Doe v. Archdiocese of N.Y.

1

2023 NY Slip Op 31384(U)

PC-3 DOE, Plaintiff, v. ARCHDIOCESE OF NEW YORK, ST. JAMES THE APOSTLE/OUR LADY OF THE LAKE MOUNT CARMEL, ST. JOSEPH CATHOLIC CHURCH, THE SISTERS OF THE DIVINE COMPASSION OF THE STATE OF NEW YORK, JOHN F. KENNEDY CATHOLIC HIGH SCHOOL, Defendants.

Index No. 950359/2020, Motion Seq. Nos. 002, 003

Supreme Court, New York County

April 25, 2023

Unpublished Opinion

MOTION DATE 05/06/2021, 05/06/2021.

PRESENT: HON. ALEXANDER M. TISCH, Justice.

DECISION + ORDER ON MOTION

ALEXANDER M. TISCH, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 27, 37, 40, 41, 42, 43, 44 45, 46, 51, 52, 53, 54, 55, 61, 62, 63, 64, 65, 66, 68 were read on this motion to/for DISMISS.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 30, 31, 32, 33, 47, 56, 57, 58, 59, 60, 67 were read on this motion to/for DISMISS.

Upon the foregoing documents, defendant Archdiocese of New York moves pursuant to CPLR 3211 (a) (7) to dismiss plaintiffs third and fourth causes of action, asserting negligent infliction of emotional distress (NIED) and breach of fiduciary duty (BFD), respectively, and "striking any reference to the doctrine of respondeat superior contained within plaintiffs negligent hiring, retention, supervision and direction cause of action" (NYSCEF Doc No 22) and defendant Sisters of the Devine Compassion of the State of New York cross-moves for the same relief (motion sequence no 002). Defendants St. James the Apostle/Our Lady of the Lake Mount Carmel, St. Joseph Catholic Church, and John F. Kennedy Catholic High School (Church and School) move pursuant to CPLR 3211 (a) (7) to dismiss the third and fourth causes of action.

Plaintiffs complaint alleges that he was sexually abused by Father Stinner beginning around 1985 when he was approximately 11-12 years old. The complaint alleges that plaintiff was a parishioner with the Church and attended the School, and that the alleged abuser was employed and/or otherwise under the control and direction of the defendants.

In determining dismissal under CPLR Rule 3211 (a) (7), the "complaint is to be afforded a liberal construction" (Goldfarb v Schwartz, 26 A.D.3d 462, 463 [2d Dept 2006]). The "allegations are presumed to be true and accorded every favorable inference" (Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]). "[T]he sole criterion is 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" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]). Additionally, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman. Sachs & Co.. 5 N.Y.3d 11,19 [2005]).

"A breach of the duty of care 'resulting directly in emotional harm is compensable even though no physical injury occurred' when the mental injury is 'a direct, rather than a consequential, result of the breach' and when the claim possesses 'some guarantee of genuineness'" (Ornstein v New York City Health & Hosps. Corp.. 10 N.Y.3d 1, 6 [2008], quoting Kennedy v McKesson Co.. 58 N.Y.2d 500, 504, 506 [1983] and Ferrara v Galluchio. 5 N.Y.2d 16, 21 [1958] [internal citations omitted]). "The latter element may be satisfied where the particular type of negligence is recognized as providing an assurance of genuineness, as in cases involving the mishandling of a corpse or the transmission of false information that a parent or child had I died" (Taggart v Costabile. 131 A.D.3d 243, 253 [2d Dept 2015]). "However, in the absence of such specific circumstances, the guarantee of genuineness 'generally requires that the breach of the duty owed directly to the injured party must have at least endangered the plaintiffs physical safety or caused the plaintiff to fear for his or her own physical safety'" (kf, quoting 1-2 Warren's Negligence in New York Courts § 2.04 [1] [a]; see Doe v Langer, 206 A.D.3d 1325, 1331 [3d Dept 2022], quoting A.M.P. v Benjamin, 201 A.D.3d 50, 57 [3d Dept 2021] ["A cause of action for negligent infliction of emotional distress generally requires the plaintiff to show a breach of a duty owed to him or her which unreasonably endangered his or her physical safety, or caused him or her to fear for his or her own safety"] [internal quotations omitted]). Additionally, unlike intentional infliction of emotional distress, "extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress" (Brown v New York Design Ctr., Inc., - A.D.3d -, 2023 NY Slip Op 01228, 3-4 [1st Dept Mar. 9, 2023]; Taggart v Costabile, 131 A.D.3d 243, 253-56 [2d Dept 2015]).

Here, the third count for NIED alleges that the sexual abuse endured by plaintiff "was extreme and outrageous conduct" and that defendants' negligent, grossly negligent, and/or reckless conduct caused plaintiff severe emotional distress (see NYSCEF Doc No 1 at ¶¶ 83-86). However, the Court finds that the allegations and theory of negligence are essentially the same for the preceding negligence claims and, because plaintiff may recover for emotional distress in those claims, the NIED cause of action is essentially duplicative (see Fay v Troy City School Dist., 197 A.D.3d 1423, 1424 [3d Dept 2021]).

A fiduciary relationship may exist when plaintiffs relationship with a church extends beyond that of an ordinary parishioner (see Doe v Holy See State of Vatican City], 17 A.D.3d 793, 795 [3d Dept 2005]). In other words, a fiduciary relationship between a plaintiff parishioner and church may exist where the plaintiff comes forward with facts demonstrating that the relationship between the plaintiff parishioner and the church is unique or distinct from the church's relationship with other parishioners generally (id.). That said, a fiduciary relationship is not applicable to all parishioners, and may be established upon a showing that a congregant's relationship with a church entity resulted in "de facto control and dominance" when the congregant was "vulnerable and incapable of self-protection regarding the matter at issue" (Marmelstein v Kehillat New Hempstead. 11 N.Y.3d 15, 22 [2008]). Here, plaintiff alleges that he was a parishioner with the Church and attended the School, and that Stinner acted as a sports coach. Plaintiff alleges that Stinner assaulted plaintiff under the guise of inspecting an injury that plaintiff incurred from his football practice. However, the Court finds...