Motion to Dismiss in I.E. Doe v. Archdiocese Of New York, The Society Of St. Vincent De Paul Of The Archdiocese Of New York, The Roman Catholic Diocese Of Brooklyn, Heartshare St. Vincent'S Services, City Of New York, John And Jane Does 1-10| Trellis.Law

On August 13, 2021 a Motion,Ex Parte was filed involving a dispute between I.E. Doe, and Archdiocese Of New York, City Of New York, Heartshare St. Vincent'S Services, John And Jane Does 1-10, The Roman Catholic Diocese Of Brooklyn, The Society Of St. Vincent De Paul Of The Archdiocese Of New York, for Torts - Child Victims Act in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------X
I.E. DOE, Index No. 951391/2021

Plaintiff,

-against-

ARCHDIOCESE OF NEW YORK; THE SOCIETY OF ST.
VINCENT de PAUL OF THE ARCHDIOCESE OF NEW
YORK; THE ROMAN CATHOLIC DIOCESE OF
BROOKLYN; HEARTSHARE ST. VINCENT’S
SERVICES; CITY OF NEW YORK; JOHN and JANE
DOES 1-10, whose identities are presently unknown to
PLAINTIFF, in their official and individual capacities,
Defendants.
---------------------------------------------------------------------X

PLAINTIFF’S OPPOSITION TO
DEFENDANT ARCHDIOCESE OF NEW YORK’S MOTION TO DISMISS

THE ZALKIN LAW FIRM, P.C.
10 Times Square
1441 Broadway, Suite 3147
New York City, NY 10018
10590 W. Ocean Air Drive, Ste 125
San Diego CA 92130
Telephone: (858) 259-3011
Facsimile: (858) 259-3015
Attorneys for Plaintiff

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

LEGAL STANDARD ..................................................................................................................... 4

ARGUMENT .................................................................................................................................. 5

I. Plaintiff’s Claims Should Be Upheld Because No Documentary Evidence Refutes The
Allegations ............................................................................................................................... 5

A. The Archdiocese’s Affidavit Is Not “Documentary Evidence” Under CPLR § 3211(a)(1) 5
B. The Contents of the Archdiocese’s “Documentary Evidence” Do Not Provide a Defense
Warranting Dismissal of the Action ........................................................................................... 7
II. The Court Should Not Strike Any Language in the Complaint Under CPLR 3024 ............. 11

III. The Court Should Uphold Plaintiff’s Causes of Action for Negligent Supervision, Negligent
Hiring, and Negligent Failure to Train .................................................................................. 14

IV. The Court Should Uphold Plaintiff’s Cause of Action for Intentional Infliction of Emotional
Distress .................................................................................................................................. 16

V. The Court Should Keep Plaintiff’s Complaint Intact and Deny the Archdiocese’s Request to
Sever the Claims .................................................................................................................... 20

CONCLUSION ............................................................................................................................. 21

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TABLE OF AUTHORITIES

511 W. 232nd Owners Corp. v. Jennifer Realty Co.,
98 NY2d 144(2002)…………………………………………………………………………4

Al Rushaid v. Pictet & Cie,
28 NY3d 316……………………………………………………………….……………4, 11

Chanko v. Am. Broad. Companies Inc.,
27 N.Y.3d 46 (2016)…………………………………………………………….……….18

Connor v First Sec. Services Corp.,
135 AD2d 1131 (4th Dept. 1987)………………………………………………………..19

Cristallina S.A. v. Christie, Manson & Woods Int'l, Inc.,
117 A.D.2d 284 (1st Dept. 1986)……………………………………….…………………13

First Choice Plumbing Corp. v. Miller L. Offs., PLLC,
164 A.D.3d 756 (2d Dept. 2018) ………………………………….….....………………….5
Foley v. D'Agostino,
21 AD2d 60, (1st Dept. 1964)………………………………………………………………4

Flowers v. 73rd Townhouse LLC,
99 A.D.3d 431 (1st Dept. 2012) …………………………………....……….………...……6
Garcia v. Herald Tribune Fresh Air Fund,
51 AD2d 897, 897 (1st Dept. 1976)……………………………..……………………….6, 9

Goldman, Sachs & Co.,
5 NY3d 11, 19 (2005)………………………………………………….…………………..4

Gruber v Craig,
208 AD2d 900 (2d Dept. 1994)…………………………………………………………13

Hafnia Ham Co. v. Cheese Importing Co.,
13 Misc. 2d 733 (Sup. Ct. NY Cty. 1958)………………………………………………..12

Home Ins. Co. v Am. Home Products Corp.,
75 NY2d 196 (1990)…………………………………………………..…………………..13

Howell v New York Post Co., Inc.,
81 N.Y.2d 115 (1993)…………………………………………………….………………18

Integrated Const. Servs., Inc. v. Scottsdale Ins. Co.,
82 A.D.3d 1160 (2d Dept. 2011) …………………………………….…………...………5
J.P. Morgan Sec. Inc. v. Vigilant Ins. Co.,

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21 NY3d 324 (2013)……………………………………………………………….………..4

Kaminski v United Parcel Serv.,
120 AD2d 409 (1st Dept. 1986)………………………………………………..………….20

Koziatek v SJB Dev. Inc.,
172 A.D.3d 1486 (3d Dept. 2019) ………………………………………...………..………5
Landon v. Kroll Lab. Specialists, Inc.,
22 NY3d 1 (2013)………………………………………………………….………………..4

Leon v. Martinez,
84 NY2d 83 (1994)………………………………………………………………………….4

Magee-Boyle v. Reliastar Life Ins. Co. of New York,
173 A.D.3d 1157 (2d Dept. 2019) ………………………………...….………….…………5
Man Advisors, Inc. v Selkoe,
174 AD3d 435(1st Dept. 2019)………………………………………………..………14, 17

Mitchell v New York Hosp.,
61 NY2d 208 (1984)…………………………………………………………………..15, 17

New York City Health & Hosps. Corp. v. St. Barnabas Cmty. Health Plan,
22 A.D.3d 391 (1st Dept. 2005)…………………………………………………...………12

Perkins v Volpe,
146 AD2d 617 (2d Dept. 1989)………………………………………………………..15, 17

Phillips v. Taco Bell Corp.,
152 A.D.3d 806 (2d Dept. 2017) …………………………………….…………………..5, 6
Phoenix Grantor Tr. v. Exclusive Hosp., LLC,
172 A.D.3d 923 (2d Dept. 2019) ………………………………….……......……………5, 6
Pinks v. Turnbull,
25 Misc.3d 1245(A) (2009)………………………………………………………………..18

Raglan Realty Corp. v Tudor Hotel Corp.,
149 AD2d 373 (1st Dept. 1989)……………………………………………………….14, 17

Reed v New York State Electric & Gas Corp.,
183 AD3d 1207 (3d Dept. 2020)………………………………………….…….…………12

Rey v Park View Nursing Home, Inc.,
262 AD2d 624 (2d Dept. 1999)……………………………………………………………13

iii

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Saunders v. Taylor,
6 Misc. 3d 1015(A) (Sup. Ct. NY Cty. 2003)…………………………………..…………..9

Shephard v. Friedlander,
195 A.D.3d 1191 (3d Dept. 2021)……………………………………………..……………7

Suchmacher v. Manana Grocery,
73 A.D.3d 1017 (2d Dept. 2010)…………………………………………….…………….10

Summer v. Severance,
85 A.D.3d 1011, (2d Dept. 2011)……………………………………………..……………6

Torrey v. Portville Central School,
66 Misc.3d 1225(A) (Sup. Ct. Cattaraugus Cty. 2020)…………………………..……..6, 20

VXI Lux Holdco S.A.R.L. v SIC Holdings, Inc., LLC,
171 A.D.3d 189 (1st Dept. 2019) ………………………………..………....………………5
Westchester Cty. v. Town of Harrison,
85 N.Y.S.2d 374 (Sup. Ct. Westchester Cty. 1946)……………………………………….12

Wolkstein v. Morgenstern,
275 A.D.2d 635 (1st Dept. 2000)…………………………………………...……………..20

Zausner v. Fotochrome, Inc.,
36 Misc.2d 84 (Sup. Ct. NY Cty. 1962)……………………………………...……………11

Rules and Statutes
New York Civil Practice Law and Rules § 602……………………………………...…………..21
New York Civil Practice Law and Rules § 3014………………………………….…………14, 17
New York Civil Practice Law and Rules § 3017………………………………….…………14, 17
New York Civil Practice Law and Rules § 3024……………………………………………passim
New York Civil Practice Law and Rules § 3211 ………….………………………………..passim
Other Authorities
Dillon, Honorable Mark C., Practice Commentaries, McKinney’s Cons Laws of N.Y.
CPLR § 3211:5…………………………………….……………………………………...5

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INTRODUCTION

This is a lawsuit concerning the sexual abuse of a child in foster care, Plaintiff I.E. Doe

(“Plaintiff” or “Doe”), in two different foster care placements: by his foster parent in a private

foster family placement by the City of New York (“City”) and by a staff member at a residential

facility for boys, St. Vincent’s Hall (“St. Vincent’s”). Now an adult, Doe brought suit pursuant to

CPLR § 214-g (“Child Victim’s Act” or “CVA”), which revived previously time-barred civil

claims for childhood sexual abuse for one year, commencing on August 14, 2019.

Defendant Archdiocese of New York (“Archdiocese”) filed a confusing motion seeking to

dismiss the claims in Doe’s complaint on several grounds See NYSCEF Doc. Nos. 19-26 (“Mot.”).

First, the Archdiocese asserts that an affidavit from its general counsel and a deed to the property

at which St. Vincent’s was located establish defenses to the allegations in the complaint mandating

dismissal under CPLR § 3211(a)(1). Next, the Archdiocese argues that certain unidentified

language in the Complaint, as well as Plaintiff’s prayer for punitive damages, should be stricken

as prejudicial. The Archdiocese also argues that Doe’s negligence-based claims and his claim for

intentional infliction of emotional distress should be dismissed as duplicative. Finally, the

Archdiocese seeks severance of claims against it from claims against other defendants.

Even if the Archdiocese’s arguments can be construed into plausible assertions, they must

be denied. As a matter of law, sworn statements such as affidavits are not “documentary evidence”

that can establish a defense to a claim under CPLR § 3211(a)(1). Even if affidavits satisfied the

standard for “documentary evidence” under CPLR § 3211(a)(1) (they do not), the affidavit and the

deed submitted with the Archdiocese’s Motion fall far short of the type of unambiguous and

undeniable authentic evidence that the statute contemplates.

The Court cannot strike unidentified language in the Complaint. In fact, all of the language

in the Complaint is relevant and admissible to its claims e. Doe’s prayer for punitive damages is
1

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also proper given the allegations and supporting facts in the Complaint alleging willful and wanton

behavior of the Archdiocese. Next, none of Doe’s claims is duplicative of any other claims. And

Doe’s claims should be kept in a single complaint because they all seek damages for sexual abuse

inflicted on him by agents or employees of Defendants.

For all these reasons, the Motion must be dismissed in its entirety.

BACKGROUND

Doe’s claims stem from his sexual abuse as a minor in two different foster care placements.

Doe’s first sexual abuser was his foster parent Joseph Passereti (in whose home Doe was placed

by the City and St. Joseph’s Children and Family Services) when Doe was around 11 years old,

and his second abuser was Msgr. Harris at St. Vincent’s (which is now HSVS) when Doe was

around 16 years old.

When Doe was approximately 11 years old, the City (through the Administration for

Children’s Services (“ACS”)) and now-defunct St. Joseph’s Children and Family Services placed

Doe with a foster family. See Complaint (“Compl.”) ¶ 47 (NYSCEF Doc. No. 1). While Doe was

living with this foster family, Doe’s foster father, Joseph Passereti, forced Doe to kiss his genitals

and masturbate him multiple times. Id. ¶¶ 48-49. After some time in this foster home, Doe was

reunited with his mother for a brief period. Id. ¶ 55. In or around 1981, Plaintiff’s mother became

unable to care for Doe again, and Doe was placed in a residential facility known as St. Vincent’s

Home for Boys (St. Vincent’s), which was also known as St. Vincent’s Services. Id. ¶¶ 17, 56. St.

Vincent’s was founded by Defendant the Society of St. Vincent de Paul, Archdiocese of New York

(“Society”). Id. ¶ 17. Doe alleged that currently, and at the time of Doe’s abuse, the Archdiocese

exercised direct authority and control over Society. Id. ¶¶ 15-16. In or around 2014, St. Vincent’s

Services merged with Heartshare Human Services of New York, becoming formally known as

Heartshare St. Vincent’s Services (“HSVS”). Id. ¶ 28. At St. Vincent’s, Doe met Msgr. Harris,
2

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who had been assigned to work at St. Vincent’s by Defendant Roman Catholic Diocese of

Brooklyn (“Diocese”). Id. ¶¶ 57-58. In or around 1981, Msgr. Harris began to sexually abuse Doe

when Doe was a resident at St. Vincent’s. Id. ¶¶ 59-60. The abuse continued on at least five

occasions. Id. ¶ 62. On each occasion of abuse, an employee of St. Vincent’s brought Doe to Msgr.

Harris and Msgr. Harris’ assistant was present outside of that room in which Doe was being

sexually abused. Id. ¶¶ 60-61. Doe alleges that Msgr. Harris sexually abused other boys at St.

Vincent’s while Doe was living there and at least one other lawsuit under the CVA has been filed

based on such abuse. Id. ¶¶ 63-64.

Doe brings this action under the CVA against the Archdiocese, Society, Diocese, HSVS,

and City seeking redress for the sexual abuse he suffered at the hands of Passereti and Harris. Doe

brings a negligence claim against the City only, alleging that it breached its duty to protect him, a

foster child in their custody and care, by entrusting him to Passereti’s care and to St. Vincent’s

care and by failing to supervise Passereti and St. Vincent’s as foster care placements and Doe as a

foster child. Id. ¶¶ 87-92. Doe brings claims for negligent supervision, negligent hiring and

retention, and negligent failure to train against the Archdiocese, Diocese, Society, and HSVS,

alleging that these defendants breached their duties to Doe to protect him, as a foster child within

the care of their agencies and/or facilities, from the foreseeable criminal acts of their agents

Passereti and Harris and breached their duties to competently investigate, supervise, and train their

agents Passereti and Harris. Id. ¶¶ 105-130; 147-151; 172-175. Doe also brings a claim for

intentional infliction of emotional distress against the Archdiocese, Diocese, Society, and HSVS,

alleging that they engaged in reckless, extreme, and outrageous conduct by providing their agents

Passereti and Harris access to children, including Doe, despite knowing that these agents would

use their positions to sexually abuse him. Id. ¶ 188. Finally, Doe brings a claim against the

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Archdiocese, Diocese, Society, and HSVS for sexual battery and/or aiding and abetting battery.

Id. ¶¶ 196-203. Doe alleges that because of this conduct, he suffered severe emotional distress and

psychological injuries. See, e.g., id. ¶ 202.

LEGAL STANDARD

“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal

construction. We 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.” Al Rushaid v. Pictet & Cie, 28 NY3d 316, 326 (2016) (internal

citation omitted). This is black-letter law. See, e.g., J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21

NY3d 324, 334 (2013); Landon v. Kroll Lab. Specialists, Inc., 22 NY3d 1 (2013); EBC I, Inc. v.

Goldman, Sachs & Co., 5 NY3d 11, 19 (2005) (whether a plaintiff will ultimately be successful in

establishing the allegations “is not part of the calculus”); Leon v. Martinez, 84 NY2d 83, 88 (1994);

Foley v. D'Agostino, 21 AD2d 60, 63 (1st Dept 1964).

In giving Plaintiff’s allegations “every possible favorable inference,” the Court must keep

in mind that the fundamental question is “whether plaintiffs have a cause of action, not whether

they have properly labeled or artfully stated one.” Al Rushaid, 28 NY3d at 284-285 (citation

omitted) (emphasis added). The Motion “must be denied if from the pleadings’ four corners

‘factual allegations are discerned which taken together manifest any cause of action cognizable at

law.’” 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 (2002) (citations

omitted).

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ARGUMENT

I. PLAINTIFF’S CLAIMS SHOULD BE UPHELD BECAUSE THE ARCHDIOCESE
HAS NOT PROVIDED DOCUMENTARY EVIDENCE THAT REFUTES HIS
ALLEGATIONS

A. The Archdiocese’s Affidavit Is Not “Documentary Evidence” Under
CPLR § 3211(a)(1)

A motion pursuant to CPLR § 3211(a)(1) may be granted only if the documentary evidence

utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of

law. Koziatek v SJB Dev. Inc., 172 A.D.3d 1486 (3d Dept 2019). “Sequentially, a proffered

document must first be of the type that qualifies under the statute, and if so, the court then

determines whether its contents provide a defense warranting the dismissal of the action as a matter

of law.” Hon. Mark C. Dillon, Supplemental Practice Commentaries, McKinney's Cons Laws of

NY, CPLR C3211:5.

To qualify as documentary evidence, the evidence must be unambiguous, of undisputed

authenticity, and reflect content that is essentially undeniable. Koziatek, 172 AD3d at 1486; VXI

Lux Holdco S.A.R.L. v SIC Holdings, Inc., LLC, 171 A.D.3d 189, 193 (1st Dept 2019); Magee-

Boyle v. Reliastar Life Ins. Co. of New York, 173 A.D.3d 1157, 1159 (2d Dept 2019). Affidavits

and letters do not meet the requirements for documentary evidence. Id.; see also Phoenix Grantor

Tr. v. Exclusive Hosp., LLC, 172 A.D.3d 923, 924 (2d Dept 2019); First Choice Plumbing Corp.

v. Miller L. Offs., PLLC, 164 A.D.3d 756, 758 (2d Dept 2018); Phillips v. Taco Bell Corp., 152

A.D.3d 806, 807 (2d Dept 2017); Integrated Const. Servs., Inc. v. Scottsdale Ins. Co., 82 A.D.3d

1160, 1163 (2d Dept 2011).

The affidavit of Roderick J. Cassidy that the Archdiocese submitted with its Motion

(“Cassidy Aff.,” Mot., Ex. C) is not “documentary evidence” within the meaning of CPLR §

3211(a)(1). As a matter of law, affidavits cannot qualify as “documentary evidence” under CPLR

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§ 3211(a)(1). See, e.g., Phoenix Grantor Tr. v. Exclusive Hosp., LLC, 172 A.D.3d at 924; Phillips

v. Taco Bell Corp., 152 A.D.3d at 807 (“An affidavit is not documentary evidence because its

contents can be controverted by other evidence, such as another affidavit.”); Flowers v. 73rd

Townhouse LLC, 99 A.D.3d 431 (1st Dept 2012) (defendants’ affidavits were not “documentary

evidence” within the meaning of CPLR § 3211(a)(1)). The reasoning for excluding affidavits from

CPLR 3211(a)(1)’s reach is that affidavits are not “unambiguous, authentic, and undeniable” as

documentary evidence must be under CPLR § 3211(a)(1). See, e.g., Summer v. Severance, 85

A.D.3d 1011, 1012 (2d Dept 2011) (“In order to be documentary, the evidence must be

unambiguous, authentic, and undeniable; thus, affidavits are not considered documentary

evidence”). Courts have declined to consider affidavits as “documentary evidence” in CVA cases.

See, e.g., Torrey v. Portville Central School, 66 Misc.3d 1225(A), at *2 (Sup. Ct. Cattaraugus Cty.

Feb. 21, 2020) (denying motion to dismiss under CPLR § 3211(a)(1) because affidavits do not

conclusively establish a defense to plaintiff’s negligence claims as a matter of law). Especially as

applied to the Cassidy Affidavit, the exclusion of affidavits from the definition of “documentary

evidence” makes sense because the statements of Mr. Cassidy, as an agent of the Archdiocese, are

self-serving and do not conclusively dispose of Doe’s allegations. For example, Mr. Cassidy states

that “Neither St. Vincent’s nor Passereti were agents of the Archdiocese and neither had any

relationship with the Archdiocese of New York.” See Mot., Ex. C at ¶ 8. But Doe alleges an agency

relationship between Msgr. Harris and the Archdiocese. See Compl. ¶ 100. Therefore, the issue of

whether these individuals were in fact agents is a question of fact that makes the affidavit open to

more than one interpretation, and therefore inappropriate documentary evidence. See, e.g., Garcia

v. Herald Tribune Fresh Air Fund, 51 AD2d 897, 897 (1st Dept 1976). In addition, Doe has not

had a chance to challenge or cross-examine Mr. Cassidy about the contents of his affidavit.

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The authority that the Archdiocese relies on does not support its argument. The

Archdiocese misleadingly excerpts a quotation from the Court of Appeals’ decision in Rovello v.

Orofino Realty Co., 40 N.Y.2d 633 (1976), but the full relevant quotation in fact supports Doe’s

position. In Rovello, the Court of Appeals held that:

In sum, in instances in which a motion to dismiss made under CPLR 3211 (subd. (a), par.
7) is not converted to a summary judgment motion, affidavits may be received for a limited
purpose only, serving normally to remedy defects in the complaint, although there may be
instances in which a submission by plaintiff will conclusively establish that he has no cause
of action. It seems that after the amendment of 1973 affidavits submitted by the defendant
will seldom if ever warrant the relief he seeks unless too the affidavits establish
conclusively that plaintiff has no cause of action.

Id. at 636. In other words, the Court of Appeals circumscribed the situations in which an affidavit

submitted by a defendant would warrant dismissal to those cases in which “the affidavits establish

conclusively that plaintiff has no cause of action.” Here, as discussed above, Mr. Cassidy’s

affidavit does nothing of the sort.

B. The Contents of the Archdiocese’s “Documentary Evidence” Do Not Provide
a Defense Warranting Dismissal of the Action

Even if the Cassidy Affidavit could be considered “documentary evidence” under CPLR §

3211(a)(1), the contents of the affidavit would not conclusively establish a defense warranting

dismissal of the action. As explained above, a court may grant a motion seeking dismissal pursuant

to CPLR § 3211(a)(1) “only where the documentary evidence utterly refutes the plaintiff's factual

allegations, conclusively establishing a defense as a matter of law.” Shephard v. Friedlander, 195

A.D.3d 1191, 1193 (3d Dept 2021). To constitute documentary evidence, “the evidence must be

unambiguous.” Id.

The contents of the Cassidy Affidavit do not utterly refute Plaintiff’s allegations that the

Archdiocese owed him a duty. Relevant to this issue, Plaintiff alleges the following:

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• Msgr. Harris was an employee of and acting as an agent of the Archdiocese (Compl.

¶ 139);

• the Archdiocese had a duty to protect minors such as Plaintiff who encountered

their employees and agents, like Msgr. Harris (id. ¶ 141);

• the Archdiocese had a duty to investigate Msgr. Harris competently before

accepting him as its agent (id. ¶ 142); and

• the Archdiocese had a duty to train and educate children in itscare, including

Plaintiff, on inappropriate employee behavior and conduct, sexually inappropriate

employee behavior and conduct, and the sexual abuse of children, and to establish

effective policies and procedures to address these problems (id. ¶ 174).

To be clear, the source of the Archdiocese’s duty to Plaintiff for each of Plaintiff’s negligence-

based claims stems from the Archdiocese’s direct authority and control over Msgr. Harris and

Plaintiff, as well as its direct authority and control over the Society, which owned and operated St.

Vincent’s, as Plaintiff alleges. Id. ¶¶ 15-16, 129, 174. By the Archdiocese’s own admission,

Plaintiff has alleged both of the relationships that the Court of Appeals held creates a duty to

control: (1) a relationship between the Archdiocese and Harris (i.e., an agency and/or employment

relationship) that required the Archdiocese to attempt to control Harris’ conduct; and (2) a

relationship between the Archdiocese and Plaintiff that required the Archdiocese to protect

Plaintiff from the conduct of others. See Mot. ¶¶ 31 & 38, quoting Pulka v. Edelman, 40 N.Y.2d

781, 783 (1976).

Contrary to the Archdiocese’s attempt to argue otherwise, Plaintiff did in fact allege that

Msgr. Harris abused him while he was in the care and custody of St. Vincent’s, a residential facility

for boys, and that the Archdiocese exercised direct authority and control over St. Vincent’s and

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Harris. See Compl. ¶¶ 42, 56, 129. As such, the Archdiocese’s attempts to analogize this case to

cases such as Colon v. Board of Education, 156 A.D.2d 131 (1st Dept. 1989), lv. denied 75 N.Y.2d

708, and K.I. v. New York City Bd. of Educ., 256 A.D.2d 189 (1st Dept. 1996), are completely

misplaced. In those cases, as the Archdiocese freely admits, plaintiffs alleged that they were abused

outside of school premises and while they were in their parents’ custody. Here, Plaintiff alleges

that Msgr. Harris abused him while he was a residential student at St. Vincent’s and on school

premises—in Harris’ office and in the chapel at St. Vincent’s. See Compl. ¶¶ 59-62. No more is

required at this stage. See Saunders v. Taylor, 6 Misc. 3d 1015(A), at * 4 (New York Cty. Sup. Ct.

2003) (“There is no statutory requirement that causes of action sounding in negligent hiring,

retention, or supervision must be pled with specificity. An employer may be liable

for negligent hiring and retention when it knew or should have known of the

employee's propensity to commit injury and has a duty to investigate a prospective employee when

it knows of facts that would lead a reasonable prudent person to investigate.”).

Mr. Cassidy also states that St. Vincent’s was not “controlled or operated by the

Archdiocese in any way at any time relevant to the allegations in the Complaint,” that “the

Archdiocese did not “hire, retain, employ, oversee, or control the staff or employees at St.

Vincent’s,” and that St. Vincent’s was not an agent of the Archdiocese and had no relationship

with the Archdiocese. See Cassidy Aff., ¶¶ 5-6, 8. These words are inherently ambiguous, as an

entity can be controlled and operated in many ways not addressed in the Cassidy Affidavit—

through provision of direct instructions, adoption of policies and procedures, retention of the right

to appoint or control staff and employees, and/or provision of direct or indirect funding for many

different aspects of a facility’s operation. Questions of agency, control and operation are for the

factfinder and are not questions of law. See, e.g., Garcia v. Herald Trib. Fresh Air Fund, Inc., 51

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A.D.2d 897 (1st Dept 1976) (“If the question of agency is not open to doubt, it is one for the court.

But where no written authority of the agent has been proven, questions of agency and of its nature

and scope ... are questions of fact to be submitted to the jury under proper instructions by the

court.”) (internal quotation marks and citations omitted). Especially without granting Plaintiff the

opportunity to cross-examine Mr. Cassidy, the Court should not dismiss Doe’s well-pleaded claims

at this stage, when they are entitled to deference.

The deed to the property of St. Vincent’s that the Archdiocese submits in support of its

Motion similarly does not provide a defense warranting dismissal of the action. See Mot., Ex. B.

This deed merely reflects that the Diocese conveyed a parcel of property located at 66 Boerum

Place, Brooklyn, New York (the address at which Plaintiff alleges St. Vincent’s was located during

the time of the abuse, see Compl. ¶ 19) to St. Vincent’s Foundation in 1976. Id. The deed does not

establish that the Archdiocese did not administer, oversee, or supervise St. Vincent’s during the

relevant period, which Plaintiff alleges that it did. Id. Compl. ¶ 129. At most, the deed raises

questions about the nature and scope of the Archdiocese’s relationship with the Society and with

St. Vincent’s. These questions require discovery to be answered and are best left to the factfinder,

making dismissal of Plaintiff’s claims on this basis inappropriate at this stage. See, e.g.,

Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 1017–18 (2d Dept. 2010) (holding that a deed

by which appellant transferred to her son the title of the premises of the subject accident did not

refute plaintiffs’ allegation that the defendant “operated, managed and controlled” the premises).

Dismissal is especially inappropriate at this stage because Plaintiff has not been afforded

the chance to obtain discovery regarding the relationship between the Archdiocese and St.

Vincent’s, regarding whether the Archdiocese possessed any type of ownership interest, directly

or indirectly, in St. Vincent’s; or whether the Archdiocese operated or controlled St. Vincent’s or

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derived material benefits from its operation, including whether the Archdiocese had authority over

the Catholic personnel assigned to St. Vincent’s, regardless of whether it possessed an ownership

interest in the property on which St. Vincent’s was located. Until Plaintiff has had the opportunity

to explore these issues in discovery, he cannot respond to the self-serving statements in the Cassidy

Affidavit. At this stage, Plaintiff's allegations must be afforded the benefit of every possible

favorable inference (Al Rushaid, 28 NY3d at 326), and the documents that the Archdiocese submits

do not “utterly refute” these allegations. Consequently, dismissal under CPLR § 3211(a)(1) is not

warranted.1

II. THE COURT SHOULD NOT STRIKE ANY LANGUAGE IN THE COMPLAINT
UNDER CPLR 3024

The Court should decline to strike any language in the Complaint. The Archdiocese spills

much ink about the circumstances under which a court should strike scandalous or prejudicial

matter from an adversary’s pleadings. Unfortunately, the Archdiocese does not identify the

specific language that it asserts should be stricken. This failure alone is fatal to the Archdiocese’s

Motion on this point. See, e.g., Zausner v. Fotochrome, Inc., 36 Misc.2d 84, 85 (Sup. Ct. NY Cty.

1962) (denying motion to strike pursuant to predecessor statute of CPLR 3024 because the motion

“fails to specify any particular parts of the complaint, beyond entire causes of action, which are

sought to be stricken as either repetitious, redundant or immaterial”).

Although the Court should deny the Archdiocese’s motion because it suffers from a fatal

lack of clarity, were the Court to probe the merits of the Archdiocese’s request under CPLR

3024(b), it would find that this request fails on the merits as well. As one court put it, “[t]he power

of a court to strike irrelevant, redundant matters should be exercised with caution. To authorize the

1
Notably, Defendant City has also opposed the Archdiocese’s Motion on this point. (NYSCEF Doc. Nos. 28-31.)

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exercise of the court's discretion in that respect, the irrelevancy must be clear and the redundancy

unquestioned, and it also must appear that the moving party is aggrieved thereby.” Hafnia Ham

Co. v. Cheese Importing Co., 13 Misc. 2d 733, 733 (Sup. Ct. NY Cty. 1958). Under CPLR 3024(b),

material that would be admissible at trial should not be stricken. See, e.g., New York City Health

& Hosps. Corp. v. St. Barnabas Cmty. Health Plan, 22 A.D.3d 391, 391 (1st Dept. 2005) (“A

motion to strike scandalous or prejudicial material from a pleading (see CPLR 3024[b]) will be

denied if the allegations are relevant to a cause of action.”). In considering a motion under CPLR

3024(b), “all of the allegations of the pleading must be accepted as true, and given every fair

intendment and construction.” Westchester Cty. v. Town of Harrison, 85 N.Y.S.2d 374, 375 (Sup.

Ct. Westchester Cty. 1946).

Each allegation in the Complaint is relevant to Doe’s claims and will be admissible at trial.

Indeed, the Archdiocese is unable to identify a single word in Plaintiff’s Complaint that is

“inadmissible, unnecessary, irrelevant, and impermissible,” despite its conclusory statements to

the contrary. See Mot. ¶ 40. Nor has the Archdiocese shown how any of the statements in the

Complaint prejudice it, which is required to obtain relief under CPLR 3024(b). Hafnia, 12 Misc.

2d at 733.

In a confusing move, the Archdiocese asks the Court

Case Info

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Laurence L. Love Track Judge’s New Case

Case No.

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Document Filed Date

March 24, 2022

Case Filing Date

August 13, 2021

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Parties

Archdiocese of New York Defendant
BLAZOWSKI, MAUREEN P. Attorney for the Defendant
CATE, ELIZABETH ALEEN Attorney for the Plaintiff
City of New York Defendant
FELDSHON, ARIELLE ZOE Attorney for the Plaintiff
GILL, NICOLE MICHELLE Attorney for the Defendant
Heartshare St. Vincent's Services Defendant
I.E. DOE Plaintiff
John and Jane Does 1-10 Defendant
PEKNIC, CHARLES MARTIN Attorney for the Defendant
RAMDIET, GATLUAK BICHIOK Attorney for the Defendant
SCAHILL, FRANCIS J Attorney for the Defendant
SHUKRI, NAMEER SAAD Attorney for the Defendant
The Roman Catholic Diocese of Brooklyn Defendant
The Society of St. Vincent de Paul of the Archdiocese of New York Defendant
ZALKIN, IRWIN MYRON Attorney for the Plaintiff
RODERICK CASSIDY Attorney
DEVIN STOREY Attorney
RAN COHEN Attorney
JASON PAGET Attorneys for Defendants
JOHN KELLY Attorneys for Defendants
IRWIN MILLER Attorney
NICOLE MAGLIO Attorneys for Defendants
SEAN SCHAEFER Attorney

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Motion,Ex Parte: I.E. Doe v. Archdiocese Of New York, The Society Of St. Vincent De Paul Of The Archdiocese Of New York, The Roman Catholic Diocese Of Brooklyn, Heartshare St. Vincent'S Services, City Of New York, John And Jane Does 1-10

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