Episcopal Priest William Ducharme

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------------------------------X DOES 1-4, Index No.: 400004/2021 Plaintiffs, - against –

Motion Sequence No. 002

EPISCOPAL DIOCESE OF LONG ISLAND, THE EPISCOPAL CHURCH, NY, SAINT MARGARET OF SCOTLAND EPISCOPAL CHURCH, NY, LAWRENCE C. PROVENZANO and WILLIAM DUCHARME,

Hon. Donnamarie Golia

Defendants.

---------------------------------------------------------------X

REPLY MEMORANDUM OF LAW IN SUPPORT OF THE EPISCOPAL CHURCH’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

BIEDERMANN HOENIG SEMPREVIVO, A PROFESSIONAL CORPORATION Megan Siniscalchi Attorneys for Defendant The Episcopal Church i/s/h/a The Episcopal Church, NY 60 East 42nd Street, Suite 660 New York, New York 10165 T: (646) 218-7560

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TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................................... i-iii PRELIMINARY STATEMENT .....................................................................................................1 ARGUMENT ...................................................................................................................................2 I

PLAINTIFFS FAIL TO DEMONSTRATE THAT THE COMPLAINT SHOULD NOT BE DISMISSED PURSUANT TO CPLR § 3211(a)(1) BASED ON THE DOCUMENTARY EVIDENCE SUBMITTED ....................................2 A. The Affidavit of Rev. James Was Properly Submitted with TEC’s Motion and Should be Considered by the Court ........................................................................2 B. Plaintiffs Fail to Refute That the Documentary Evidence Shows that TEC Owed No Duty to Plaintiffs ...................................................................................4 i. Plaintiffs Fail to Address TEC’s Argument That Plaintiffs Were Not In the Care, Custody and Control of TEC At the Time of the Alleged Abuse ........4 ii. TEC Did Not Exert Control Over Ducharme or the Local Diocese and Parishes with Respect to Priests .............................................................................................5

II PLAINTIFFS FAIL TO ESTABLISH THAT THE COMPLAINT SHOULD SURVIVE A MOTION TO DISMISS UNDER CPLR § 3211(a)(7) FOR FAILURE TO STATE A CLAIM .........................................................................................................7 A. All Claims Arising Out of Conduct That Occurred Outside of the State of New York Must be Dismissed .......................................................................................7 i. Plaintiffs Cannot Assert New Facts That Are Not Contained in the Complaint In Attempt To Salvage John Doe 2’s Claims Which Should Undoubtedly Be Dismissed .................................................................................................................7 ii. Plaintiffs Fail To Show That Claims Arising Out of Conduct That Occurred Outside of the State of New York Are Not Ripe for Dismissal ...............................8 B. Plaintiffs’ Arguments Regarding Ducharme’s Independent and Criminal Acts Outside the Scope of His Alleged Employment or Agency Fail ...................................8 C. Plaintiffs’ Negligent Supervision and Negligent Hiring and Retention Claims Should Be Dismissed Because They Do Not Meet the Specificity Requirements Regarding Notice ...........................................................................................................................10

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D. Plaintiffs Fail to Establish That Their Duplicative Claims Should Not Be Dismissed .....................................................................................................................11 i. Plaintiffs Fail to Demonstrate Their Negligent Failure to Provide a Safe and Secure Environment and Negligent Training Claims Are Not Duplicative of Their Negligent Supervision Claims ......................................................................11 ii. Plaintiffs Fail to Demonstrate That Their Intentional Infliction of Emotional Distress Claims Are Not Duplicative of Their Negligence Claims .......................12 E. Plaintiffs’ Sexual Abuse and Battery Claims Are Duplicative of Their Negligence Claims and Fail to State a Cause of Action .................................................................12 III PLAINTIFFS FAIL TO DEMONSTRATE THAT THE COMPLAINT SHOULD NOT BE SEVERED INTO FOUR SEPARATE ACTIONS ............................................13 CONCLUSION ..............................................................................................................................14

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TABLE OF AUTHORITIES CASES Ace Arts, LLC v. Sony/ATV Music Pub., LLC, 56 F. Supp. 3d 436 (SDNY 2014) .............................................................................................. 7 Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., 115 A.D.3d 128 (1st Dep’t 2014) ............................................................................................... 3 Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc., 180 A.D.3d 739 (2d Dep’t 2020) .............................................................................................. 13 Cerilli v. Kezis, 16 A.D.3d 363 (2d Dep’t 2005) ................................................................................................ 12 Cleghorn v. New York Cent. & H.R.R. Co., 56 NY 44 (1874) ....................................................................................................................... 13 Curtis v. St. John’s Church of God in Christ, Inc., et al., 2021 901057/20 (Albany Cnty. Sup. Ct. Jan. 21, 2021) ........................................................... 11 Dixon v. 105 W. 75th St. LLC, 148 A.D.3d 623 (1st Dep’t 2017) ............................................................................................... 3 Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610 (1st Dep’t 2015) ............................................................................................. 10 Fletcher v. Fletcher, 56 A.D.2d 589 (2d Dep’t 1977) .............................................................................................. 2, 3 Henry v. The Roman Catholic Diocese of Rockville Centre, et al. ........................................... 9, 12 2020 615903/2019 (Nassau Cnty. Sup. Ct. May 11, 2020) Herskovitz v. Klein, 91 A.D.3d 598 (2d Dep’t 2012) ................................................................................................ 13 Holly v. Pennysaver Corp., 98 A.D.2d 570 (2d Dep’t 1984) .............................................................................................. 2, 3 Keaton v. Ponte, 16 CIV. 3063 (KPF), 2017 WL 3382314 (SDNY Aug. 4, 2017) ............................................... 7

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Kelleher v. F.M.F. Auto Leasing Corp., 192 A.D.2d. 581 (2d Dep’t 1993) ............................................................................................... 9 Lawrence v. Westchester Day School, et al., 021 NY Slip Op 04482 (2d Dep’t 2021).................................................................................. 11 Loughry v. Lincoln First Bank, 67 N.Y.2D 369 (1986) ................................................................................................................ 9 McGee v. City of Rensselaer, 663 N.Y.S.2d 949 (Sup. Ct. 1977) .............................................................................................. 2 Michael R. v. Westchester Day School, et al., 2021 NY Slip Op 04504 (2d Dep’t 2021)................................................................................. 11 Neal v. C.F.M. Enterprises, Inc., 133 A.D.2d 941 (1987) ............................................................................................................. 12 Pinks v. Turnbull, 906 N.Y.S.2d 782 (N.Y. Sup. Ct. Dec. 11, 2009)..................................................................... 12 Riley v. Cuomo, 2018 WL 1832929 (EDNY Apr. 16, 2018) ................................................................................ 7 Roe v. Domestic and Foreign Missionary Society of the Protestant Episcopal Church, 2020 900049/19 (N.Y. Sup. Ct. 2020) .................................................................................... 6, 7 S.H. v. Diocese of Brooklyn, 2020 517999/2019 (Kings Cnty Sup. Ct. Aug. 14, 2020) .......................................................... 8 Siegmund Strauss, Inc. v. E. 149th Realty Corp., 104 A.D.3d 401 (1st Dep’t 2013) ............................................................................................... 8 Southwick Clothing LLC v. GFT (USA) Corp., 2004 WL 2914093 (SDNY Dec. 15, 2004) ................................................................................ 7 Steven B. v. Westchester Day School, et al., 2021 N.Y. Slip Op. 04476 (2d Dep’t 2021).............................................................................. 11

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STATUTES AND OTHER AUTHORITIES CPLR §§ 3211 ....................................................................................................................... passim

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This Reply Memorandum of Law is submitted in response to Plaintiffs’ Opposition Memorandum of Law dated August 2, 2021 (“Opp. Memo”) and the Affirmation of Irwin Zalkin (“Zalkin Aff.”) and in further support of THE EPISCOPAL CHURCH’S (“TEC”) motion seeking an Order to dismiss the allegations asserted in Plaintiffs’ Complaint, pursuant to CPLR §§ 3211(a)(1) and 3211(a)(7), and in the alternative, to sever the Complaint into four separate actions.

PRELIMINARY STATEMENT TEC established in its moving papers that it is entitled to dismissal of the Complaint pursuant to CPLR §§ 3211(a)(1) and (a)(7). In Opposition, Plaintiffs assert a myriad of baseless arguments in a futile attempt to establish a connection between TEC and Plaintiffs and between TEC and William Ducharme that simply did not exist.

First, Plaintiffs fail to refute the documentary evidence submitted by TEC that shows that Plaintiffs were not in the custody, care and control of TEC when the alleged abuse occurred and that TEC had no control over the hiring, supervision, or discipline of Ducharme. Accordingly, the documentary evidence establishes that no duty was owed to Plaintiffs, and the Complaint must be dismissed pursuant to CPLR § 3211(a)(1).

Second, Plaintiffs fail to demonstrate how TEC could be liable for Ducharme’s actions, which fall outside of the scope of his employment and agency as a matter of law. Thus, Plaintiffs’ negligence causes of actions fail to state a claim and should be dismissed pursuant to CPLR § 3211(a)(7).

Third, in an attempt to distract the Court from appropriate relief sought by TEC, Plaintiffs focus on semantics and improperly argue that those parts of the Complaint arising out of out-ofstate conduct “cannot” be dismissed. However, the law is clear that the CVA only applies to conduct that occurred within the State of New York. Plaintiffs’ attempt to salvage John Doe 2’s

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claims by simply stating in their attorney’s affirmation that John Doe 2 was sexually assaulted in New York is insufficient to survive a motion to dismiss.

Moreover, while Plaintiffs now agree to discontinue their Negligent Infliction of Emotional Distress claims, Plaintiffs fail to provide applicable authority to contradict TEC’s argument that their Negligent Training and Retention and Intentional Infliction of Emotional Distress claims must be dismissed as duplicative of their Negligent Supervision claims.

Plaintiffs’ argument that TEC can be liable for sexual assault and battery based on a theory of ratification of the conduct of Ducharme is wholly unsupported by the applicable case law, and this cause of action must also be dismissed.

Finally, Plaintiffs fail to demonstrate that the interest in judicial efficiency outweighs the prejudice that TEC would face should this action remain consolidated. Accordingly, should the Court not dismiss this Complaint in its entirety, Plaintiffs' claims should be severed into separate actions.

ARGUMENT I

PLAINTIFFS FAIL TO DEMONSTRATE THAT THE COMPLAINT SHOULD NOT BE DISMISSED PURSUANT TO CPLR § 3211(a)(1) BASED ON THE DOCUMENTARY EVIDENCE SUBMITTED A. The Affidavit of Rev. James Was Properly Submitted with TEC’s Motion and Should be Considered by the Court

Plaintiffs argue that the Affidavit of Reverend Molly James dated April 7, 2021 (the “James Aff.”) is improper on a motion to dismiss and should not be considered by the Court. See Opp. Memo, pp. 4-5 (relying on Holly v. Pennysaver Corp., 98 A.D.2d 570 (2d Dep’t 1984), Fletcher v. Fletcher, 56 A.D.2d 589 (2d Dep’t 1977) and McGee v. City of Rensselaer, 663 N.Y.S.2d 949, 951 (Sup. Ct. 1977)).

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The cases relied upon by Plaintiffs are distinguishable and not controlling. For example, in Holly and Fletcher, affidavits were submitted as evidence of fact without any documentary evidence to substantiate the alleged facts contained therein. See Holly, 98 A.D.2d at 573; Fletcher, 56 A.D.2d at 590.

Here, the purpose of the James Aff. is to authenticate the documentary evidence submitted with the motion. The First Department has permitted affidavits on motions to dismiss in similar circumstances. See Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 134, n. 4 (1st Dep’t 2014) (“an affidavit from an individual, even if the person has no personal knowledge of the facts, may properly serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, like documentary evidence.”); Dixon v. 105 W. 75th St. LLC, 148 A.D.3d 623, 627-28 (1st Dep’t 2017) (holding that Landlord, through submission of affidavits annexing documents, satisfied its burden of demonstrating entitlement to dismissal pursuant to CPLR 3211(a)(1)). Contrary to Plaintiffs’ arguments, the James Aff. provides the context for the documentary evidence and explains what the evidence clearly shows – that TEC does not have a role in the ordination, hiring, transfer and discipline of priests serving in local parishes.

Moreover, Plaintiffs’ argument concerning self-serving affidavits where knowledge is within the possession of the movant himself is not persuasive. The James Aff. is not a self-serving affidavit that contains facts without substantiation. It authenticates and provides the context for the documentary evidence, which itself demonstrates that TEC does not have a role in the ordination, hiring, transfer and discipline of priests serving in local parishes. By including this evidence in its motion, TEC has made the relevant facts in its possession available to Plaintiffs. Notably, the Memorandum of Law In Support of TEC’s Motion to Dismiss cited the documentary evidence

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itself rather than any statement in the James Aff. for its factual argument. See generally Memorandum of Law in Support dated May 27, 2021 (“Memo in Support”). Thus, the James Aff. is entirely proper and should be considered by this Court.

B. Plaintiffs Fail to Refute That the Documentary Evidence Shows that TEC Owed No Duty to Plaintiffs The arguments set forth by Plaintiffs demonstrate that they are clearly grasping for straws in an attempt to furnish a connection between TEC, Plaintiffs and Ducharme that simply did not exist. TEC established that its Constitutions and Canons show that no duty could be owed to Plaintiffs. Plaintiffs have failed to demonstrate otherwise. i. Plaintiffs Fail to Address TEC’s Argument That Plaintiffs Were Not in the Care, Custody and Control of TEC At the Time of the Alleged Abuse Plaintiffs’ Opposition ignores TEC’s argument that no duty was owed to Plaintiffs because they were not in the care, custody and control of TEC at the time of the alleged abuse. Accordingly, Plaintiffs’ causes of action for Negligent Failure to Provide a Safe and Secure Environment must be dismissed. As set forth in TEC’s moving papers, TEC is not and was not involved in the care, custody and control of individual parishioners. See Memo in Support, p. 12. Absent any involvement by TEC in the care, custody and control of Plaintiffs, no duty arises.

Plaintiffs’ claims that TEC had a duty “to train and educate its employees and/or agents with respect to detecting, preventing, and addressing inappropriate behavior committed by its priests” and “to promulgate effective policies for detecting and preventing sexual misconduct within its institution,” Opp. Memo, p. 6, fail. Even if TEC had such duties, TEC cannot be liable to Plaintiffs because Plaintiffs were not in its care and control when the abuse is alleged to have occurred.

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ii.

TEC Did Not Exert Control Over Ducharme or the Local Diocese and Parishes with Respect to Priests

Plaintiffs also fail to refute TEC’s documentary evidence establishing that Ducharme was not subject to TEC’s control and supervision (and could not be) at the time of the abuse. First, Plaintiffs argue that the documentary evidence does not refute that Ducharme was subject to TEC’s supervision and that TEC had the authority and ability to act once it knew or should have known about Ducharme’s dangerous propensities. See Opp. Memo, p. 6. These conclusory statements are meritless. TEC’s Constitution and Canons are clear that the ordination, hiring, transfer, and discipline of local priests was performed at the local and diocesan levels. More specifically, the documents show that the ordination of priests is a process undertaken by the Bishop of a diocese and the diocesan Standing Committee;1 that the hiring of priests is performed by the local vestry in communication with the Bishop;2 that the transfer of priests is done with the approval of the Ecclesiastical Authority from each diocese;3 and that the discipline of priests is carried out by the diocesan Standing Committee, the diocesan court and the Bishop.4 Not only does TEC not directly engage in these actions, but it also does not supervise or control any of this process whether at the diocesan or the local level.5

1

James Aff., Ex. 2, Canon III.2, Sec. 5, Canon III.3, Sec. 2, Canon III.10, Secs. 8, 9, and Canon III.11, Secs. 7, 8; Ex. 3, Canon III.2, Sec. 5, Canon III.3, Sec. 2; Canon III.10, Secs. 8, 9; Canon III.11, Secs. 7, 8.

2

Id., Ex. 2, Canon III.22, Secs. 1-3; Ex. 3, Canon III.23, Secs. 1-3.

3

Id., Ex. 2, Canon III.20, Sec. 6(a), (d), (e); Ex. 3, Canon III.21, Sec. 6(a), (d), (e).

4

Id., Ex. 2, Canon IV.1, Sec. 1, Canon IV.4(a), Canon IV.3(a), & Canon IV.12, Sec. 4(a); Ex. 3, Canon IV.1, Sec. 1, Canon IV.4(a), Canon IV.3(a), & Canon IV.12, Sec. 4(a).

5

Id., Ex. 2, Canon III.18, Sec. 2(a); Ex. 3, Canon III.18, Sec. 2(a); Ex. 2, Canon III.20, Sec. 2(d); Ex. 3, Canon III.21, Sec. 2(d).

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Second, Plaintiffs’ assertion that “TEC is a hierarchical organization with the higher entities exerting oversight over lower entities, and that TEC sets policy for the lower churches, including the requirement to become a priest” is wholly unfounded. Opp. Memo, pp. 6-7. The TEC Constitution passage relied upon in Plaintiffs’ Opposition brief says nothing about hierarchical entities exerting control over one another; rather, it is about TEC’s community of faith sharing a common religious heritage. Moreover, the mere fact that TEC creates policies concerning the requirements to become a priest in no way demonstrates that TEC controls and supervises priests.

Plaintiffs’ claim that the documentary evidence is silent as to the issue of the chain of communication for reports of childhood sexual abuse within TEC, see Opp. Memo, p. 7, misses the point. The documentary evidence provides the discipline procedure for priests, including for crime or immorality, which occurs only at the Diocesan and local levels of the Church and not at the TEC level. See Memo in Support, pp. 7-8.

Plaintiffs’ arguments concerning the public representations of TEC on the General Convention and Executive Council also fail to demonstrate any duty was owed to Plaintiffs. These general statements regarding the current ministry and mission of TEC and the policy for the protection of children in no way refute that TEC did not exert control over Ducharme. In fact, Plaintiffs admit that TEC promulgates a model policy for the protection of children that “each diocese shall adopt.” Opp. Memo, p. 7. A plain reading of this statement shows that it is each diocese’s responsibility to protect the children within its purview.

Finally, Plaintiffs’ reliance upon the Court’s decision in Roe v. Domestic and Foreign Missionary Society of the Protestant Episcopal Church, 2020 900049/19 (N.Y. Sup. Ct. 2020), to argue that the documentary evidence submitted here is insufficient for a CPLR 3211(a)(1) motion to dismiss, see Opp. Memo, p. 7, also fails for several reasons. First, the decision contains no

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analysis regarding the allegations in the Complaint and the documentary evidence. Therefore, nothing can be gleaned from the Roe Decision with respect to the sufficiency of the evidence submitted here. Additionally, there is a pending appeal of the decision in the Second Department, and the Supreme Court Decision in Nassau County is not controlling.

Accordingly, where Plaintiffs have not refuted TEC’s documentary evidence that no duty was owed to Plaintiffs, all causes of action must be dismissed as a matter of law.

II

PLAINTIFFS FAIL TO ESTABLISH THAT THE COMPLAINT SHOULD SURVIVE A MOTION TO DISMISS UNDER CPLR § 3211(a)(7) FOR FAILURE TO STATE A CLAIM A. All Claims Arising Out of Conduct That Occurred Outside of the State of New York Must be Dismissed i. Plaintiffs Cannot Assert New Facts That Are Not Contained in the Complaint In Attempt To Salvage John Doe 2’s Claims Which Should Undoubtedly Be Dismissed

Plaintiffs’ Counsel’s assertion that John Doe 2 was sexually assaulted in the State of New York, made for the first time in his Affirmation, Zalkin Aff., ¶ 7, is procedurally improper and must not be entertained. Keaton v. Ponte, 16 CIV. 3063 (KPF), 2017 WL 3382314, at *16 (SDNY Aug. 4, 2017) (finding that a claim asserted by plaintiff in the first time in his opposition papers fails); Southwick Clothing LLC v. GFT (USA) Corp., 99 CV 10452 (GBD), 2004 WL 2914093, at *6 (SDNY Dec. 15, 2004) (holding that “a complaint cannot be amended merely by raising new facts and theories in plaintiffs' opposition papers, and hence such new allegations and claims should not be considered in resolving the motion”); Riley v. Cuomo, 217CV01631ADSAYS, 2018 WL 1832929, at *1 (EDNY Apr. 16, 2018) (stating that a plaintiff is not permitted to amend his complaint by virtue of what is said in a memorandum of law); Ace Arts, LLC v. Sony/ATV Music Pub., LLC, 56 F. Supp. 3d 436, 450-51 (SDNY 2014) (finding that it is “axiomatic” that a plaintiff cannot amend a complaint by virtue of an opposition to a motion to dismiss).

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Specifically, Plaintiffs’ Counsel submits that “John Doe 2 has indicated that he was sexually abused as a minor by William Ducharme in a swimming pool at Long Island University Post, located in Brookville, New York.” Zalkin Aff., ¶ 7. Counsel does not even attempt to support this additional fact with an affidavit from John Doe 2 himself, which itself would fail on a motion to dismiss. Counsel’s Affirmation must not be considered by this Court. Indeed, the standard for a motion to dismiss is, by Plaintiffs’ own admission, whether factual allegations manifesting a cognizable cause of action are discerned from the four corners of the pleadings. See Siegmund Strauss, Inc. v. E. 149th Realty Corp., 104 A.D.3d 401, 403 (1st Dep’t 2013). TEC respectfully requests that this Court consider only the facts as pleaded within the four corners of Plaintiffs’ Complaint and disregard Plaintiffs’ newly added allegations from their Counsel’s Affirmation. ii. Plaintiffs Fail To Show That Claims Arising Out of Conduct That Occurred Outside of the State of New York Are Not Ripe for Dismissal Plaintiffs overcomplicate and mischaracterize TEC’s argument in focusing on semantics in asserting that “part” of a cause of action cannot be dismissed. See Opp. Memo at pp. 8-9. TEC properly requested that this Court dismiss all causes of action in the Complaint that arise out of conduct that occurred outside New York State. Indeed, New York Courts have dismissed causes of action arising out of out-of-state conduct in the CVA context. See S.H. v. Diocese of Brooklyn, 2020 517999/2019, p. 5. Plaintiffs fail to assert any case law to the contrary.

B. Plaintiffs’ Arguments Regarding Ducharme’s Independent and Criminal Acts Outside the Scope of His Alleged Employment or Agency Fail Plaintiffs’ Opposition fails to overcome the clear case law that TEC cannot be held liable for Ducharme’s alleged conduct because his independent and criminal sexual acts fall outside the scope of his alleged employment or agency. In examining the four corners of the Complaint,

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Plaintiffs cannot argue in good faith that TEC is liable for Ducharme’s criminal and independent alleged acts as Plaintiffs’ claims are clearly based on the doctrine of respondeat superior.

Moreover, Plaintiffs argue that a principal may be held liable for ratifying criminal conduct of its agent, even those acting outside the scope of their authority. Plaintiffs rely upon Loughry v.

Lincoln First Bank, 67 N.Y.2D 369, 370 (1986) and Kelleher v. F.M.F. Auto Leasing Corp., 192 A.D.2d. 581 (2d Dep’t 1993). The Court of Appeals in Loughry specifically stated that the issue of whether the conduct fell outside the scope of employment was “beyond [its] review.” Id. at 376.

Thus, this decision does not support Plaintiffs’ argument that liability can attach even for conduct that falls outside the scope of employment. The Court in Kelleher held that an employer was not liable for punitive damages where it did not ratify the conduct of its employee who left a passenger of its cab on the side of the road who subsequently died. Neither of these cases involve a tiered entity like TEC which has no involvement in third parties’ conduct at the local level such that it would be capable of ratifying said conduct.

This Court should look to Judge Jaeger’s decision in another CVA matter, Henry v. The Roman Catholic Diocese of Rockville Centre, et al., in which Plaintiff’s causes of action for assault and battery against the Diocese were dismissed because the conduct of the alleged abuser was deemed outside the scope of her employment and agency. 2020 615903/2019, p. 16 (Nassau Cnty.

Sup. Ct. May 11, 2020).

TEC established through documentary evidence that Ducharme was not in fact an agent of TEC. Even if he was an agent, which TEC does not concede, Plaintiffs have failed to allege that TEC ratified any conduct of Ducharme, let alone how TEC would have known of any conduct of Ducharme given that TEC was not involved in his hiring, supervision, or discipline. Plaintiffs’ Opposition fails to demonstrate any valid reason as to why TEC should be held liable for the

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conduct of Ducharme. Accordingly, Plaintiffs’ claims for (1) negligent supervision; (2) negligent hiring and retention; (3) negligent failure to train; (4) intentional infliction of emotional distress; and (5) sexual assault and battery should be dismissed.

C. Plaintiffs’ Negligent Supervision and Negligent Hiring and Retention Claims Should Be Dismissed Because They Do Not Meet the Specificity Requirements Regarding Notice Plaintiffs do not even address the extensive case law cited in TEC’s moving brief regarding the specificity requirements regarding notice in sexual assault cases. Moreover, the list of allegations from the Complaint included in Plaintiffs’ Opposition utterly fails to demonstrate that notice was adequately pleaded. In fact, many of the allegations listed in Plaintiffs’ Opposition are wholly unrelated to the issue of notice. See Opp. Memo, pp. 12.

Plaintiffs’ allegations that TEC “taught children, including Plaintiffs, to obey, trust and respect priests such as Ducharme” and that “it was part of a priest’s duties to cultivate trusting relationships with parishioner’s families, including children, by frequently visiting parishioners’ homes and staying on overnight trips with minor parishioners” do not suffice. See Compl., ¶¶ 115, 118. These and Plaintiffs’ additional conclusory and boilerplate allegations that Defendants “knew or should have known that Ducharme had a propensity to sexually abuse children, including Plaintiffs” and simply that “it was foreseeable that Ducharme would sexually abuse Plaintiffs,” Compl, ¶¶ 116-17, are insufficient as a matter of law to state a cause of action for negligence against TEC absent factual allegations to support that TEC had the required notice. See Facebook, Inc. v. DLA Piper LLP (US), 134 A.D.3d 610, 615 (1st Dep’t 2015). Accordingly, Plaintiffs’ Negligent Supervision and Negligent Hiring and Retention claims must be dismissed for failure to state a cause of action.

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D. Plaintiffs Fail to Establish That Their Duplicative Claims Should Not Be Dismissed Plaintiffs fail to establish why this Court should not follow extensive New York precedent that duplicative causes of action must be dismissed. Plaintiffs argue that they are permitted to plead alternative and inconsistent causes of action. See Opp. Memo, p. 12. However, this argument completely ignores that duplicative causes of action that arise out of the same facts and circumstances are not permitted under New York law. See Memo in Support, pp. 19-22. i.

Plaintiffs Fail to Demonstrate Their Negligent Failure to Provide a Safe and Secure Environment and Negligent Training Claims Are Not Duplicative of Their Negligent Supervision Claims

Plaintiffs rely on a single case, Curtis v. St. John’s Church of God in Christ, Inc., et al., 2021 901057/20 (Albany Cnty. Sup. Ct. Jan. 21, 2021), to argue that they have not asserted duplicative negligence claims. Not only is Curtis pending in Albany County and not controlling here, Plaintiffs ignore that these causes of action are one in the same and that the applicable case law warrants dismissal. As recently as July 21, 2021, the Appellate Division, Second Department affirmed the dismissal of a claim for negligent failure to provide a safe and secure environment because it was duplicative of Plaintiff’s negligence claims. See Lawrence v. Westchester Day School, et al., 021 NY Slip Op 04482 (2d Dep’t 2021) (“Moreover, the Court properly directed the dismissal of that cause of action as duplicative since it arose from the same facts as the negligent supervision and negligent retention causes of action and does not allege distinct damages”); see also Steven B. v. Westchester Day School, et al., 2021 N.Y. Slip Op. 04476 (2d Dep’t 2021) (same); Michael R. v. Westchester Day School, et al., 2021 NY Slip Op 04504 (2d Dep’t 2021) (same).

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ii.

Plaintiffs Fail to Demonstrate That Their Intentional Infliction of Emotional Distress Claims Are Not Duplicative of Their Negligence Claims

Plaintiffs again rely upon a single case to argue that their Intentional Infliction of Emotional Distress claims are not duplicative of their Negligence claims. However, Plaintiffs’ reliance upon Pinks v. Turnbull, 906 N.Y.S2d 782 (N.Y. Sup. Ct. Dec. 11, 2009), is misplaced as a duplicative argument was not raised in Pinks. Moreover, Plaintiffs do not even attempt to show why the Court should not follow the decisions contained in TEC’s moving brief, all of which dismissed intentional infliction of emotional distress claims as duplicative.

The case that is entirely on point here is Henry v. The Roman Catholic Diocese of Rockville Centre, et al., 2020 615903/2019 (Nassau Cnty. Sup. Ct. May 11, 2020). In Henry, the plaintiff alleged he was sexually assaulted by an employee of the Diocese and his Church. The Court dismissed Plaintiff’s claim for intentional infliction of emotional distress as duplicative of his negligence claim. See id. at 20.

E. Plaintiffs’ Sexual Abuse and Battery Claims Are Duplicative of Their Negligence Claims and Fail to State a Cause of Action Plaintiffs fail to address TEC’s argument that Plaintiffs do not adequately plead the elements of sexual abuse and battery against TEC: “bodily contact, made with intent, and offensive in nature.” Cerilli v. Kezis, 16 A.D.3d 363, 364 (2d Dep’t 2005). Instead, Plaintiffs hang their hat on the concept of ratification, citing to the Third Restatement and non-controlling cases from Colorado and California.

The two New York cases that Plaintiffs rely upon are misplaced. First, the Court in Neal v.

C.F.M. Enterprises, Inc., 133 A.D.2d 941 (1987), found that a store manager did not ratify the conduct of two store patrons who assaulted plaintiff as he exited the store, despite the manager’s knowledge that plaintiff frequently came to the store shortly before closing and harassed the 12

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employees. Id. at 942. Cleghorn v. New York Cent. & H.R.R.Co., 56 NY 44 (1874) involved a railroad’s liability for the actions of its employee who was intoxicated while working. Neither of these cases involve an entity like TEC which has no involvement in third parties’ conduct at the local level such that it would be capable of ratifying said conduct.

Plaintiffs argue that the Diocese was an agent of TEC and the Diocese’s alleged knowledge of Ducharme’s misconduct is imputed to TEC. However, Plaintiffs failed to plead that the Diocese is an agent of TEC such that the Diocese’s knowledge should be imputed to TEC. Moreover, the Complaint clearly states that Plaintiffs’ father reported Ducharme’s alleged misconduct ten years after the alleged abuse. Compl. ¶ 72. TEC cannot be liable for ratifying the conduct of Ducharme if said conduct had not yet been reported at the time of Plaintiffs’ alleged abuse.

Finally, Plaintiffs fail to refute that their Sexual Abuse and Battery Claims should be dismissed as duplicative of their Negligent Supervision Claim because their allegations are based on TEC’s alleged failure to supervise Ducharme. Compl., ¶¶ 198-9.

III

PLAINTIFFS FAIL TO DEMONSTRATE THAT THE COMPLAINT SHOULD NOT BE SEVERED INTO FOUR SEPARATE ACTIONS The arguments set forth by Plaintiffs utterly fail to demonstrate that judicial efficiency

outweighs the potential prejudice to TEC should these actions remain consolidated. That Plaintiffs are brothers is immaterial. The alleged conduct occurred in different locations, in different states, and perhaps most importantly, were of varying degrees of severity. Thus, each alleged occurrence necessarily requires individual analysis, assessment and evaluation. See Belair Care Ctr., Inc. v.

Cool Insuring Agency, Inc., 180 A.D.3d 739, 742 (2d Dep’t 2020).

Plaintiffs rely upon Herskovitz v. Klein, 91 A.D.3d 598 (2d Dep’t 2012), which is factually distinguishable and involves severing a counterclaim in a divorce proceeding between a husband

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and wife. Id. at 598. The prejudicial effect at trial is far greater than any need for judicial efficiency.

Accordingly, the instant action should be severed.

CONCLUSION For the foregoing reasons, the Complaint should be dismissed in its entirety as against The Episcopal Church.

Dated: New York, New York August 16, 2021 By: /s/ Megan R. Siniscalchi Megan R. Siniscalchi, Esq.

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RULE 202.8-b CERTIFICATION I, Megan R. Siniscalchi, an attorney admitted to practice law in the Courts of the State of New York, certify under penalty of perjury that the foregoing Reply Memorandum of Law in Support of Defendant The Episcopal Church’s Motion to Dismiss the Plaintiff’s Complaint conforms to the requirements of the Uniform Civil Rules for the Supreme Court, Rule 202.8-b, and is comprised of 4,162 words, exclusive of captions, tables of authority/contents, and signature blocks.

Dated: New York, New York August 16, 2021 By: /s/ Megan R. Siniscalchi Megan R. Siniscalchi, Esq.

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