JF v. OUR LADY OF MOUNT CARMEL ST BENEDICTA PARISH OUR LADY OF MOUNT CARMEL ST BENEDICTA SCHOOL SISTERS OF THE CATHOLIC APOSTOLATE PALLOTTINE PALLOTINES OF THE IMMACULATE CONCEPTION PROVINCE INC (2023)

I. Statement pursuant to CPLR § 2219

The following e-filed documents, listed by NYSCEF, to wit: 20-28; 31-46; and 48-50 were read on this motion. Although counsel was provided with an opportunity for oral argument, they declined, and chose instead for the court to take the matter wholly on submission of the aforementioned documents.

II. Procedural Posture

Defendant Archdiocese of New York [hereinafter "Archdiocese"] seeks [1] an Order pursuant to CPLR § 3024 [b], striking all paragraphs of Plaintiff's Verified Complaint that refer to CV as "abuser"; [2] an Order dismissing Plaintiff's Third Cause of Action for Premises Liability (pursuant to CPLR § 3211 [a] [7]); and [3] for such other and further relief as this Court deems just and proper. This is a final Decision and Order on Motion Sequence #002.

III. Facts

This action was commenced by Plaintiff pursuant to § 214-g of the Child Victims Act [hereinafter "CVA"]. The claims arise from allegations of sexual assault by CV, when Plaintiff was eleven (11) years old, in or around 1961. Throughout the Verified Complaint, the Plaintiff refers to the alleged tortfeasor, CV as "abuser." Defendant Archdiocese claims that the use of the term "abuser" is prejudicial, and, that prejudice has increased exponentially by Plaintiff's repeated use of the term 186 (one-hundred eighty-six) times throughout its Verified Complaint. Movant further alleges that in addition to being prejudicial, Plaintiff's use of the word "abuser" is unnecessary, adding nothing to the sufficiency of Plaintiff's abuse claims, and further that the term is irrelevant to the remaining non-abuse claims.

Additionally, Defendant Archdiocese contends that Plaintiff's Verified Complaint contains a "lengthy Background narrative" of alleged historical events in the Roman Catholic Church spanning decades and centuries, within paragraphs 73-75 (page 11), including time periods before the existence of the United States, or the Archdiocese of New York. Claiming that the background narrative is irrelevant to the viability of the claims at issue, and that they provide minimal probative value, are highly prejudicial to the Archdiocese, as well as all Defendants in this action, and therefore should be stricken from the pleadings pursuant to CPLR § 3024 [b].

Plaintiff opposes, arguing that the motion is a veiled attempt by Defendant to reshape the facts in a more favorable light. Specifically, Plaintiff states that he defined a number of parties in the Verified Complaint, and that the designation of CV as "abuser" was done for ease of the Court, "given its common parlance in CVA cases, but for no other basis." Further, Plaintiff contends that Defendant Archdiocese has the burden to establish not only that the terminology is prejudicial or irrelevant, and that they are unable to meet their burden. Moreover, Plaintiff maintains that to deny Plaintiff the ability to call his abuser just that, "abuser," is to sanitize the Verified Complaint and prevent Plaintiff from using the very term used by several dioceses in their respective confidential proof of claim forms and IRCP claim forms.

As to the "lengthy Background narrative," Plaintiff suggests that he should be afforded flexibility in presenting and alleging his claims, and that Defendant has not, and cannot establish prejudice or irrelevance in connection with paragraphs 73-75 of the Verified Complaint.

The second prong of Defendant Archdiocese' motion seeks dismissal of Plaintiff's Third Cause of Action for Premises Liability, alleging that the claim is duplicative of his other negligence causes of action, warranting dismissal as a matter of law. Plaintiff contends that his negligence claim is premised on a duty arising through a special relationship between Plaintiff and Defendant, and that the Premises Liability claim is premised on a dangerous condition created by Defendant as simply a landowner of the property. As such, it is Plaintiff's position in opposition that both causes of action have separate and distinct origins of Defendant's duty, and that Plaintiff is permitted to plead multiple theories of liability, or theories of liability in the alternative. Finally, Plaintiff contends that he should be able to take discovery on these distinct duties to determine whether they entirely overlap each other or have similar characteristics but are not entirely duplicative of each other.

IV. Discussion

A. CPLR § 3024 [b] and the Verified Complaint

Prejudicial language in a pleading might not necessarily be scandalous in a given action. Conversely, language in a pleading that is arguably scandalous in nature may not be prejudicial, if necessary to the nature of the pleading (Pisula v Roman Catholic Archdiocese of New York, 201 AD3d 88 [2d Dept 2021]). What qualifies as a scandalous or prejudicial matter in a given complaint is sui generis (See Pisula at 96). Here, it is axiomatic that Plaintiff's unqualified repeated reference to CV as "abuser" is highly prejudicial and does not advance any cause of action stated in Plaintiff's Verified Complaint (Platt v The Roman Catholic Diocese of Brooklyn, et al, Index No.: 518002/2021 [Kaplan, J.] [Sup Ct Kings Co 2021]).

Plaintiff's Verified Complaint uses the term "abuser" 186 (one hundred eighty-six) times, to describe Defendant CV. Whether the statement in controversy is "scandalous or prejudicial" depends upon a determination of whether the statement, when evaluated in context of the pleading as a whole, "is gratuitous and solely designed to inflame the reader or listener" (Aronis v TLC Vision Centers, Inc, 49 AD3d 576 [2d Dept 2008]); AJS Agency Inc v Empire Healthchoice, HMO, Inc, 2011 NY Misc LEXIS 1502 [Sup Ct Nassau Co 2011]). Material is deemed "scandalous" if it is "reproachful and immaterial, or if it is capable of producing harm to the opposing party without justification" (See Hurley v Hurley, 266 AD 701 [3 Dept 1943]; Walsh v Endre-Sen, 2009 NY Misc LEXIS 4859 [Sup Ct NY Co 2009]). While Plaintiff may believe that use of the term "abuser" is an easy reference for the court, it is in fact a highly prejudicial and impermissible way to repeatedly refer to a Defendant in a pleading. At this point in the action, Plaintiff, has merely alleged, and not proven, that Defendant(s) are liable. Conclusory derogatory labels, such as "abuser" and "perpetrator," repeated with great frequency (186 times) are inflammatory and prejudicial under these facts. Plaintiff fails to put forth any showing as to how using words such as "abuser" or "perpetrator," multiple times in the pleading, advances their cause of action.

The court finds that the term "abuser" as used to label a particular Defendant herein, does nothing to advance the causes of action asserted under the statute, and is superfluous. The fact that the term "abuser" may be replete within the statute, or used by elected officials in legislative discussions about the CVA, used in confidential claim forms by other dioceses, or even in judicial administrative Case Management Orders, is not dispositive of the issue. The issue herein is rooted in due process. Verified Complaints are pleadings that are permitted to be read by a jury in a deliberation room. This differs dramatically from the examples provided by Plaintiff, namely, because the confidential claim forms identified, are used for an alleged victim to notify a federal bankruptcy court of a potential claim against the diocese. The claim forms are not admissible documents to be submitted to a district court for a jury to view during trial. Moreover, Plaintiff ignores the fact that the Case Management Orders are irrelevant to the facts of the case, are inadmissible, and that a jury will never read them while deliberating. Further, whether an elected legislator used the term "abuser" or any other word while promoting legislation, does not mean that such language can or should be used in pleadings or in court; a forum that requires procedural and substantive due process, for the fair administration of justice.

As to the background information provided in paragraphs 73-75 of the Verified Complaint, this court likewise finds it to be gratuitous, superfluous, and 'unnecessary' to advance Plaintiffs' causes of action. "Unnecessary" speaks to the matter's relevance to the action, which involves an exercise of weighing the relevance of scandalous or prejudicial matters to the transactions or occurrences alleged, and the material elements of the causes of action or defenses. "A logical reading of the plain language of [CPLR § 3024 [b]] indicates that which is merely unnecessary should not be stricken from a pleading unless it is first shown to be scandalous or prejudicial. Indeed, even the most prolix complaint that is chock-full of unnecessary and irrelevant allegations is not subject to any motion to trim the pleading to its necessary core—unless the complaint contains allegations that are scandalous or prejudicial. Even then, only the scandalous or prejudicial matter is excised, leaving the other irrelevancies intact (Pisula, 201 AD3d at 100). Here, the Archdiocese has made the requisite showing under Pisula that the "Background" paragraphs 73-75 in the Verified Complaint are prejudicial, scandalous, and were unnecessarily inserted into the pleadings. The Archdiocese contends that within the background paragraphs (73-75) Plaintiff alleges broadly that officials from the Catholic Church have excessive power and influence over its members, and that they used this influence to stop alleged victims from coming forward. In addition, contained within the paragraphs is an allegation that diocesan officials refused to disclose the identities of allegedly abusive clerics for decades.

These allegations are highly prejudicial and unnecessary, as they allege a widespread, decades long, global conspiracy that does nothing to advance the causes of action herein. The paragraphs are not probative of whether the Archdiocese was negligent in the handling of CV. Rather, they seek to prejudice the trier of fact against the Defendants, by broadly alleging participation, and complicity, in a decade's long conspiracy. Therefore, these paragraphs are stricken from the Verified Complaint in their entirety, and Plaintiff is directed to file an Amended Verified Complaint, consistent with this Decision and Order. Of course, the mere striking of a matter from a pleading does not, ipso facto, preclude related facts or evidence from being admitted at trial, and the parties ought to be guided accordingly (Wegman v Dairylea Coop Inc, 50 AD2d 108, 111[4 Dept 1975]; Schachter v Massachusetts Protective Assn, 30 AD2d 540 [2d Dept 1968]).

B. Plaintiffs Third Cause of Action for Premises Liability and CPLR § 3211[a][7]

It is settled that, with respect to premises liability, "[l]iability for a dangerous condition is generally predicated on ownership, control, or a special use of the property" (Colon v Corporate Bldg Groups, Inc, 116 AD3d 414, 414 [1st Dept 2014]). "A plaintiff alleging injury caused by a dangerous condition must show that defendant either created the condition, or failed to remedy it, despite actual or constructive notice thereof [citations omitted]" (Haseley v Abels, 84 AD3d 480, 482 [1 Dept 2011]). In order to prevail on a negligence claim, "a plaintiff must demonstrate [1] a duty owed by the defendant to the plaintiff, [2] a breach thereof, and [3] injury proximately resulting therefrom" (Solomon v City of New York, 66 NY2d 1026 [1985]). In the absence of a duty, as a matter of law, there can be no liability (id at 1028; see also Lauer v City of New York, 95 NY2d 95 [2000] ["(w)ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm"] ). The definition and scope of an alleged tortfeasor's duty owed to a plaintiff is a question of law (see Palka v Servicemaster Mgt Servs Corp, 83 NY2d 579 [1994]).

When a party moves to dismiss a complaint pursuant to CPLR § 3211 [a][7], the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (Guggenheimer v Ginzburg, 43 NY2d 268 [1977]; Foley v D'Agostino, 21 AD2d 60, 64-65 [1 Dept 1964]). At the pleading stage of an action, Plaintiff has the burden to allege cognizable legal theories which fit within a given set of facts. In pursuing causes of action for negligence and premises liability, Plaintiff alleges both causes of action in the event discovery establishes that Defendant did not breach its duty to Plaintiff but did create or fail to remedy a dangerous condition. Conversely, Plaintiff alleges both causes of action in the event discovery establishes that Defendant did not breach its duty to Plaintiff but created or failed to remedy a dangerous condition (See Reno v Churchville-Chili Central School District, 72 Misc 3d 1207[A] [Sup Ct Monroe Co 2021]).

Here, Plaintiff's negligence claim is premised on a duty arising through a special relationship between Plaintiff and Defendant. Plaintiff's premises liability claim is premised on a dangerous condition created by Defendant as simply a landowner of the property. Both causes of action have separate and distinct origins of Defendant's duty and Plaintiff is permitted to plead multiple theories of liability or theories of liability in the alternative (See CPLR § 3014). Whether the Plaintiff can ultimately establish its allegations is not part of the calculus (EBC I, Inc v Goldman Sachs & Co, 5 NY3d 11 [2005]).

As Plaintiff is afforded the benefit of every possible favorable inference because the facts allege legally cognizable causes of action, Plaintiff is permitted to take discovery on these distinct duties to determine whether they entirely overlap each other or have similar characteristics but are not entirely duplicative of each other. Therefore, Defendant's motion to dismiss Plaintiff's Third Cause of Action for Premises Liability is denied, without prejudice to renew upon the completion of discovery.

V. Conclusion

Based upon the foregoing, Defendant's motion is granted to the extent that paragraphs 73-75 of Plaintiff's Verified Complaint are hereby stricken, portions of Plaintiff's Verified Complaint that label Defendants as "abuser" and/or "perpetrator" are hereby stricken. Plaintiff is directed to file an Amended Complaint consistent with this Decision and Order within 20 days hereof. Defendant's motion is denied to the extent that the portion of the motion seeking dismissal of Plaintiff's Third Cause of Action is denied, without prejudice to renew upon the completion of discovery.

IV. Decretal Paragraphs

It is hereby ORDERED that Defendant's motion is granted to the extent that paragraphs 73-75 of Plaintiff's Verified Complaint are hereby stricken; and it is further,

ORDERED, that the portions of Plaintiff's Verified Complaint that label Defendants as "abuser" and/or "perpetrator" are hereby stricken; and it is further,

ORDERED, that Plaintiff is directed to file an Amended Complaint consistent with this Decision and Order within 20 days hereof; and it is further,

ORDERED, the portion of Defendant's motion seeking dismissal of Plaintiff's Third Cause of Action is DENIED, without prejudice to renew upon the completion of discovery.

Any relief not specifically addressed herein is DENIED without prejudice to renew.

This shall constitute the Decision and Order of the Court.

Dated: March 1, 2023

Staten Island, New York

E N T E R,

__________________________________________

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT

Ronald Castorina Jr., J.