctr., 97 NY2d at
251 ["[a] sexual assault perpetrated by a hospital employee is not in furtherance of hospital
business and is a clear departure from the scope of employment, having been committed for wholly
personal motives"]; Nevaeh T v City of New York, 132 AD3d 840, 843 [2nd Dept 2015] [alleged
sexual misconduct by a teacher was not committed in furtherance of the DO E's business and not
within the scope of employment]; Doe 1 v Bd. ofEduc. ofGreenport Union Free School Dist., 100
AD3d 703, 705 [2d Dept 2012] [a school district was not vicariously liable where a teacher's aide
allegedly engaged in a sexual relationship with a student "off school premises and/or outside
school hours," and where "the conduct ... was personally motivated [] and constituted a complete
departure from her duties as a school district employee"]). Given that the conduct alleged by
Garrett in Plaintiffs complaint constitutes a departure from his scope of employment under New
York law, the doctrine of respondeat superior is not applicable and the Court grants the final branch
of the Archdiocese's motion and deems Paragraph 47 stricken.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the motion of defendant Archdiocese of New York for partial dismissal
pursuant to CPLR 321 l(a)(7) (Motion Seq. 004) is granted in its entirety; and it is further
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ORDERED that the third, fourth, and fifth causes of action in the complaint are dismissed
against all defendants; and it is further
ORDERED that Paragraph 47 of the complaint is stricken; and it is further
ORDERED that counsel for defendant Archdiocese of New York shall serve a copy of
this order along with notice of entry on all parties within 14 days.
1/26/2024 DATE ALEXANDER M. TISCH, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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