Spotlight on Abuse: St. Paul's Episcopal Church, Flushing

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS W.E., Plaintiff, - against -

Index No.: 400002/2021 Mot. Seq. No. 002

THE EPISCOPAL DIOCESE OF LONG ISLAND, Defendant.

DEFENDANT THE EPISCOPAL DIOCESE OF LONG ISLAND’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS

JAMES W. WELLER, ESQ. 65 Fourth Street Garden City, NY 11530 (516) 524-1151 NIXON PEABODY LLP 1300 Clinton Square Rochester, New York 14604 (585) 263-1000 Attorneys for Defendant the Episcopal Diocese of Long Island

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TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF FACTS ..............................................................................................................2 LEGAL STANDARD ......................................................................................................................3 ARGUMENT ...................................................................................................................................4 POINT I PLAINTIFF HAS NOT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE DIOCESE ...........................................................................................4 A. Plaintiff Has Not Alleged The Existence Of A Duty Owed By The Diocese Because Plaintiff Has Not Alleged That The Diocese Had Physical Custody Of And Control Over Him .......................................................................................................................5 B. Plaintiff Has Not Alleged The Existence Of A Duty Owed By The Diocese Because Plaintiff Has Not Offered Facts From Which It Reasonably Can Be Inferred That The Diocese Had Actual or Constructive Notice That the Unidentified Priest Was Likely to Assault Plaintiff .........................................................................................................6 C. Any Alleged Negligence by the Diocese Was Not the Proximate Cause of Plaintiff’s Alleged Injuries .............................................................................................8 POINT II PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION ..........................................................10 POINT III PLAINTIFF HAS FAILED TO STATE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS .............................................................12 A. Plaintiff Fails to Allege What Specific Duty the Diocese Breached ...........................13 B. There Is No Allegation of a Direct Causal Link Between The Diocese’s Alleged Negligence and Plaintiff’s Alleged Emotional Distress ..............................................14 CONCLUSION ..............................................................................................................................15

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TABLE OF AUTHORITIES Page(s) Cases Blumenfeld v. Stable 49 Ltd., 62 Misc.3d 1208(A) (Sup. Ct. N.Y. Cnty. 2018) .......................................................................3 Cannonball Fund Ltd. v. Marcum & Kliegman, LLP, 110 A.D.3d 417 (1st Dep’t 2013) ......................................................................................10, 15 Cozzani v. County of Suffolk, 84 A.D.3d 1147 (2d Dep’t 2011) ...............................................................................................7 Davidovici v. Fritzson, 49 A.D.3d 488, 4890 (2d Dep’t 2008) .......................................................................................8 Doe v. Alsaud, 12 F. Supp. 3d 674, 677-78 (S.D.N.Y. 2014) ............................................................................9 Dragon Head LLC v. Elkman, 102 A.D.3d 552 (1st Dep’t 2013) ............................................................................................11 Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610 (1st Dep’t 2015) ..............................................................................................7 Gershon v. Goldberg, 30 A.D.3d 372 (2d Dep’t 2006) .................................................................................................3 Godfrey v. Spano, 13 N.Y.3d 358 (2009) ..............................................................................................................11 Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001) ..............................................................................................................13 Herman v. Greenberg, 221 A.D.2d 251 (1st Dep’t 1995) ............................................................................................11 Howard v. Lecher, 42 N.Y.2d 109 (1977) ..............................................................................................................12 Jamal P. v. City of N.Y., 24 A.D.3d 301 (1st Dep’t 2005) ................................................................................................6 Jones by Jones v. Trane, 591 N.Y.S.2d 927, 932-33 (Sup. Ct. Onondaga Ct. 1992) ........................................................8

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Kalmanash v. Smith, 291 N.Y. 142 (1943) ..................................................................................................................4 Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D. 2d 159 .............................................................................................................9, 10, 12 Kenneth S. v. Berkshire Farm Ctr. & Servs. For Youth, 36 A.D.3d 1092 (3d Dep’t 2007) .......................................................................................12, 14 Kunz v. New Netherlands Routes, Inc., 64 A.D.3d 956, 958 (3d Dept 2009) ......................................................................................8, 9 Mataxas v. N. Shore Univ. Hosp., 211 A.D.3d 762, 763 (2d Dep’t 1995) .......................................................................................9 M.J. & K. Co., Inc. v. Matthew Bender and Co., Inc., 220 A.D.2d 488 (2d Dep’t 1995) ...............................................................................................7 Naegele v. Archdiocese of N.Y., 39 A.D.2d 270 (1st Dep’t 2007) ............................................................................................. 11 N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251 (2002) ....................................................................................................8, 9 O’Neil v. Roman Catholic Diocese of Brooklyn, 31 Misc.3d 1219(A), 927 N.Y.S.2d 818 (Sup. Ct. Kings Cnty. 2011), aff’d, 949 N.Y.S.2d 447 (2d Dep’t 2012) ..........................................................................................13 Paul J.H. v. Lum, 291 A.D.2d 894, 895 (4th Dep’t 2002) ......................................................................................9 People v. Munck, 937 N.Y.S.2d 334 (3d Dep’t 2011) ............................................................................................5 Peters v. Accurate Bldg. Inspectors Div. of Ubell Enter., Inc., 29 A.D.3d 972 (2d Dep’t 2006) .................................................................................................3 Pinks v. Turnbull, 25 Misc. 3d 1245(A), 2009 N.Y. Slip Op. 52594(U), at *4 (Sup. Ct. N.Y. Cty. 2009) ..........................................................................................................................................9 Pratt v. Robinson, 39 N.Y.2d 554 (1976) ................................................................................................................5 Pulka v. Edelman, 40 N.Y.2d 781 (1976) ..........................................................................................................4, 14 Roe v. Domestic and Foreign Missionary Soc. of the iii 4 of 20

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Protestant Episcopal Church, No. 900049/2019 (Sup. Ct. Nassau Cnty. June 26, 2020) .......................................................13 Rutkowski v. Wasko, 143 N.Y.S.2d 1 (3d Dep’t 1955) ................................................................................................5 Sacino v. Warwick Valley Cent. Sch. Dist., 138 A.D.3d 717 (2d Dep’t 2016) .............................................................................................12 Shu Yuan Huang v. St. John’s Evangelical Lutheran Church, 129 A.D.3d 1053 (2d Dep’t 2015) ...................................................................................... 7, 11 Solomon v. City of New York, 66 N.Y.2d 1026 (1985) ..............................................................................................................4 Spielman v. Carrino, 77 A.D.3d 816, 818 (2d Dep’t 2010) .........................................................................................9 Stormes v. United Water N.Y., Inc., 84 A.D.3d 1352 (2d Dep’t 2011) ...............................................................................................4 Other Authorities CPLR § 3211(a)(7) ......................................................................................................................1, 3

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Defendant the Episcopal Diocese of Long Island (the “Diocese”) respectfully submits this Memorandum of Law in support of its Motion to Dismiss the Complaint of Plaintiff W.E. (“Plaintiff”) dated January 11, 2021 (the “Complaint” or “Compl.”) (NYSCEF No. 1) in its entirety, pursuant to CPLR § 3211(a)(7).1 PRELIMINARY STATEMENT The claims in this action arise out of the sexual assault that Plaintiff alleges he endured at the hands of an unidentified priest more than 50 years ago. Plaintiff contends that this priest was affiliated with St. Paul’s Episcopal Church of College Point (“St. Paul’s”), a church which closed many years ago and to which Plaintiff does not allege any affiliation. The unidentified priest is not a party to this suit and the Complaint is scant with allegations concerning any conduct by the Diocese.

Despite the vague and ambiguous nature of the Complaint, Plaintiff seeks damages against the Diocese for negligence; negligent hiring, retention, and supervision: and negligent infliction of emotional distress. However, these claims cannot withstand a motion to dismiss pursuant to CPLR § 3211(a)(7) for several independent reasons.

Plaintiff’s negligence cause of action against the Diocese fails for at least two substantive reasons. First, Plaintiff has not alleged that the Diocese ever exercised custody and control over him such that they owed him a duty to protect him from harm. Absent such a duty, a negligence cause of action cannot stand. Second, Plaintiff has not alleged that the Diocese had actual or constructive knowledge that Plaintiff’s alleged abuser was likely to abuse Plaintiff. Instead, Plaintiff simply concludes, without any factual support, that the Diocese “knew and/or reasonably should have known, and/or knowingly condoned, and/or covered up, the 1

A true and correct copy of the Complaint is attached to the Affirmation of James W. Weller, Esq., dated March 19, 2021, as Exhibit A.

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inappropriate and unlawful sexual activities of Episcopal Priest Doe, who sexually abused Plaintiff.” (Compl. ¶ 79.) This sort of conclusory pleading is not sufficient. Absent allegations tending to establish that the Diocese knew or should have known of a need to protect Plaintiff from the alleged abuse, Plaintiff has again failed to allege a duty on the part of the Diocese.

Finally, the horrific criminal acts by a third party broke the causal chain between any alleged negligence by the Diocese and the Plaintiff’s injures.

Plaintiff’s negligent hiring and retention cause of action fails for similar reasons. Again, Plaintiff does not allege any facts concerning the Diocese’s alleged knowledge of the unidentified priest’s purported propensity to abuse minors.

Plaintiff’s negligent infliction of emotional distress cause of action likewise fails for the same reason. Plaintiff has not alleged any facts concerning the Diocese’s actual or constructive knowledge of the unidentified priest’s alleged propensity to sexually assault minors.

Each of the failures mentioned above is fatal to Plaintiff’s Complaint against the Diocese.

Therefore, Plaintiff’s Complaint as against the Diocese must be dismissed in its entirety.

STATEMENT OF FACTS2 The claims in this action arise out of the deplorable sexual assault that Plaintiff alleges he endured as a child, approximately 53 years ago, allegedly at the hands of a member of the clergy affiliated with St. Paul’s. The Complaint purports to allege causes of action for negligence; negligent hiring, retention and supervision; and negligent infliction of emotional distress. (See generally, Compl.)

2

The Diocese does not admit any allegations in the Complaint. Only for purposes of this motion, the Diocese sets forth certain allegations in the Complaint solely to give the Court background and context. The Diocese reserves all rights concerning admitting or denying specific allegations in the Complaint if or when such responses are required. Thus, whenever a factual statement is made herein that is attributed to the Complaint, it should be presumed to be a statement “as alleged in the Complaint.”

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In support of his claims, Plaintiff alleges that when he was 16 years old he was sexually abused four (4) or five (5) times over a multi-month period by a priest who is neither identified nor described.3 (See generally, Compl.) Plaintiff alleges that while in foster care he visited and stayed with his biological father in Queens in the summer of 1967 when the first incident occurred. (Id. ¶¶ 2, 47-54.) Plaintiff describes walking past the front of St. Paul’s and being approached by a man dressed in priest garb who then lured him inside the church and sexually assaulted him. (Id. 47-54). Following the initial attack, Plaintiff alleges three (3) to four (4) additional assaults by that same priest over the next several months. The church at which the abuse is alleged to have occurred closed its doors between 2014 and 2017. (Id. ¶ 26).

LEGAL STANDARD CPLR § 3211(a)(7) provides: “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . the pleading fails to state a cause of action.” In reviewing a motion to dismiss for failure to state a cause of action, a court’s “sole criterion is whether from the complaint’s four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law.” Gershon v. Goldberg, 30 A.D.3d 372, 373 (2d Dep’t 2006) (internal quotation and citation omitted); see also Peters v. Accurate Bldg. Inspectors Div. of Ubell Enter., Inc., 29 A.D.3d 972, 973 (2d Dep’t 2006). “The facts pleaded are to be presumed to be true and are to be [afforded] every favorable inference, although bare legal conclusions . . . are not entitled to any such consideration.” Gershon, 30 A.D.3d at 373. “A claim is inadequately pleaded if the complaint lacks adequate factual averments.” Blumenfeld v. Stable 49 Ltd., 62 Misc.3d 1208(A) * 9 (Sup. Ct. N.Y. Cnty. 2018) 3

At one point in the Complaint, Plaintiff alleges that the abuse occurred over a period of time lasting five (5) to six (6) months (Compl. ¶ 4); at another, he alleges the abuse lasted five (5) to seven (7) months (id. ¶ 54).

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(citing Stormes v. United Water N.Y., Inc., 84 A.D.3d 1352, 1352-53 (2d Dep’t 2011)). Thus, “[a] pleading which, fairly construed, fails to allege any facts which constitute a wrong but only general conclusions, is entirely insufficient and may be dismissed on that ground.” Kalmanash v. Smith, 291 N.Y. 142, 153 (1943) (internal quotations and emphasis omitted).

ARGUMENT POINT I PLAINTIFF HAS NOT STATED A NEGLIGENCE CAUSE OF ACTION AGAINST THE DIOCESE To state a prima facie negligence cause of action, a plaintiff must allege facts sufficient to establish that: (1) the defendant owed plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered an injury proximately resulting from that breach. See Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). Absent a legally cognizable duty of care owed to the plaintiff, a negligence cause of action cannot stand and must be dismissed for failure to state a cause of action. Pulka v. Edelman, 40 N.Y.2d 781, 782 (1976) (“In the absence of duty, there is no breach and without a breach there is no liability.”).

Plaintiff’s negligence cause of action must be dismissed because it does not allege facts sufficient to establish that the Diocese owed Plaintiff a duty of care for two independent reasons: (1) Plaintiff has not alleged that the Diocese had physical custody of and control over Plaintiff, and (2) Plaintiff has not alleged that the Diocese had actual or constructive notice that the unidentified priest was likely to assault Plaintiff. Therefore, Plaintiff has failed to state a prima facie negligence cause of action against the Diocese and his first cause of action for negligence must be dismissed.

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A. Plaintiff Has Not Alleged The Existence Of A Duty Owed By The Diocese Because Plaintiff Has Not Alleged That The Diocese Had Physical Custody Of And Control Over Him. Where a negligence claim is brought against a non-parent custodian for failure to protect a child from harm, a duty to prevent harm to the child exists only when the custodian retains “physical custody of and control over the child.” See Pratt v. Robinson, 39 N.Y.2d 554, 560 (1976). Plaintiff does not allege that he was a member of the St. Paul’s congregation or was otherwise placed into the care of either the Diocese, St. Paul’s, or the unidentified priest who allegedly assaulted him. Instead, he alleges that he was a stranger to all three. The Complaint is completely devoid of any facts suggesting that the Diocese or St. Paul’s ever retained physical custody of and control over Plaintiff. (See generally, Compl.) Therefore, Plaintiff’s negligence cause of action against the Diocese must be dismissed.

New York courts have defined in loco parentis—i.e., the non-parental custodial relationship that may give rise to a duty to protect—as referring “to a person who has fully put himself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who actually discharges those obligations.” Rutkowski v. Wasko, 143 N.Y.S.2d 1, 5 (3d Dep’t 1955) (emphasis in original); see also People v. Munck, 937 N.Y.S.2d 334, 341 (3d Dep’t 2011) (“The Court of Appeals and all Appellate Division Departments have followed that definition [set forth in Rutkowski].”). “The assumption of the parental relationship is largely a question of intention which should not lightly or hastily be inferred, but which may be shown by the acts and declarations of the person alleged to stand in that relation.” Rutkowski, 143 N.Y.S.2d at 5.

Plaintiff does not allege that he was entrusted by his parents or guardian to the care of the unidentified priest or the Diocese. (See generally, Compl.) Instead, he contends that he walked on his own to the area outside St. Paul’s where he was accosted. Indeed, there are no allegations -5-

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regarding either contact between Plaintiff’s parents and the priest or the Diocese or even any indication that his parents or guardian had any knowledge that he was at St. Paul’s Church. (See generally, id.) Similarly, Plaintiff does not allege that the Diocese was ever aware of his existence or alleged presence on St. Paul’s property. (See generally, id.)

Given the complete lack of allegations setting forth facts from which it reasonably can be inferred that the Diocese assumed a position of in loco parentis over Plaintiff and thus owed him a duty of care, Plaintiff has failed to plead the first element necessary to state a cause of action for negligence and his purported first cause of action for negligence against the Diocese should be dismissed on that basis.

B. Plaintiff Has Not Alleged The Existence Of A Duty Owed By The Diocese Because Plaintiff Has Not Offered Facts From Which It Reasonably Can Be Inferred That The Diocese Had Actual or Constructive Notice That the Unidentified Priest Was Likely to Assault Plaintiff.

Even if, arguendo, Plaintiff has alleged that the Diocese somehow had physical custody of and control over him (he has not and they did not), Plaintiff has nevertheless failed to allege the existence of a legally cognizable duty on the part of the Diocese to protect Plaintiff from the alleged sexual assault. “To prevail on [a] cause of action predicated on ordinary negligence in failing to protect [an] infant plaintiff against alleged sexual assaults, plaintiffs must establish (1) that defendant was provided with actual or constructive notice that such assaults might be made upon the infant plaintiff so as to give rise to a duty to protect him.” Jamal P. v. City of N.Y., 24 A.D.3d 301, 303 (1st Dep’t 2005). Plaintiff has not met this pleading requirement and his failure to do so is fatal to his negligence cause of action against the Diocese.

Plaintiff has not alleged any facts concerning the Diocese’s actual or constructive knowledge that Plaintiff might be sexually assaulted by a priest, whose identity has not been provided. For example, Plaintiff does not allege any facts concerning prior instances of sexual -6-

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abuse of others by such priest (much less prior instances that the Diocese knew about), that anyone from the Diocese ever saw this priest abusing Plaintiff, or that Plaintiff or anyone acting on Plaintiff’s behalf ever told the Diocese about any instances of alleged abuse by this priest.

(See generally, Compl.) Instead, Plaintiff alleges, in purely conclusory and boilerplate fashion, that “Defendant Diocese knew or should have known, or was negligent in not knowing, that Episcopal Priest Doe posed a threat of sexual abuse to children generally and to Plaintiff specifically.” (See id.at ¶ 99.) These types of conclusory statements are insufficient to state a cause of action for negligence against the Diocese absent any factual allegations to support them.

See, e.g., Cozzani v. County of Suffolk, 84 A.D.3d 1147, 1147 (2d Dep’t 2011) (granting motion to dismiss on grounds that complaint set forth only legal conclusions that were “wholly unsupported by any allegations of fact”); M.J. & K. Co., Inc. v. Matthew Bender and Co., Inc., 220 A.D.2d 488, 490 (2d Dep’t 1995) (granting motion to dismiss and noting that conclusions in complaint that are “offered with no factual basis to support the allegations” are insufficient to state a cause of action); Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610, 615 (1st Dep’t 2015) (dismissing cause of action where plaintiff failed to offer allegations of fact supporting conclusory statements in complaint that defendant possessed knowledge that plaintiff sought to impute to defendant). Plaintiff’s failure to allege facts tending to establish that the Diocese knew or had reason to know of the unidentified priest’s alleged deviant nature, therefore, is fatal to his negligence cause of action and that claim should be dismissed as against the Diocese. See Shu Yuan Huang v. St. John’s Evangelical Lutheran Church, 129 A.D.3d 1053, 1054 (2d Dep’t 2015) (dismissing claim on basis that the plaintiff failed to sufficiently allege that the defendants knew or should have known of a propensity on the part of their employee to commit sexual assault).

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There is not a single factual allegation in the Complaint to support the conclusion that the Diocese had knowledge or reasonably should have had knowledge about the unidentified priest’s alleged propensity to prey on minors. (See generally, Compl.) Absent these sorts of allegations, Plaintiff has not stated a cause of action for negligence against the Diocese and his purported negligence cause of action should be dismissed on this additional basis.

C. Any Alleged Negligence by the Diocese Was Not the Proximate Cause of Plaintiff’s Alleged Injuries.

Separate and apart from the above, the negligent count is defective for failing to establish prima facie that any alleged negligence by the Diocese was the proximate cause of plaintiff’s damages. Davidovici v. Fritzson, 49 A.D.3d 488, 490 (2d Dep’t 2008) (granting motion to dismiss pursuant to CPLR § 3211(a)(7) because “complaint fails to contain sufficient allegations which it reasonably could be found that the allegedly negligent hiring and supervision of Fritzson was a proximate cause of damages”).

Instead, Plaintiff alleges independent criminal actions and resulting injuries by an unidentified priest. Those actions necessarily sever any claimed negligence by the Diocese.

Proximate cause does not exist and the Diocese cannot be held responsible for those independent and intervening acts. Sexual assault is “a clear departure from the scope of employment, having been committed for wholly personal motives” and “not in furtherance of [an employer’s] business.” N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251 (2002). Thus, an employer cannot be held vicariously liable for an employee’s sexual assault. See id.; see also Kunz v. New Netherlands Routes, Inc., 64 A.D.3d 956, 958 (3d Dep’t 2009) (collecting cases); Jones by Jones v. Trane, 591 N.Y.S.2d 927, 932-33 (Sup. Ct. Onondaga Cty. 1992) (observing that “[n]o New York case has been cited in which an employer has been held vicariously liable for intentional sexual misconduct by an employee”). New York courts “consistently have held that sexual -8-

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misconduct and related tortious behavior arise from personal motives and do not further an employer’s business, even when committed within the employment context.” Doe v. Alsaud, 12 F. Supp. 3d 674, 677-78 (S.D.N.Y. 2014) (collecting cases).

Likewise, courts have repeatedly held that sexual abuse of minors by church employees occurs outside the scope of employment and does not further an employer’s interests. See, e.g., Kenneth R., 229 A.D.2d at 161 (citing precedent and noting that the Supreme Court dismissed a vicarious liability claim against the Diocese of Brooklyn for alleged childhood sexual abuse by a priest); Paul J.H. v. Lum, 291 A.D.2d 894, 895 (4th Dep’t 2002) (no respondeat superior liability against diocese for sexual abuse of a minor by a priest).

Accordingly, courts dismiss claims, such as the one Plaintiff asserts here, against employers (including churches), based on alleged intentional acts of sexual abuse committed by individuals as they “act[ed] outside the scope of [their] employment.” See, e.g., Spielman v.

Carrino, 77 A.D.3d 816, 818 (2d Dep’t 2010) (dismissing a claim for intentional infliction of emotional distress against church defendant for alleged sexual assault by its pastor); Mataxas v.

N. Shore Univ. Hosp., 211 A.D.2d 762, 763 (2d Dep’t 1995) (“Therefore, as a matter of law, the hospital may not be held vicariously liable for the acts of the technician” in assaulting and sexually abusing a hospital patient); Kunz, 64 A.D.3d at 958 (affirming dismissal of sexual assault and battery claims under respondeat superior doctrine because those acts are outside the scope of employment); Pinks v. Turnbull, 25 Misc. 3d 1245(A), 2009 N.Y. Slip Op. 52594(U), at *4 (Sup. Ct. N.Y. Cty. 2009) (Boys’ Choir of Harlem is not “responsible pursuant to a theory of respondeat superior for [sexual assault and battery of a minor committed by] its employee . . ., [as these acts] were clearly outside the scope of his employment” (citing N.X. and Kenneth R.)).

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Any alleged conduct by the Diocese did not directly cause Plaintiff’s injuries, because any damages sustained by Plaintiff was the result of the independent criminal assault by an unidentified priest, which broke the requisite causal nexus. See Cannonball Fund Ltd., 110 A.D.3d 417, 417 (1st Dep’t 2013) (“[D]ismissal for failure to allege proximate cause is appropriate on a motion to dismiss for failure to state a cause of action, if the allegations warrant such a determination”).

POINT II PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION To state a negligent hiring and retention cause of action under New York law, a plaintiff must allege not only the standard elements of negligence but also that (1) the tortfeasor and the defendant were in an employee-employer relationship, and (2) that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury prior to the injury’s occurrence. See Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D. 2d 159, 161 (2d Dep’t 1997.

Plaintiff has failed to state a negligent hiring, retention and supervision cause of action because, as noted above, Plaintiff has not alleged any facts concerning the Diocese’s actual or constructive knowledge of the unidentified priest’s alleged propensity to sexually assault minors.

(See supra at Point III.B.) In an attempt to plead around this requirement, Plaintiff makes the bold, factually unsupported allegation that: “upon information and belief, Episcopal Priest Doe sexually abused numerous other children while employed and/or acting as an agent under Defendant Diocese.” (Compl. ¶129.) Given that Plaintiff admits that he cannot identify the attacker there is simply no good-faith basis upon which such an unsupported allegation can be made. Rank speculation, like this, does not satisfy minimal pleading standards. Godfrey v.

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Spano, 13 N.Y.3d 358, 373 (2009) (“Although on a motion to dismiss plaintiff’s allegations are presumed to be true and accorded every favorable inference, conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss.” (emphasis added)); Dragon Head LLC v. Elkman, 102 A.D.3d 552, 552 (1st Dep’t 2013) (“Plaintiff’s allegations . . . are not entitled to be deemed true, since they consist of bare legal conclusions and factual assertions that are flatly contradicted by the documentary evidence…”); Herman v. Greenberg, 221 A.D.2d 251, 251 (1st Dep’t 1995) (“While on [a motion to dismiss] facts pleaded are presumed to be true and given every favorable inference, bare legal conclusions and factual claims that [are] either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration.”).

Plaintiff has woefully failed to sufficiently allege the second essential element of a negligent hiring, retention and supervision cause of action and this cause of action should be dismissed.4 See Shu Yuan Huang, 129 A.D.3d at 1054 (dismissing claim on basis that the plaintiff failed to sufficiently allege that the defendants knew or should have known of a propensity on the part of their employee to commit sexual assault).

In a further attempt to avoid this pleading requirement, Plaintiff seeks to impose a duty to investigate on the Diocese, asserting that “[u]pon information and belief, Defendant Diocese did not conduct any investigation into Episcopal Priest Doe’s sexually abusive behaviors.” (Compl. ¶ 121.) This purported duty, however, is contrary to established New York law as “[t]here is no

4

To the extent Plaintiff purports to allege that the Diocese had a duty to supervise the unidentified priest (see Compl. ¶ 119), the lack of factual allegations concerning the Diocese’s alleged knowledge is also fatal to a cause of action for negligent supervision. Naegele v.

Archdiocese of N.Y., 39 A.D.2d 270, 270 (1st Dep’t 2007) (holding conclusory allegations concerning employer’s knowledge of employee’s alleged propensity to commit the tortious acts alleged failed to establish a necessary element of a negligent supervision claim and “negates the employer’s liability as a matter of law”).

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common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.” Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 163 (2d Dep’t 1997) (emphasis added). Because Plaintiff has not offered any factual allegations supporting an inference that the Diocese was aware of facts concerning the unidentified priest that would lead a reasonably prudent person to investigate him, the Diocese was not under the duty Plaintiff seeks to impose upon it.

POINT III PLAINTIFF HAS FAILED TO STATE A CLAIM FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS “A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of duty owed to him which unreasonably endangered his physical safety, or caused [him] to fear for [his] own safety.” Sacino v. Warwick Valley Cent. Sch. Dist., 138 A.D.3d 717, 719 (2d Dep’t 2016). Furthermore, Plaintiff must allege a “causal link between defendant’s alleged negligence and . . . alleged subsequent physical abuse” by a third-party. Kenneth S. v. Berkshire Farm Ctr. & Servs. For Youth, 36 A.D.3d 1092, 1094 (3d Dep’t 2007) (emphasis in original) (granting motion to dismiss negligent infliction of emotional distress claim because the “requisite causal link” between defendant’s purported negligence and the alleged abuse plaintiff suffered was “patently lacking”); Howard v. Lecher, 42 N.Y.2d 109, 111-12 (1977) (“We have held that there may be recovery for the emotional harm . . . to one subject directly to the negligence of another as long as the . . . injury . . . was proximately caused by the defendant’s conduct.”).

Plaintiff fails to state a claim for negligent infliction of emotional distress because (1) the Complaint does not adequately plead the specific duty owed to Plaintiff which was purportedly - 12 -

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breached by the Diocese and (2) the Complaint fails to adequately plead the requisite causal link between the Diocese’s supposed breach and the damages allegedly suffered.

A. Plaintiff Fails to Allege What Specific Duty the Diocese Breached.

“It is axiomatic that, without a duty to act with reasonable care to avoid harm to another, there can be no actionable negligence.” O’Neil v. Roman Catholic Diocese of Brooklyn, 31 Misc.3d 1219(A), at *3, 927 N.Y.S.2d 818 (Sup. Ct. Kings Cnty. 2011), aff’d, 949 N.Y.S.2d 447 (2d Dep’t 2012). “The injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her, for without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm.” Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (2001) (finding gun manufacturers did not owe duty to plaintiff victims of gun violence); see also O’Neil, 31 Misc.3d 1219(A) at *4 (recognizing that despite the possibility of sexual abuse by priests, a diocese did not have a duty to protect all persons from such abuse).

Here, Plaintiff’s claim for negligent infliction of emotional distress fails as a matter of law because Plaintiff has not identified what specific duty was owed to Plaintiff. See, e.g., Roe v. Domestic and Foreign Missionary Soc. of the Protestant Episcopal Church, No. 900049/2019 (Sup. Ct. Nassau Cnty. June 26, 2020) (Dkt. No. 53). In an effort to meet this standard, Plaintiff alleges that “by placing Episcopal Priest Doe in a position of power wherein he could meet children and work in close proximity to them, Defendant Diocese acted in a negligent and/or grossly negligent manner.” (Compl. ¶148.) But the only duty Plaintiff alleges was breached by this conduct is one the Diocese owed to the “community” or “parents and children” generally.

Thus, Plaintiff’s allegations fail because the duty pled must be owed directly to the injured person, not society as a whole. Even if it would be foreseeable that the unidentified priest might

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engage in conduct endangering a child, such as Plaintiff, the Court of Appeals has been axiomatic in recognizing that “foreseeability should not be confused with duty.” Pulka v.

Edelman, 40 N.Y.2d 781, 785 (1976).

B. There Is No Allegation of a Direct Causal Link Between The Diocese’s Alleged Negligence and Plaintiff’s Alleged Emotional Distress.

Separately, Plaintiff’s claim for negligent infliction of emotional distress must also be dismissed because he has failed to demonstrate how the Diocese’s purported negligence was the proximate cause of his alleged injuries. As a matter of law, here, the Diocese cannot be liable for the independent criminal acts of a third party. The case law on this is clear. For example, in Kenneth S. v. Berkshire Farm, plaintiffs alleged the defendant hospital, by permitting a social worker to visit their daughter in the hospital in violation of its visitation rules, was liable for the social worker’s sexual abuse of their daughter at a separate, later event. 36 A.D.3d 1092, 1093 (3d Dep’t 2007). The court found that the plaintiffs failed to allege the requisite proximate cause linking the defendant’s alleged negligence to the subsequent physical abuse, emphasizing that the social worker’s conduct was an “independent criminal assault which broke the requisite causal nexus between defendant’s purported negligent conduct” and the plaintiffs’ daughter’s injuries. Id. at 1094. Thus, the court granted defendant’s motion to dismiss because the plaintiffs “fail[ed] to allege injuries that were a direct, rather than a consequential, result of defendant’s alleged breach of its duty.” Id. Here, even if the Court assumes the alleged negligence of the Diocese in not taking action against the unidentified priest, that negligent conduct did not directly cause Plaintiff’s injuries; there remains no nexus between the Diocese’s alleged negligence and Plaintiff’s assault and injuries. Plaintiff’s injuries were the result of an independent criminal assault which broke the requisite causal nexus.

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Because Plaintiff fails to allege how his emotional distress was a “direct, rather than a consequential result” of the Diocese’s purported conduct, the cause of action for negligent infliction of emotional distress should be dismissed. See Cannonball Fund Ltd. v. Marcum & Kliegman, LLP, 110 A.D.3d 417, 417 (1st Dep’t 2013) (“[D]ismissal for failure to allege proximate cause is appropriate on a motion to dismiss for failure to state a cause of action, if the allegations warrant such a determination.”).

CONCLUSION For the foregoing reasons, Defendant the Episcopal Diocese of Long Island respectfully requests that its Motion to Dismiss be granted in its entirety, that Plaintiff W.E.’s Complaint be dismissed in its entirety, with prejudice, and that the Court grant any further and additional relief that it deems just and proper.

Dated: March 19, 2021 Garden City, New York

Respectfully submitted, JAMES W. WELLER, ESQ. By: /s/ James W. Weller____________ 65 Fourth Street Garden City, New York 11530 Tel (516) 524-1151 Fax: (516) 877-1439 jweller@dioceseli.org NIXON PEABODY LLP By: /s/ Eric Ferrante Eric M. Ferrante 1300 Clinton Square Rochester, New York 14604 Tel: (585) 263-1000 Fax: (844) 698-5849 eferrante@nixonpeabody.com Attorneys for Defendant the Episcopal Diocese of Long Island

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