The ESTATE OF Ralph Stewart GALLAGHER, BY AND THROUGH Catherine GALLAGHER in her Official Capacity as Voluntary Administrator of the Estate of Ralph Stewart Gallagher, Petitioner, v. CATHOLIC FOREIGN MISSION SOCIETY OF AMERICA, INC. a/k/a Maryknoll Fathers and Brothers a/k/a The Maryknoll Society; Maryknoll Fathers' Mission Society, Inc.; and the Roman Catholic Archdiocese of New York, Respondents.
The following papers were considered in connection with the petition by The Estate of Ralph Stewart Gallagher (“petitioner”) for an order (1) pursuant to CPLR 3102 (c) compelling pre-action discovery by respondents 1 ; (2) requiring respondents to preserve and log relevant documents and records in their custody; (3) requiring respondents to prepare a report on the preservation and logging of the aforementioned documents; (4) appointing a neutral special master to: oversee and ensure compliance with the preservation and logging of the aforementioned documents and records, identify and preserve the names of any living witnesses and lists of minors to whom Brother/Father Edward Flanagan (“Flanagan”) had access to through respondents who may have relevant information to this case, and to provide notice to those minors of their rights under the Child Victims Act (“CVA”), and to order immediate discovery of elderly witnesses; (5) requiring respondents to pay petitioner's reasonable costs and attorneys' fees; and (6) all other relief the Court deems just, necessary and equitable:
Order to Show Cause, Affirmation in Support, Petition in Support 1
Affidavit of Fr. Raymond Finch on behalf of Maryknoll, Exhibits 1-2,
Maryknoll's Memorandum of Law in Opposition 2
Petitioner's Memorandum of Law in Reply to Maryknoll 3
Archdiocese's Affirmation in Opposition, Exhibits A-C 4
Maryknoll's Affirmation in Further Opposition, Exhibit A 5
Petitioner's Affirmation in Further Support of the Petition, Exhibits A-C,
Petitioner's Memorandum of Law In Further Support 6
Upon the foregoing papers and the proceedings held on June 27, 2019 and July 11, 2019, this motion is determined as follows:
Petitioner alleges that its decedent, Ralph Stewart Gallagher (the “decedent”), was sexually abused by Flanagan during the 1960s, when the decedent was ages four to eleven years old. The factual claims made in the petition include the following: Flanagan was a religious “brother” at Maryknoll, who was ultimately ordained as a priest. While at Maryknoll, Flanagan worked in the area parishes of the Archdiocese, including the parish of Saint John and Saint Mary in Chappaqua, Westchester County, New York, where the decedent's family were parishioners.2 Flanagan's responsibilities included working in the youth ministries of these parishes. During the relevant time period, Flanagan became friendly with the decedent's family, spending time in their Chappaqua home, and traveling with the family on a trip to the Bahamas. Flanagan was often accompanied by a fellow Maryknoll brother, Wil Ament (“Ament”), including on the Bahamas trip with the decedent's family. Flanagan died on or about September 25, 2016, and the decedent died in January 2019.
The Child Victims Act
On February 14, 2019, New York State enacted the Child Victims Act (L. 2019 c.11) (“CVA”) which, inter alia, (1) extended the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL 30.10 [f] ); (2) extended the time which civil actions based upon such criminal conduct may be brought until the child victim reaches 55 years old (see CPLR 208 [b] ); and (3) opened a one-year window reviving civil actions for which the statute of limitations has already run (even in cases that were litigated and dismissed on limitations grounds), commencing six months after the effective date of the measure, i.e. August 14, 2019 (see CPLR 214-g).
The Present Application
Petitioner seeks certain pre-action discovery, including (a) the identity or identities, including contact information, of minors with whom Flanagan had access through Maryknoll and the Archdiocese who may have relevant information to this case; (b) the identity or identities, including contact information, of all of Flanagan's supervisors, subordinates and co-workers at Maryknoll and the Archdiocese; and (c) all relevant documents in the respondents' custody, possession, or control, in both physical and electronic formats, of relevant clergy personnel files; records; journals; notes; internal investigative memoranda; law enforcement or regulatory agency reports; public or private investigations, and complaints concerning any alleged misconduct by Flanagan. Petitioner also seeks an order directing respondents to preserve and log all documents referenced in category (c), above, as well as directing respondents to prepare a report on the preservation and logging of this information. Lastly, petitioner seeks the appointment of a neutral master/referee to oversee and ensure compliance with the aforementioned preservation and logging of information, to identify any witnesses and minors to whom Flanagan had access through respondents, who may have relevant information to this case, and to provide notice to those minors of their rights under the CVA, and to order immediate discovery of elderly witnesses.
Contentions of the Parties
In support of this application, petitioner alleges that Flanagan abused the decedent, as well as other boys, through his employment by respondents, and that such abuse occurred at respondents' facilities and under their auspices. Petitioner contends that during the time of the alleged abuse of the decedent, Flanagan was employed by Maryknoll and was acting under the authority of the Archdiocese.
Petitioner argues that pre-action discovery is necessary to aid in the prosecution of its forthcoming complaint, to frame the pleadings, ensure compliance with the one-year statute of limitations provided by the look-back provision of the CVA, and to preserve information.
Petitioner contends that the names of relevant fact witnesses and documentation are necessary in order to conduct an investigation and to adequately frame the complaint. Additionally, petitioner argues, discovery of any other Flanagan victims would support petitioner's allegations that Maryknoll was on notice concerning Flanagan's alleged propensities to commit the alleged abuse. As to the sought discovery concerning Flanagan's supervisors and co-workers, petitioner asserts that it is necessary to identify additional defendants.
Petitioner maintains that the foregoing materials and information, including the identity of witnesses that are material to petitioner's allegations, are within the exclusive control of respondents. Specifically, petitioner states that Canon Law mandates that respondents maintain a database of archived clergy personnel. Petitioner argues that pre-action discovery is appropriate when there is a strong possibility that necessary evidence will be lost or destroyed, voicing concerns that information concerning Flanagan may become unavailable.
Because neither the decedent nor Flanagan is alive, and because witnesses who were adults at the time of the alleged abuse are now elderly, it is petitioner's position that an urgency exists concerning discovery of surviving fact witnesses, especially the deposition of Ament who petitioner believes to be living in Iowa. Petitioner asserts that Ament's deposition is necessary as he witnessed the alleged abuse during the Bahamas trip.
Respondents, in opposing the petition, contend that petitioner has failed to meet the standard required under New York law for pre-action discovery. They argue that petitioner has failed to demonstrate a meritorious cause of action in that petitioner, as represented by decedent's sister as the voluntary administrator of the decedent's estate, has no personal knowledge of the events, and that therefore petitioner's allegations amount to nothing more than speculation and surmise, lacking any factual basis.
Respondents further argue that petitioner has failed to demonstrate that any of the pre-action discovery being sought is material and necessary to frame a complaint, since insofar as petitioner has identified the alleged abuser, the period of time when the alleged abuse occurred, how the decedent and the abuser knew each other, and the religious order the alleged abuser belonged to, petitioner's papers demonstrate that she has sufficient information to frame her complaint.
As to the information sought by petitioner concerning other people who may themselves have been victims of sexual abuse, Maryknoll argues that no reasonable explanation is provided as to why petitioner is entitled to that sensitive information. The Archdiocese agrees that the identities of other minors have no bearing on petitioner's potential causes of action.
The Archdiocese contends that petitioner has failed to allege that the decedent's purported injuries are attributable to the Archdiocese or that petitioner has first-hand knowledge of the alleged abuse or Flanagan's relationship, if any, with the Archdiocese. The Archdiocese further observes that petitioner does not allege that the alleged abuse was reported to anyone at the Archdiocese, or that the Archdiocese knew or should have known of any propensities by Flanagan to commit the acts alleged. The Archdiocese maintains that Flanagan was employed by Maryknoll, not by the Archdiocese, and that the Archdiocese had no dominion or control over the employment process utilized by Maryknoll. The Archdiocese declares that it does not have control over any Maryknoll members, current or former, and cannot be compelled to produce documents or witnesses it does not possess or control.
Respondents also object to petitioner's request for information concerning Flanagan's co-workers and superiors. They contend that petitioner may commence an action against respondents and that information concerning additional defendants would be revealed in the ordinary course of discovery. As to petitioner's allegations concerning Ament, respondents argue that the submissions lack any factual representation that he accompanied Flanagan to the decedent's home or that his testimony is necessary to frame a complaint.
Concerning petitioner's request for the preservation of documents, Maryknoll states that on or about October 29, 2018, it received a letter from James Sheehan, Charity Bureau Chief of the Office of the New York State Attorney General, entitled “Litigation Hold for NYS Attorney General Investigation Into the Catholic Church” (the “Litigation Hold”). This letter advised that its recipients were required pursuant to the Litigation Hold to preserve any and all documents concerning:
“1. allegations of improper sexual conduct by any personnel of your religious institute; 2. any response by your religious institute or any government agency to any allegation of improper sexual conduct by any personnel of your religious institute, including, without limitation, internal reports, findings, or determinations; 3. documents relating to improper sexual conduct held pursuant to the provisions of Canon Law; 4. payments made, or compensation of any kind, to alleged victims of improper sexual conduct, their family members, or anyone on their behalf; 5. the use or enforcement of non-disclosure or confidentiality agreements in connection with allegations of improper sexual conduct; 6. policies and procedures relating to improper sexual conduct; and 7. personnel files or the equivalent thereof of any person against whom any allegation of improper sexual conduct has been made.”3
The Litigation Hold letter required that all information, documents, and records contained or referred to in the letter be preserved from January 1, 1950, to the present, and continuing thereafter.
In his affidavit, Father Raymond Finch, M.M., the Superior General of the Maryknoll Fathers and Brothers (“Finch”), states that on or about November 5, 2018, he advised the Maryknoll General Counsel group by email of the Litigation Hold and directed “every Maryknoll Society member and every Maryknoll Society employee to comply with the above directions and to cooperate with this investigation.” Counsel for Maryknoll states that he has met with Finch, Father Joseph M. Everson, III, M.M. Vicar General of the Maryknoll Fathers and Brothers, and Jennifer Halloran, Director of the Maryknoll Mission Document Archives, and affirms that upon these meetings and his personal review of the documents at the Maryknoll Mission archives, Maryknoll is complying with all document retention requirements consistent with the Litigation Hold.
The Archdiocese states that it is also retaining and preserving records in accordance with the Litigation Hold and contends that petitioner's request for such preservation of records is thereby rendered moot. The Archdiocese also argues that petitioner is impermissibly attempting to seek discovery during the six-month waiting period before the CVA goes into effect on August 14, 2019.
CPLR 3102 governs the methods of obtaining disclosure. Relative to pre-action disclosure, subsection (c) provides in part: “Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Although this section may be used to preserve evidence or to identify potential defendants, it “may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing” (Uddin v New York City Transit Authority, 27 AD3d 265, 266 [1st Dept 2006]). A petition under this section should be granted only when the petitioner has demonstrated a meritorious cause of action (Holzman v Manhattan and Bronx Surface Transit Operating Authority, 271 AD2d 346 [1st Dept 2000]). Affidavits submitted in this regard must be made by someone with first-hand knowledge of the underlying facts (Nicol v Town of Rotterdam, 134 AD2d 754, 755 [3d Dept 1987]). A petition for pre-action disclosure based entirely upon the affirmation of a petitioner's attorney without first-hand knowledge of the underlying facts is insufficient and should be denied (id.), since an affirmation of an attorney which is not based upon personal knowledge of the facts is of no probative value or evidentiary significance (Onewest Bank, FSB v Michel, 143 AD3d 869 [2d Dept 2016]).
The petition herein lacks support by anyone with first-hand knowledge of the allegations that the decedent was abused by Flanagan. The only affidavit submitted is that of petitioner's counsel, who does not demonstrate first-hand knowledge of the alleged abuse. Moreover, there has been no proffer of a certificate crediting the authority of the decedent's sister to act as a voluntary administrator on behalf of the decedent's estate (see Surrogate's Court Procedure Act § 1304).
Even if petitioner had provided proper support for the petition, it appears, based upon the assertions made in support of this petition, that petitioner already has sufficient information to frame a complaint. Where a party “possesses sufficient information to enable him to frame a complaint the pre-action disclosure he seeks is unavailable to him” (Matter of Ryan v Marsh & McLennan Intl., 70 AD2d 567, 567 [1st Dept 1979]; see Matter of Rann v Metropolitan Transp. Auth., 22 AD3d 586 [2d Dept 2005]; Holzman v Manhattan & Bronx Surface Tr. Operating Auth., 271 AD2d 346, 347 [1st Dept 2000]). Here, petitioner has identified the name of the alleged abuser and his affiliated religious order, and has provided details concerning the alleged relationship between the decedent and Flanagan, including the relative time frame in which the alleged abuse occurred.
The Court further finds that petitioner has failed to demonstrate a basis for granting pre-action discovery of the names of other children or witnesses who may have information relevant to petitioner's allegations. Nor has petitioner demonstrated a basis for pre-action discovery of the names of Flanagan's co-workers or supervisors. To the extent that the petition seeks this information in order to identify additional defendants, that information can be obtained through normal discovery channels once an action has been commenced.
As for the portion of the petition which seeks to preserve certain documents, respondents have demonstrated that they are aware of the necessity of preserving all relevant documents and information in their custody and control and that they are adhering to the dictates of the Litigation Hold. No additional protections are warranted here.
With respect to petitioner's desire to take Ament's deposition to preserve his testimony, it is noted that this relief was absent from petitioner's initial papers and was raised for the first time in petitioner's reply papers. Additionally, nothing has been offered which demonstrates that Ament, to the extent that he is still living and competent to testify, neither of which has been demonstrated, has any first-hand knowledge of the alleged abuse. Other than counsel's conclusory statements referencing a photograph of an unidentified man and child, and asserting that it depicts the decedent with Ament during the decedent's family's trip to the Bahamas, nothing of an evidentiary nature has been offered which supports petitioner's allegations that Ament even knew the decedent. Notably, petitioner has not provided an affidavit by any member of the decedent's family stating Ament was on that trip, identifying Ament as the man in the photograph, or supporting any of petitioner's allegations concerning Ament. “[M]ere conclusory statements of suspicion and conjecture are insufficient” to grant disclosure under CPLR 3102 (c) (Matter of Gleich, 111 AD2d 130, 131 [1st Dept 1985]). Therefore, nothing before the Court establishes the claim that the requested pre-action disclosure is necessary to preserve information (see Zeigler v City of New York, 65 AD3d 1159 [2d Dept 2009]).
Accordingly, petitioner's application is denied in its entirety.
All arguments raised and materials submitted on this matter have been considered by this Court, notwithstanding the absence of specific reference thereto.
In light of the foregoing, it is:
ORDERED that petitioner's application is denied in its entirety; and it is further
ORDERED that any applications not expressly addressed herein are deemed denied; and it is further
ORDERED that petitioner shall serve a copy of this Decision and Order with notice of entry within three (3) days thereof.
The foregoing constitutes the Decision and Order of this Court.
1. The Catholic Foreign Mission Society of America, Inc. a/k/a Maryknoll Fathers and Brothers a/k/a The Maryknoll Society, Maryknoll Fathers' Mission Society, Inc. (collectively “Maryknoll”) and The Roman Catholic Archdiocese of New York (the “Archdiocese”).
2. Maryknoll's International headquarters is located in Ossining, New York, also in Westchester County.
3. The letter further advised that the recipient was required to preserve “information from your system of records, including hardcopy and documentary records, and other systems, as well as electronic records,video recordings, audio recordings, e-mail or social media accounts maintained directly or by orthrough third parties, QuickBooks records, clinical records, billings records, computer systems,removable electronic media, and other systems. “Other systems” include word processing documents spreadsheets, databases, calendars, telephone logs, Internet usage files and network access information. You should also preserve the following platforms in your possession or in the possession of an entity or third party under your control: databases, networks, computer systems, including legacy systems (hardware and software), servers, archives, backup or disaster recovery systems, tapes, discs, drives, cartridges, cloud storage, other storage media, laptops, personal computers, and tablets.”
Terry Jane Ruderman, J.