Forbes v. Poly Prep Country Day Sch.

220 A.D.3d 750

198 N.Y.S.3d 147

Christopher FORBES, respondent,

v.POLY PREP COUNTRY DAY SCHOOL, appellant, et al., defendants.

2022–09813

Index No. 511956/20

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 15, 2023

October 11, 2023

Seyfarth Shaw, LLP, New York, NY (Karen Y. Bitar, Matthew Catalano, and David J. Winkler of counsel), for appellant.

Abend & Silber, PLLC (Hasapidis Law Offices, South Salem, NY [Annette G. Hasapidis ], of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, CARL J. LANDICINO, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the defendant Poly Prep Country Day School appeals from an order of the Supreme Court, Kings County (Laurence L. Love, J.), dated October 19, 2022. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the causes of action alleging negligence and negligent hiring, retention, and supervision insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In July 2020, the plaintiff commenced this action pursuant to the Child Victims Act (hereinafter the CVA) against, among others, the defendant Poly Prep Country Day School (hereinafter Poly Prep), alleging that from approximately 1969 to 1971, while he was a student at Poly Prep, he was sexually abused by a football coach employed by Poly Prep. The complaint asserted causes of action sounding in, inter alia, negligence, including negligent supervision of the plaintiff, and negligent hiring, retention, and supervision of the football coach. Poly Prep moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against it. In an order dated October 19, 2022, the Supreme Court, among other things, denied those branches of Poly Prep's motion which were to dismiss the causes of action alleging negligence and negligent hiring, retention, and supervision insofar as asserted against it. Poly Prep appeals.

"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired" ( Haddad v. Muir, 215 A.D.3d 641, 642, 186 N.Y.S.3d 669 ; see Schearer v. Fitzgerald, 217 A.D.3d 980, 981, 192 N.Y.S.3d 207 ). On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, a 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 within any cognizable legal theory" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Davila v. Orange County, 215 A.D.3d 632, 633, 187 N.Y.S.3d 261 ).

The Supreme Court properly denied those branches of Poly Prep's motion which were to dismiss the causes of action alleging negligence and negligent hiring, retention, and supervision insofar as asserted against it on the ground that the CVA violates the Due Process Clause of the New York State Constitution. CPLR 214–g, enacted as part of the CVA, provides a revival window for "civil claims or causes of action alleging intentional or negligent acts or omissions that seek to recover for injuries suffered as a result of conduct which would constitute sex crimes, which conduct was committed against a child less than 18 years of age, for which the statute of limitations had already run" ( S.H. v. Diocese of Brooklyn, 205 A.D.3d 180, 184, 167 N.Y.S.3d 171 ; see Anonymous v. Castagnola, 210 A.D.3d 940, 941, 178 N.Y.S.3d 587 ). "[A] claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice" ( Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 400, 67 N.Y.S.3d 547, 89 N.E.3d 1227 ). Contrary to Poly Prep's contention, the revival of civil claims and causes of...