ARK 357 DOE v. JESUIT FATHERS AND BROTHERS (2023)

Orders, Supreme Court, New York County (Alexander M. Tisch, J.), entered on or about October 31, 2022 and on or about December 12, 2022, which, to the extent appealed from, denied defendant-appellant's motions to dismiss plaintiffs’ causes of action alleging negligent training and supervision and negligent retention, unanimously affirmed, without costs.

The court properly denied appellants’ motions to dismiss plaintiffs’ causes of action alleging negligent training and supervision and negligent retention arising from the allegations that plaintiffs were sexually abused as children by priests they met while involved in youth programs.  Plaintiffs allege that appellants knew or should have known of the priests’ dangerous propensities.  While appellants argue that plaintiffs fail to allege specific facts that they had notice of the priests’ criminal proclivities, at this pre-answer stage of the litigation, such information is in the sole possession and control of appellants.  Therefore, dismissal of these causes of action was properly denied on this ground as “facts essential to justify opposition may exist but cannot then be stated” (see CPLR 3211[d];  G.T. v. Roman Catholic Diocese of Brooklyn, N. Y., 211 A.D.3d 413, 180 N.Y.S.3d 75 [1st Dept. 2022]).  The court also correctly denied appellants’ motions to dismiss pursuant to CPLR 3211(a)(5).  To the extent plaintiffs were required to do so, they adequately pled entitlement to file these actions under CPLR 214–g by alleging conduct that would constitute a violation of at least one section of Penal Law article 130 and/or § 263.05 (see Doe v. Archdiocese of New York, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2023 N.Y. Slip Op. 05654 [1st Dept. 2023]).