K.O. v. YMCA Buffalo Niagara

2023 NY Slip Op 06619

K.O., PLAINTIFF-APPELLANT, v. YMCA BUFFALO NIAGARA, DEFENDANT-RESPONDENT, ET AL., DEFENDANT.

No. 809 CA 22-01580

Supreme Court of New York, Fourth Department

December 22, 2023

HERMAN LAW, P.A., NEW YORK CITY (STUART S. MERMELSTEIN OF COUNSEL) FOR PLAINTIFF-APPELLANT.

PHILLIPS LYTLE LLP, BUFFALO (RYAN A. LEMA OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: WHALEN, P.J., MONTOUR, OGDEN, AND NOWAK, JJ.

Appeal from an order of the Supreme Court, Niagara County (Deborah A. Chimes, J.), entered March 28, 2022. The order granted the motion of defendant YMCA Buffalo Niagara to dismiss the complaint against it without prejudice.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint against defendant YMCA Buffalo Niagara insofar as it alleges that defendant Lockport Family YMCA was an agent of YMCA Buffalo Niagara and as modified the order is affirmed without costs.

Memorandum Plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214-g) alleging that he was sexually assaulted by employees of defendant Lockport Family YMCA (YMCA Lockport) while attending a youth swimming program from 1967 to 1977. Defendant YMCA Buffalo Niagara (YMCA Buffalo) moved to dismiss the complaint against it pursuant to CPLR 3211 (a) (1) and (7), arguing that it was a separate and distinct entity from YMCA Lockport and that it was not liable for the alleged torts of YMCA Lockport's employees during the relevant time period. In response, plaintiff argued that YMCA Buffalo failed to establish that YMCA Lockport was not its agent at the time plaintiff was injured or that YMCA Buffalo was not liable as a successor entity following its de facto merger with YMCA Lockport. Supreme Court determined that YMCA Buffalo's documentary evidence established that it did not assume the liabilities of YMCA Lockport and that the complaint failed to state a cause of action on a theory of successor liability. The court thus granted the motion and dismissed the complaint against YMCA Buffalo without prejudice. Plaintiff appeals.

Plaintiff contends that the court erred in granting that part of the motion seeking dismissal of the complaint against YMCA Buffalo pursuant to CPLR 3211 (a) (1) insofar as the complaint alleges that YMCA Buffalo is liable for the negligence of YMCA Lockport because YMCA Buffalo failed to establish via documentary evidence that YMCA Lockport was not its agent at the time of the alleged abuse. We agree, and we therefore modify the order accordingly. In support of its motion, YMCA Buffalo submitted the deeds to the property at which the alleged abuse occurred, the certificates of incorporation for both YMCA Buffalo and YMCA Lockport, and the affidavit of its President and Chief Executive Officer. The deeds and certificates of incorporation do not conclusively establish the absence of a principal-agent relationship between YMCA Buffalo and YMCA Lockport (see J.A.F. v Roman Catholic Archdiocese of N.Y., 216 A.D.3d 454, 454-455 [1st Dept 2023]; J.D. v Archdiocese of N.Y., 214 A.D.3d 561, 561 [1st Dept 2023]; see generally Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]). Further, the affidavit "does not constitute sufficient documentary evidence for the purpose of a pre-answer CPLR 3211 (a) (1) motion" (J.D., 214 A.D.3d at 561).

Plaintiff further contends that the court erred in determining that the complaint failed to adequately allege that YMCA Buffalo is liable as a successor entity based on its de facto merger with YMCA Lockport. We reject that contention. Generally "a corporation which acquires the assets of another is not liable for the torts of its predecessor" (Dutton v Young Men's Christian Assn. of Buffalo Niagara 207 A.D.3d 1038, 1039 [4th Dept 2022] [internal quotation...