TM, Plaintiff,  v Babe Ruth League, Inc., et al., Defendants.

JM, Plaintiff, v Babe Ruth League, Inc., et al., Defendants.

BM, Plaintiff, v New York Archdiocese et al., Defendants.

Supreme Court, Richmond County, May 11, 2023

Bond, Schoeneck & King, Albany (Eric O'Bryan of counsel), for The American Legion Department of New York, defendant in the above-entitled actions.

Nagel Rice LLP, Roseland, New Jersey (Scott Michael Jacobson of counsel), for plaintiffs in the above-entitled actions.

Leahey and Johnson P.C., New York City (Michael G. Dempsey of counsel), for New York Archdiocese, defendant in the first and fourth above-entitled actions.

White & McSpedon, P.C., New York City (Joseph McSpedon of counsel), for St. Clare Roman Catholic Church of Staten Island, defendant in the first above-entitled action.

John M. Dalton, Staten Island, for Watkins-Kellet American Legion Post 277, defendant in the above-entitled actions.

Goetz Schenker Blee & Wiederhorn LLP, New York City (Robert G. Schenker of counsel), for Babe Ruth League, Inc., defendant in second, third and fourth above-entitled actions.

McGivney, Kluger, Clark & Intoccia, P.C., New York City (Kenneth Scott Ross of counsel), for Catholic Youth Organization of Staten Island and another, defendants in the fourth above-entitled action.

Ballard Spahr LLP, New York City (James A. Mitchell of counsel), for Police Athletic League, Inc., defendant in the fourth above-entitled action.

The following e-filed documents, listed by NYSCEF (New{**79 Misc 3d at 1043} York State Courts Electronic Filing System) Document Nos. 85-94 (CH mot seq No. 004), 90-99 (TM mot seq No. 004), 114-123 (JM mot seq No. 004), and 125-135 (BM mot seq No. 004) respectively. Counsel was afforded an opportunity for oral argument; however, all parties chose for the court to decide the motions on submission. The matters were marked fully submitted by the court on April 13, 2023. Defendant's motion seeks an order pursuant to CPLR 3211 (a) (5) and (7) dismissing plaintiffs' amended complaints with prejudice against defendant The American Legion Department of New York or in the alternative, dismissing causes of action in the amended complaints against defendant The American Legion Department of New York, and for such other and further relief as the court deems just, fair, and proper.

Plaintiffs each assert claims against The American Legion Department of New York (American Legion), and other defendants pursuant to the New York Child Victim's Act (CVA), based upon allegations of sexual abuse by their American Legion coach, defendant AS. During the years that plaintiffs allege abuse, AS coached in an American Legion sponsored baseball league for defendant Watkins-Kellet American Legion Post 277 (Post 277), a local post operating under the supervision of defendant American Legion. Plaintiffs assert various negligence causes of action that allege the American Legion, like other defendants, owed plaintiffs a duty of care to protect them from sexual abuse, and they, the defendants, breached their duty to prevent harm to plaintiffs.

A. Plaintiff CH

AS met and coached 16-year-old CH while AS was a member of the Post 277. Around summer of 1982, AS allegedly convinced CH to play for Post 277's team, after CH's high school baseball team had just won a junior varsity championship. During the time that CH was a member of the Post 277 team, it is alleged that AS groomed and repeatedly sexually abused CH. As set forth in CH's complaint, during the years of abuse, American Legion and Post 277's agents, employees, and volunteers witnessed AS spending inordinate amounts of time with CH.

Based on these allegations, CH asserts various negligence causes of action against American Legion, and other defendants, for the failure to institute appropriate policies and procedures for prevention and identification of child sexual{**79 Misc 3d at 1044} abuse, for the failure to properly supervise, monitor and regulate Post 277 and the American Legion baseball league in Staten Island, and for permitting AS to coach, enabling him to repeatedly sexually abuse CH.[*2]

B. Plaintiff TM

It is alleged that while TM was a member of AS's American Legion baseball team in 1977, AS forced TM to perform two acts of oral sex. TM alleges that during this time of abuse, volunteers, directors, and coaches within the American Legion were aware of the amount of "alone time" AS spent with TM and other children selected for special projects. Based upon these assertions, TM alleges various negligence causes of action against American Legion, and other defendants, for the failure to institute appropriate policies and procedures for prevention and identification of child sexual abuse, for the failure to properly supervise, monitor and regulate Post 277 and the American Legion baseball league in Staten Island, and for permitting AS to coach and repeatedly sexually abuse TM.

C. Plaintiff JM

JM was 13 years old in 1974, when AS coached him on an American Legion team. It is alleged that while JM was a member of Post 277's American Legion baseball team, AS sexually abused him. Based upon these assertions, JM alleges various negligence causes of action against American Legion, and other defendants, for the failure to institute appropriate policies and procedures for the prevention and identification of child sexual abuse, for the failure to properly supervise, monitor and regulate Post 277 and the American Legion baseball league in Staten Island, and for permitting AS to coach and repeatedly sexually abuse JM.

D. Plaintiff BM

BM played baseball for AS in connection with Post 277, amongst other teams, between 1974 and 1976. BM alleges repeated sexual molestation and abuse by AS during that time. Based upon these assertions, BM alleges various negligence causes of action against American Legion, and other defendants, for the failure to institute appropriate policies and procedures for the prevention and identification of child sexual abuse, for the failure to properly supervise, monitor and regulate Post 277 and the American Legion baseball league in Staten Island, and for permitting AS to coach and repeatedly sexually abuse BM.{**79 Misc 3d at 1045}

On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Boyle v North Salem Cent. Sch. Dist., 208 AD3d 744 [2d Dept 2022]; Doe v Enlarged City Sch. Dist. of Middletown, 195 AD3d 595 [2d Dept 2021]). "Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

To prevail on a motion to dismiss pursuant to CPLR 3211 (a) (1), a defendant must demonstrate that the proffered documentary evidence "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). For evidence submitted in support of a CPLR 3211 (a) (1) motion [*3]to qualify as "documentary evidence," it must be "unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86 [2d Dept 2010]; see Attias v Costiera, 120 AD3d 1281, 1282 [2d Dept 2014]).

American Legion has failed to conclusively prove that it either owed no duty to plaintiffs, or did not breach any duty to plaintiffs. Several questions of fact are raised throughout the motion practice as to American Legion's control of its leagues and Posts, and its ability to ensure its players are protected from sexual abuse. Moreover, American Legion's arguments that the complaints do not allege that it had control over AS are without merit. It is axiomatic that if the American Legion had control over the programs it had control over the participants, including coaches.

A principal-agent relationship is established by evidence that one person—the principal—has allowed another to act on his or her behalf, subject to his or her control, and evidence of consent by the other person—the agent—to so act. An agent's authority may be express, implied, or apparent (see Time Warner City Cable v Adelphi Univ., 27 AD3d 551, 552 [2d Dept 2006]; Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [2d Dept 1993]). Here, the American Legion allowed AS to act under its authority and control as a baseball coach. It is alleged that AS took advantage of the authority and legitimacy{**79 Misc 3d at 1046} afforded by the American Legion, engaging in sexual abuse of the plaintiffs, as part of his role as a coach. There can be no argument that the American Legion did not have control over the league and AS. Such assertions directly contradict the organizational documents, policies and procedures for the American Legion.

As to the cause of action for negligent hiring and retention, at this stage of the litigation, plaintiffs' allegations need not be plead with specificity (Doe v Enlarged City Sch. Dist. of Middletown, 195 AD3d 595 [2d Dept 2021]). The complaints each explicitly state that the American Legion knew or should have known of AS's propensity, that the American Legion failed to act, and that as a result, the plaintiffs were damaged. At this juncture, the allegations within the complaints are enough to withstand a CPLR 3211 motion to dismiss.

As to the cause of action to recover damages for negligent infliction of emotional distress, American Legion makes no argument that the elements have not been sufficiently pleaded; instead, it alleges that the claim is duplicative. American Legion's argument fails because plaintiffs are permitted to pursue independent and overlapping theories of liability, with each discrete departure requiring separate consideration by a jury (see Steidel v County of Nassau, 182 AD2d 809, 813 [2d Dept 1992]; see also Davis v Caldwell, 54 NY2d 176 [1981]).

Regarding defendant's claim for dismissal pursuant to CPLR 3211 (a) (5), in connection with the statute of limitations, defendant American Legion, in its reply affirmation, has withdrawn the claim, and this court need not go any further in evaluating the issue.

It is hereby ordered that defendant American Legion's coordinated motions to dismiss as to each of the above-captioned plaintiffs, pursuant to CPLR 3211 (a) (5) and (7), are denied, without prejudice to renew upon the completion of discovery, and it is further ordered that the clerk of the court shall enter judgment accordingly.

The remaining contentions of the parties are either wholly without merit, or having been [*4]considered, were found unavailing.