Novak v. Sisters of the Heart of Mary

210 A.D.3d 1104

180 N.Y.S.3d 187

William NOVAK, appellant,

v.SISTERS OF the HEART OF MARY, respondent.

2021–08710

Index No. 515756/20

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

Argued—October 28, 2022

November 30, 2022

Pfau Cochran Vertetis Amala, PLLC, New York, NY (Anelga Doumanian of counsel), for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Michael O'Brien, pro hac vice, and Nicholas M. Guance of counsel), for respondent.

BETSY BARROS, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for negligence and intentional infliction of emotional distress, the plaintiff appeals from an order of the Supreme Court, Kings County (George J. Silver, J.), dated September 20, 2021. The order granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint is denied.

The plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214–g ). He alleged that, while he was a child attending St. Ephrem Roman Catholic Parish School in Brooklyn, he was sexually abused by a priest, who was an employee and/or an agent of the defendant, Sisters of the Heart of Mary. The plaintiff asserted causes of action sounding in negligence, including negligent supervision of the plaintiff and negligent hiring, retention, and supervision of the priest, and intentional infliction of emotional distress.

The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint. In an order dated September 20, 2021, the Supreme Court granted the defendant's motion. The plaintiff appeals.

On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), 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 Boyle v. North Salem Cent. Sch. Dist., 208 A.D.3d 744, 172 N.Y.S.3d 621 ; Doe v. Enlarged City Sch. Dist. of Middletown, 195 A.D.3d 595, 596, 144 N.Y.S.3d 639 ). "Whether a plaintiff can ultimately establish [his or her] 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, 799 N.Y.S.2d 170, 832 N.E.2d 26 ).

An employer can be held liable under theories of negligent hiring, retention, and supervision where the complaint alleges that "the employer knew or should have known of the employee's propensity for the conduct which caused the injury" ( Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161, 654 N.Y.S.2d 791 ; see Boyle v. North Salem Cent. Sch. Dist., 208 A.D.3d at 745, 172 N.Y.S.3d 621 ). Causes of action alleging negligence based upon negligent hiring, retention, or supervision are not statutorily required to be pleaded with specificity (see Boyle v. North Salem Cent. Sch. Dist., 208 A.D.3d at 745, 172 N.Y.S.3d 621 ; Doe v. Enlarged City Sch. Dist. of Middletown, 195 A.D.3d at 596, 144 N.Y.S.3d 639 ; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d at 162, 654 N.Y.S.2d 791 ).

Moreover, a school "has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" ( Destiny S. v. John Quincy Adams Elementary Sch., 98 A.D.3d 1102, 1102, 951 N.Y.S.2d 217 ; see Nancy Ann O. v. Poughkeepsie City School Dist., 95 A.D.3d 972, 973, 944 N.Y.S.2d 251 ). "The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians" ( Visiko v. Fleming, 199 A.D.3d 1431, 1432, 158 N.Y.S.3d 483 [internal quotation marks omitted]; see BL Doe 3 v. Female Academy of the Sacred Heart, 199 A.D.3d 1419, 1422–1423, 158 N.Y.S.3d 474 ).

The complaint alleged, inter alia, that the plaintiff was a student of St. Ephrem Roman Catholic Parish School, which was operated by the defendant. It also alleged that the priest who allegedly abused the plaintiff was an employee and/or an agent of the defendant, that the defendant had knowledge that the priest was abusing students, including the plaintiff, or that he had the propensity to abuse, and that the sexual abuse of the plaintiff occurred during school activities and during times at which the plaintiff was under the defendant's supervision and care, custody, and control. Here, at the pleading stage of the litigation where the plaintiff's allegations in the complaint are treated as true and are accorded the benefit of every possible favorable inference, the complaint is sufficiently pled as to the causes of action to recover damages for negligence, including the negligent hiring, retention, and supervision of the priest (see Doe v. Enlarged City Sch. Dist. of Middletown, 195 A.D.3d at 596, 144 N.Y.S.3d 639 ), and inadequate supervision of the plaintiff (cf. Destiny S. v. John Quincy Adams Elementary Sch., 98 A.D.3d at 1102, 951 N.Y.S.2d 217 ; Nancy Ann O. v. Poughkeepsie City School Dist., 95 A.D.3d at 973, 944 N.Y.S.2d 251 ). The Supreme Court, therefore, should have denied that branch of the defendant's motion which was to dismiss the cause of action to recover damages for negligence (see Boyle v. North Salem Cent. Sch. Dist., 208 A.D.3d at 745, 172 N.Y.S.3d 621 ).

"The elements of intentional infliction of emotional...