Pisula v. Roman Catholic Archdiocese of N.Y.

2021 NY Slip Op 06872

David Pisula, respondent, v. Roman Catholic Archdiocese of New York, et al., appellants, et al., defendant.

No. 2020-07018

Westchester County Index No. 69031/19

Supreme Court of New York, Second Department

December 8, 2021

Argued - October 4, 2021

D67715 T/htr

APPEAL by the defendant Roman Catholic Archdiocese of New York, and separate appeal by the defendant Church of Immaculate Heart of Mary, in an action, inter alia, to recover damages for negligence, from an order of the Supreme Court, Nassau County (Part CVA-R) (Steven M. Jaeger, J.), dated August 20, 2020. The order denied the motion of the defendant Roman Catholic Archdiocese of New York, joined by the defendant Church of Immaculate Heart of Mary, pursuant to CPLR 3024(b) to strike paragraphs 23 through 28 of the amended complaint on the ground that the allegations contained therein were irrelevant, scandalous, and prejudicial.

Motion by the plaintiff, inter alia, to dismiss the appeals on the ground that no appeal lies as of right from an order that refuses to strike scandalous or prejudicial matter from a pleading (see CPLR 5701[b][3]), and leave to appeal has not been granted. Cross motion by the defendant Roman Catholic Archdiocese of New York, and separate cross motion by the defendant Church of Immaculate Heart of Mary, for leave to appeal from the order dated August 20, 2020. By decision and order on motion of this Court dated June 3 2021, that branch of the plaintiff's motion which is to dismiss the appeals and the cross motions were held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Rivkin Radler, LLP, Uniondale, NY (Frank Raia and Cheryl F. Korman of counsel), for appellant Roman Catholic Archdiocese of New York.

Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, NY (Robert S. Nobel of counsel), for appellant Church of Immaculate Heart of Mary.

Grant & Eisenhofer, P.A., New York, NY (Barbara J. Hart, Irene R. Lax, and Samantha L. Breitner of counsel), for respondent.

MARK C. DILLON, J.P. LINDA CHRISTOPHER PAUL WOOTEN JOSEPH A ZAYAS, JJ.

OPINION & ORDER

DILLON, J.P.

This appeal presents an opportunity for our Court to discuss the interplay between CPLR 3024(b), which permits the striking of scandalous or prejudicial matter from pleadings, and the general pleading requirements of CPLR 3013 in the context of sex abuse claims brought under the recently-enacted CPLR 214-g.

I. Relevant Facts

The plaintiff alleges that he was sexually abused from 1965 through 1967, when he was 12 to 14 years old, by the defendant Edwin Gaynor, who was a physical education teacher and sports coach at the defendant Church of Immaculate Heart of Mary (hereinafter IHM) in Scarsdale. This action was commenced under the Child Victims Act (hereinafter CVA) against the defendants, Roman Catholic Archdiocese of New York (hereinafter the Archdiocese), IHM, and Gaynor, by a summons and complaint filed on November 19, 2019, and an amended complaint filed on February 21, 2020. The amended complaint alleges causes of action sounding in negligence, negligent training and supervision of employees, negligent retention of employees, intentional infliction of emotional distress, negligent infliction of emotional distress, assault, and premises liability. The plaintiff's "wherefore" clause includes prayers for awards of both compensatory and punitive damages.

The amended complaint specifically alleges, inter alia, that the Archdiocese and IHM (hereinafter together the defendants) knew or should have known of Gaynor's abuse of boys and that, despite such knowledge, they breached their duty by failing to protect the plaintiff from harm. As relevant to this appeal, paragraphs 23 through 28 of the amended complaint allege as follows:

"23. Upon information and belief, Gaynor writes, 'Re. David Pisula, I was not unkind to him in a couple of instances as claimed but I was guilty of molestation.'

"24. Upon information and belief, Defendant Gaynor recently admitted to molesting at least one additional boy in the 1960s while he was employed at IHM in a letter he sent to Plaintiff's counsel, received on December 16, 2019.

"25. Upon information and belief, Gaynor's letter stated: 'My confession as I recall I was sitting at my desk . . . he sat on my lap to use the phone (to call home for a ride, I think) and then I molested him.'

"26. Upon information and belief, Gaynor also stated that he was 'hoping' that writing a letter to a boy he abused years earlier 'would be the beginning of forgiveness and our getting back together in friendship as we enjoyed before my abuse 42 years before.'

"27. Upon information and belief, prior to becoming a gym teacher and coach at IHM, Gaynor sexually abused at least one other boy when he was a school coach at the Church of St. Bernard Parish School, in White Plains, in approximately 1959 to 1961.

"28. Upon information and belief, according to correspondence from Gaynor, dated July 26, 2014, to another survivor of his molestation who attended IHM, Gaynor 'coached basketball for 26 years and baseball, taught phys. ed., had a summer evening boys club 2 years, a day camp for 23 years, an overnight camp and a basketball camp for 8 years.'"

Paragraphs 23 and 28 of the amended complaint each included an embedded copy of handwritten letters dated December 12, 2019, and July 26, 2014, respectively, purportedly created and signed by Gaynor, which reflect the information quoted in those paragraphs of the amended complaint. The letter dated December 12, 2019, contains underlining beneath the words "I was guilty of molestation," but adds "as in my report re R.L.," and "I will get to the others . . . as soon as I can." The letter dated July 26, 2014, which is addressed to a recipient whose name is redacted, includes a statement, inter alia, that Gaynor "coached basketball for 26 years and baseball, taught phys. ed., had summer evening boys club 2 years, a day camp for 23 years, an overnight camp and a basketball camp for 8 years." The letter dated July 26, 2014, also contains a statement that "[s]omeone did a real job on me after my 3 years of coach [sic] with [redacted] at IHM and I think I know who started it. It was ignorant, cowardly, and vicious. But so it goes." Paragraph 26 of the amended complaint likewise includes an embedded copy of handwritten material signed by "Edwin Gaynor" on December 12, 2019, reflecting the statements attributed to him in the body of that same paragraph.

On February 25, 2020, the Archdiocese moved pursuant to CPLR 3024(b) to strike scandalous or prejudicial matter from the amended complaint. IHM submitted an affirmation of counsel in support of the Archdiocese's motion and, inter alia, adopted the exhibits submitted by the Archdiocese. The Archdiocese argued that paragraph 23 of the amended complaint referenced the alleged molestation of another survivor of sex abuse, R.L., and "others," which had no bearing upon the issues of liability raised in this action, and which was therefore irrelevant, scandalous, and prejudicial to the Archdiocese. The Archdiocese similarly argued that paragraphs 24, 25, and 26 were scandalous and prejudicial in that they alleged that Gaynor admitted molesting another boy in the 1960s, and quoted Gaynor's description of the molestation of R.L. The Archdiocese likewise objected to the allegations of paragraph 27 involving yet another sexual abuse survivor from a different school, of the Church of St. Bernard's Parish (hereinafter St. Bernard's), between and including 1959 and 1961. Further, the Archdiocese objected to the allegation in paragraph 28 that the recipient of Gaynor's letter dated July 26, 2014, was "another survivor of his molestation." The Archdiocese sought to strike from the amended complaint the copies of the letters embedded in these various paragraphs and the allegations making reference to them, on the ground that their inclusion was intended by the plaintiff to inflame and unduly influence the jury to the detriment of the defendants' right to a fair trial.

The plaintiff, in opposing the motion, argued that all information contained in the amended complaint was proper and relevant to overarching issues of actual and constructive notice; Gaynor's intent, motive, identity, modus operandi, and lack of mistake; the Archdiocese's conduct of moving sexual offenders from institution to institution; and punitive damages. The plaintiff contended that any factual allegations in a pleading which have any bearing upon the subject matter of the action cannot be stricken as a matter of law.

By order dated August 20, 2020, the Supreme Court denied the Archdiocese's motion, finding that the purported prejudicial information contained in paragraphs 23 through 28 of the amended complaint was all relevant to the plaintiff's claims of abuse, to the defendants' knowledge of the abuse, and as admissions or declarations against interest by Gaynor himself.

The defendants separately appeal from the Supreme Court's order. For reasons discussed below, we modify the order appealed from to the limited extent of deleting from paragraph 28 of the amended complaint the specific allegation that Gaynor's letter dated July 26, 2014, was "to another survivor of his molestation who attended IHM."

II. The Particulars of CPLR 3024(b)

Prejudicial language in a pleading might not necessarily be scandalous in a given action. Conversely, language in a pleading that is arguably scandalous in nature may not be prejudicial, if necessary to the nature of the pleading. "Scandalous" or "prejudicial" matters raised in a pleading should therefore be thought of in the disjunctive rather than the conjunctive. Scandalous...