Supreme Court, Kings County, October 5, 2023

Nahid A. Shaikh for plaintiff.

Joel P. Iannuzzi for Diocese of Burlington, defendant.

Plaintiff commenced the instant action by filing a summons and complaint on July 21, 2020, which alleges that from approximately 1981 to 1984, when plaintiff was approximately 14 to 17 years old, plaintiff attended Monsignor McClancy Memorial High School, within the Diocese of Brooklyn, where he was sexually assaulted by Father Leo J. Courcy, Jr (Courcy). As this action relates to the Diocese of Burlington, plaintiff alleges that Courcy was ordained as a priest by the Diocese of Burlington in May 1962 and served as a priest in parishes of the Diocese of Burlington from approximately 1962 to February 1965. Thereafter the Diocese of Burlington received credible allegations of child sexual abuse by Courcy, who was placed on a leave of absence for a year before returning to active duty from approximately February 1966 to December 1966.

Thereafter, Courcy was sent to Jemez Springs, New Mexico, where a Catholic Order known as the Servants of the Paraclete operated a treatment center for pedophile priests. Courcy remained in New Mexico until June 1970, before serving as a priest in Amarillo, Texas, and thereafter returning to active assignments in parishes in the Diocese of Burlington, in or about January 1971. Plaintiff alleges that by the time of Courcy's return to service in the Diocese of Burlington, said Diocese "knew with substantial certainty that Father Courcy would engage in child sexual abuse in his assignments as a Priest." Courcy was transferred to the Archdiocese [*2]of New York in or about the late 1970s, remaining under the supervision and control of the Archdiocese of Burlington. Courcy continued to function as a priest until the Diocese removed his faculties while he was assigned to St. Augustine Parish in New York City in 1993. Later, in 2009, the Diocese of Burlington, and then-Bishop of the Diocese of Burlington, Salvatore Matano, laicized, or removed Courcy from the priesthood.

On May 27, 2021, the Diocese of Burlington filed a motion to dismiss, arguing that this court does not have personal jurisdiction over it. Plaintiff opposed, and alternatively sought jurisdictional discovery.{**81 Misc 3d at 696}

Pursuant to a decision and order dated March 3, 2023, the court (Love, J.) granted the motion to dismiss. (ARK301 Doe v Diocese of Brooklyn, 2023 NY Slip Op 30717[U] [Sup Ct, Kings County 2023].) The court did not address plaintiff's request for jurisdictional discovery. The court granted the motion, over its own acknowledged misgivings, based on its determination that the decision in Edwardo v Roman Catholic Bishop of Providence (579 F Supp 3d 456, 470 [SD NY 2022]) was binding upon it, and notwithstanding the court's specific statement that it disagreed with the holding in Edwardo.

The March 3, 2023 decision held in pertinent part:

"While this Court disagrees with the holding and would frankly prefer a different outcome as, accepting all of plaintiff's allegations as true, the Diocese of Burlington knew of Courcy's dangerous propensities and, in its control of Courcy, transferred him to New York, where he did allegedly abuse plaintiff, then the Diocese of Burlington should reasonably expect to be called into court in New York. Justice calls out for the Diocese of Burlington to be subject to discovery and address this matter on the merits rather th[a]n short circuiting the process." (2023 NY Slip Op 30717[U], *5 [emphasis added].)

On May 10, 2023, plaintiff moved for reargument of the decision dismissing the action against the Archdiocese of Burlington. The motion was fully briefed by May 11, 2023.

For the reasons stated below, the motion to reargue is granted, and upon reargument the decision dismissing the action against the Archdiocese of Burlington is vacated and plaintiff's request for jurisdictional discovery is granted.

"A motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." (CPLR 2221 [d] [2].) The purpose of such a motion is "to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." (Kent v 534 E. 11th St., 80 AD3d 106, 116 [1st Dept 2010].)

CPLR 2221 (a) provides that a motion for leave to reargue shall be made to the judge who signed the order unless he is{**81 Misc 3d at 697} for any reason unable to hear it. On July 28, 2023, Justice Love was appointed to sit on the Appellate Division, Second Department. On August 18, 2023, Deputy Chief Administrative Judge Deborah A. Kaplan issued an administrative order (AO/131/2023) which provided:

"Pursuant to the authority vested in me as Deputy Chief Administrative Judge, and in order to bring about the fair and expeditious resolution of all cases currently pending in New York City under the Child Victims Act (CVA), aggregated pursuant to 22 NYCRR 202.72, I hereby direct that those cases previously assigned to the Honorable Laurence Love, be forthwith reassigned to the Honorable Sabrina Kraus due to Justice Love's [*3]designation to the Appellate Division, Second Department. Justice Kraus is designated as co-coordinating judge with the Honorable Alexander Tisch for all purposes until further order."

Based on the foregoing, the court holds that Justice Love is unable to hear the motion pursuant to CPLR 2221 (a) and that the motion is appropriately before this court for determination.

The court finds that the March 3, 2023 order erred in two respects. The first is that the order treated Edwardo as binding authority, even though the court expressly stated it did not agree with the holding in Edwardo. This court finds that Edwardo is factually distinguishable from the case at bar, and that even if it were not, it is not binding authority on this court. The second is that the order failed to address plaintiff's request for jurisdictional discovery even while holding that "[j]ustice calls out for the Diocese of Burlington to be subject to discovery."

Edwardo is factually distinguishable and not binding on this court.

[1] In Edwardo, the plaintiff was a resident of Rhode Island and a parishioner of a Rhode Island parish where he met the perpetrator, who went on to sexually abuse him during a trip to New York. The purpose of the trip to New York was for the perpetrator to assist a penitent of the perpetrator with testimony and solicit a charitable donation from the penitent. (579 F Supp 3d 456, 463.) The court recognized that although the perpetrator travelled to New York in his priestly capacity, with defendants' knowledge, hoping to solicit a charitable contribution, "the overriding purpose of [the trip] was largely {**81 Misc 3d at 698}divorced from Defendants' usual operations." (Id. at 475 ["As a general matter, the provision of testimony in criminal cases does not relate to any ordinary function of an individual or entity affiliated with the Roman Catholic Church"].) The court held that it did not have personal jurisdiction over the Providence Diocese because the perpetrator's singular trip to New York could not reflect the defendants' purposeful decision to invoke the benefits of New York laws.

In stark contrast, here, plaintiff attended Monsignor McClancy High School in the Diocese of Brooklyn in New York. He met Courcy as a priest at the school here in New York. The Diocese of Burlington moved Courcy from Burlington to the Brooklyn Diocese and kept him in New York for 15 years for the sole purpose of acting as a priest and conducting priestly duties here. This is clearly in line with the "ordinary function of an individual . . . affiliated with the Roman Catholic Church." (Id.) Moreover, it is important to note that at all times during his 15 years working in New York, Courcy remained employed by the Diocese of Burlington.

Additionally, part of the court's analysis in Edwardo focused on the argument that the priest did not "act[ ] for Defendants' benefit when he committed the tortious conduct giving rise to the action." (Id. at 469.) The court then went on to explain how the priest's sexual abuse cannot be for the benefit of the Providence Diocese. However, here plaintiff seeks to acquire jurisdiction over an entity that was a primary actor in the underlying causes of action, not some entity that had no part in what happened to plaintiff.

Plaintiff asserts that the tortious act at issue here is the negligence of Diocese of Burlington in sending Courcy to New York, allowing him to minister and work with children in New York, and not removing him from working with children knowing that he was a sexual predator. Plaintiff alleges that the Diocese of Burlington conspired with its priests and other dioceses to cover up its tortious conduct, and engaged in the same pattern in the case of other offending priests. The dioceses worked with each other to transfer Courcy from diocese to diocese to avoid public speculation and legal consequences of his abuse.[*4]

Plaintiff asserts that the Diocese of Burlington exercised control over Courcy who did act for the benefit of and with the knowledge and consent of the Diocese of Burlington. The Diocese of Burlington concedes that at all times it "knew where {**81 Misc 3d at 699}Courcy was working and under whose auspices." (NY St Cts Elec Filing [NYSCEF] Doc No. 52, Diocese of Burlington reply brief at 4, in ARK644 Doe v Archdiocese of New York, Sup Ct, NY County, index No. 951179/2021.) Courcy acted for the benefit of the Diocese in exercising ministry in New York. By simply being in New York, Courcy acted for the benefit of the Diocese because he was away from Vermont where the Diocese risked even more legal exposure. (See Does 1—9 v Compcare, Inc., 52 Wash App 688, 698-699, 763 P2d 1237, 1243-1244 [1988] [noting that where out-of-state Diocese placed abusive priest in forum state "to avoid the harmful publicity to the Diocese and avoid worsening pending (sexual abuse) suits" in the Diocese's home state, the Diocese "directly benefited"].) Plaintiff argues this is sufficient to confer jurisdiction under CPLR 302 (a) (2).

Finally, the court notes that Justice Love was not bound by the decision in Edwardo even without relying on the factual distinctions discussed above. "[I]t is well settled that lower federal court decisions are 'not binding' on New York state courts (People v Garvin, 30 NY3d 174, 182 n 6 [2017]; see also D'Alessandro v Carro, 123 AD3d 1, 6 [1st Dept 2014])." (Teshabaeva v Family Home Care Servs. of Brooklyn & Queens, Inc., 214 AD3d 442, 444 [1st Dept 2023].)

Jurisdictional discovery is warranted in this case.

"As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden of proof on this issue" (Marist Coll. v Brady, 84 AD3d 1322, 1322-1323 [2d Dept 2011]; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624 [2d Dept 2009]). However,

"in opposing a motion to dismiss pursuant to CPLR 3211 (a) (8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth 'a sufficient start, and show[ ] their position not to be frivolous' " (Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]).

"[T]he jurisdictional issue is likely to be complex. Discovery is, therefore, desirable, indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits" (Peterson v Spartan Indus., 33 NY2d at 467; Doe v McCormack, 100 AD3d 684, 684 [2d Dept 2012]).{**81 Misc 3d at 700}

[2] The court finds that plaintiff has made a sufficient start towards showing that their position is not frivolous in terms of arguing that this court can and should exercise long-arm jurisdiction over the Diocese of Burlington.

In addition to plaintiff's arguments addressed above, plaintiff alternatively asserts jurisdiction pursuant to CPLR 302 (a) (1) and (3), arguments which were not addressed in the underlying court order.

Plaintiff argues that the Burlington Diocese is also subject to jurisdiction under CPLR 302 (a) (1) because it transacted business in New York and contracted for services in New York. Jurisdiction under CPLR 302 (a) (1) may be exercised even where there is only one transaction and even where defendant never enters New York, so long as "the defendant's activities [in New York] were purposeful and there is a substantial relationship between the transaction and the claim asserted." (Fischbarg v Doucet, 9 NY3d 375, 380 [2007]; Stardust Dance Prods., Ltd. v Cruise Groups Intl., Inc., 63 AD3d 1262, 1264 [3d Dept 2009].) The relatedness inquiry is "relatively permissive" and the Court of Appeals has "consistently held that causation is not [*5]required." (Licci v Lebanese Can. Bank, SAL, 20 NY3d 327, 339 [2012].)

Plaintiff asserts that the Burlington Diocese engages in business in New York in several ways relevant to plaintiff's claims. The Burlington Diocese sent Courcy to seminary training in New York to further its business, which they assume, but need discovery to confirm, included the cost for his education and training. Additionally, following his incardination into the Burlington Diocese, Courcy—one of the Diocese's priests "on duty outside the Diocese"—exercised priestly ministry in New York in furtherance of the Burlington Diocese's business and with the endorsement of the Bishop of Burlington. Finally, plaintiff argues that the Burlington Diocese purposefully maintained a "continuing relationship" with Courcy during his tenure in New York, and presumably stayed in contact with him and the New York dioceses during these periods. (Fischbarg, 9 NY3d at 380-381 [according weight to out-of-state defendants' regular communication with plaintiff in New York]; Grimaldi v Guinn, 72 AD3d 37, 51-52 [2d Dept 2010] [finding jurisdiction over out-of-state defendants who never entered New York based on "purposeful creation of a continuing relationship"].) Plaintiff asserts each of these activities was purposeful. Further, as discussed above, plaintiff argues there is a substantial relationship{**81 Misc 3d at 701} between the Diocese's transactions—moving Courcy in and out of New York—and his sexual abuse of plaintiff. Had the Burlington Diocese not caused Courcy to exercise ministry in New York or taken any action against him to restrict his access to children, Courcy would have never gained access to plaintiff.

Plaintiff alternatively argues that the Burlington Diocese is also subject to jurisdiction in New York because it committed a tortious act outside New York and meets the requisite criteria of CPLR 302 (a) (3). Jurisdiction exists under CPLR 302 (a) (3) (i) where a defendant "regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state." Alternatively, jurisdiction exists under CPLR 302 (a) (3) (ii) where a defendant "expects or should reasonably expect [its out-of-state tortious act] to have consequences in the state and derives substantial revenue from interstate or international commerce." Plaintiff argues on either of these grounds, the court has jurisdiction over the Burlington Diocese.

The intent of CPLR 302 (a) (3) (i) is to ensure that jurisdiction is conferred only over tortfeasors "who have sufficient contacts with this state so that it is not unfair to require them to answer in this state for injuries they cause here by acts done elsewhere." (12th Ann Rep of Jud Conf of St of NY at 339, 343 [1967].) The degree of business that must be done in New York to meet CPLR 302 (a) (3) (i)'s requirement is less than that which is required to meet the general jurisdiction standard. (Id.) The "persistent course of conduct" provision may be satisfied by noncommercial, nonbusiness activities. (See e.g. Porcello v Brackett, 85 AD2d 917, 917 [4th Dept 1981] [noting lower court's holding that a nonresident engaged in persistent course of conduct in New York "by virtue of his three-semester attendance at Cornell"].)

Plaintiff argues that the Burlington Diocese regularly does business and engages in a persistent course of conduct in New York by remitting payments to the Pontifical Mission Society office in New York, as indicated routinely by a separate line item in the Diocese's financial statements. Additionally, the Diocese, which has no seminary of its own, sends its deacons, priests, and seminarians outside of the diocese for education. This was precisely the case with Courcy, whom the Diocese educated in Syracuse, New York, for work in its Diocese.{**81 Misc 3d at 702}

Alternatively, plaintiff argues this court has jurisdiction under CPLR 302 (a) (3) (ii) because the Burlington Diocese expected or should have reasonably expected Courcy would [*6]sexually abuse children in New York and the Diocese derives revenue from interstate or international commerce. "[T]he defendant need not foresee the specific event that produced the alleged injury. The defendant need only reasonably foresee that any defect in its product would have direct consequences within the State." (LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 215 [2000].) The requirement that defendant derive revenue from interstate or international commerce "is designed to narrow the long-arm reach to preclude the exercise of jurisdiction over nondomiciliaries who might cause direct, foreseeable injury within the State but whose business operations are of a local character." (Id. [internal quotation marks omitted].) Here, it was foreseeable to the Burlington Diocese that its negligent supervision and retention of Courcy would result in consequences in New York. The Burlington Diocese knew or should have known of Courcy's risk of harm to children prior to sending him to New York and took no meaningful action to restrict his access to children in New York. Further, plaintiff argues the Burlington Diocese derives revenue from interstate commerce by sending its priests to New York where it may have shared the expenses associated with employing its priests, such as insurance and living expenses.

CPLR 3211 (d) permits discovery where the facts essential to justify opposition to a motion may exist but cannot be stated without further disclosure. Further, jurisdictional discovery is proper where a plaintiff demonstrates that facts supporting jurisdiction "may exist" and plaintiff has "made a sufficient start" and "shown [plaintiff's] position not to be frivolous." (Peterson v Spartan Indus., 33 NY2d 463, 466-467 [1974].) Plaintiff need not demonstrate that facts "do exist. This obviously must await discovery." (Id. at 466 [emphasis omitted].) Where a plaintiff's assertions regarding defendant's New York contacts constitute a sufficient start, the issue of jurisdiction should not be decided on the basis of conflicting affidavits. (Stardust Dance Prods., Ltd., 63 AD3d at 1265.) In such instances, the issue of jurisdiction should not be decided by the court without discovery. (Edelman v Taittinger, S.A., 298 AD2d 301 [1st Dept 2002].)

Plaintiff has sufficiently asserted that facts "may exist" to justify jurisdiction. Further, plaintiff made reasonable efforts to obtain jurisdictional discovery from the Diocese before responding to its motion. (See NYSCEF Doc Nos. 49-53.){**81 Misc 3d at 703}

The discovery sought is narrowly tailored to the Diocese's employment of Courcy, its financial and business transactions with New York, and the deposition of an individual with knowledge regarding Courcy and the Burlington Diocese's contacts with New York.

These requests are appropriately tailored and reasonable to the question of jurisdiction before this court. Discovery is particularly necessary in this case, where plaintiff was a child at the time the abuse occurred and information regarding Courcy's employment and the Burlington Diocese's presence in New York is in the exclusive possession of the Burlington Diocese.

Wherefore it is hereby ordered that the motion to reargue is granted and upon reargument the March 3, 2023 decision and order dismissing the action as to the Archdiocese of Burlington is vacated, and the motion is denied without prejudice to renewal after the completion of the above ordered discovery; and it is further ordered that within 30 days from the service of this order with notice of entry the Archdiocese of Burlington produce the records requested in the notice to produce (NYSCEF Doc No. 53); and it is further ordered that within 60 days of the date of said production the Archdiocese of Burlington produce an appropriate individual for deposition.