AGUILAR v. NYU (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated August 6, 2024.  The order, insofar as appealed from, granted that branch of the motion of the defendants NYU Langone Huntington Medical Group and NYU Langone Health System which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In 2022, the plaintiff Mavis Aguilar, and her husband suing derivatively, commenced this action against the defendant Steven G. Wishner, the defendant Huntington Medical Group, P.C. (hereinafter HMG), and the defendants NYU Langone Huntington Medical Group and NYU Langone Health System (hereinafter together the NYU defendants), inter alia, to recover damages for personal injuries pursuant to the Adult Survivors Act (ASA) (CPLR 214–j) based upon allegations that Wishner had forcibly touched and sexually abused Aguilar during a medical examination that he performed on her in January 2004 (hereinafter the January 2004 examination).  The plaintiffs alleged that at the time of the January 2004 examination, Wishner was employed by HMG, and the complaint asserted causes of action to hold the NYU defendants directly liable for the negligent hiring, training, supervision, and retention of Wishner and vicariously liable for Wishner's misconduct based upon allegations that sometime after the January 2004 examination, the NYU defendants acquired, merged with, or otherwise became the successor to HMG.

The NYU defendants moved, among other things, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them.  In an order dated August 6, 2024, the Supreme Court, inter alia, granted that branch of the motion.  The plaintiffs appeal.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may only be granted where the documentary evidence utterly refutes the factual allegations in the complaint, thereby conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;  IPA Asset Mgt., LLC v. Schuman, 239 A.D.3d 619, 237 N.Y.S.3d 110).  To qualify as documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as judicial records and documents reflecting out-of-court transactions, including mortgage agreements, deeds, contracts, and any other papers, the contents of which essentially are undeniable (see Yan Ping Xu v. Van Zwienen, 212 A.D.3d 872, 874, 183 N.Y.S.3d 475;  Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67).

Here, the NYU defendants’ documentary evidence utterly refuted the plaintiffs’ allegations as to the NYU defendants’ successor liability, thereby warranting dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1).  In general, a corporation that acquires the assets of another is not liable for the torts of its predecessor (see Schumacher v. Richards Shear Co., Inc., 59 N.Y.2d 239, 244–245, 464 N.Y.S.2d 437, 451 N.E.2d 195).  However, “[a] corporation may be held liable for the torts of its predecessor if (1) it expressly or impliedly assumed the predecessor's tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape such obligation” (id. at 245, 464 N.Y.S.2d 437, 451 N.E.2d 195).

The NYU defendants’ documentary evidence demonstrated that (1) the NYU defendants did not expressly or impliedly assume HMG's tort liability, (2) HMG and the NYU defendants did not formally consolidate into a new entity, (3) HMG was not extinguished but rather survived the transaction, and (4) at the time of the conduct alleged during the January 2004 examination, the ASA did not exist, such that the plaintiffs’ causes of action were time-barred (see e.g. Hartford Acc. & Indem. Co., Inc. v. Canron, Inc., 43 N.Y.2d 823, 825, 402 N.Y.S.2d 565, 373 N.E.2d 364;  see also Schumacher v. Richards Shear Co., Inc., 59 N.Y.2d at 245, 464 N.Y.S.2d 437, 451 N.E.2d 195).  Moreover, to the extent the complaint may be viewed as pleading a de facto merger of HMG and the NYU defendants (see Menche v. Cdx Diagnostics, Inc., 199 A.D.3d 678, 680–681, 157 N.Y.S.3d 61;  Bonanni v. Horizons Invs. Corp., 179 A.D.3d 995, 999, 118 N.Y.S.3d 137), the NYU defendants’ documentary evidence refuted any such allegation (see e.g. Oorah, Inc. v. Covista Communications, Inc., 139 A.D.3d 444, 445, 30 N.Y.S.3d 626;  City of New York v. Pfizer & Co., Inc., 260 A.D.2d 174, 175, 688 N.Y.S.2d 23;  cf. e.g. Matter of AT & S Transp., LLC v. Odyssey Logistics & Tech. Corp., 22 A.D.3d 750, 753, 803 N.Y.S.2d 118).

Accordingly, the Supreme Court properly granted that branch of the NYU defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them.

DILLON, J.P., MILLER, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.