Preview
FILED: ERIE
FRANKLIN COUNTY COUNTYCLERK CLERK02/05/2021
02/04/2022 11:02 03:04
AM PM INDEX
INDEX NO.NO.803751/2020
E2021-552
NYSCEF DOC. NO. 36
27 RECEIVED NYSCEF: 02/05/2021
02/04/2022
STATE OF NEW YORK
PLAINTIFF'S EXHIBIT B
SUPREME COURT: COUNTY OF ERIE
____________________________________________________
PB-19 Doe,
Plaintiff,
AMENDED DECISION
v
Index No. 803751/2020
Orchard Park Central School District,
Orchard Park Middle School,
Defendants,
______________________________________________________
Defendants, Orchard Park Central School District and Orchard Park Middle
School, (hereinafter, collectively OPCSD), moved for summary judgment pursuant to CPLR
3211(a)(5) and (a)(7) (NYSCEF motion 002). Specifically, OPCSD seeks to dismiss mention of
breach of fiduciary duty in the Complaint; the claim for premises liability; and any claims for
punitive damages. Plaintiff opposed the motion. By supplemental motion to dismiss, OPCSD,
also moved to dismiss all claims against Orchard Park Middle School, (NYSCEF motion 003).
There was no opposition to motion 003.
Plaintiff brought this claim under the Child Victims Act (CPLR 214-g). Plaintiff alleges
that he was sexually abused by Kurt Pitzl, an employee of OPCSD, beginning in 1974 and
continuing for "several years."
By way of procedural background, at the request of OPCSD and based on this Court's
decision in Torrey v Portville Central School, 66 Misc. 3d 1225(A) [Sur Ct Cattaraugus County
2020], plaintiff filed an Amended Complaint, eliminating the cause of action for breach of
fiduciary duty, amongst others.
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FILED: ERIE
FRANKLIN COUNTY COUNTYCLERK CLERK02/05/2021
02/04/2022 11:02 03:04
AM PM INDEX
INDEX NO.NO.803751/2020
E2021-552
NYSCEF DOC. NO. 36
27 RECEIVED NYSCEF: 02/05/2021
02/04/2022
Though the Notice of Motion served by defendant refers only to CPLR 3211, OPCSD
mentions both CPLR 3211(a)(5) and (a)(7) in the supporting submissions. CPLR 3211(a)(5)
provides that a "cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party,
payment, release, res judicata, statute of limitations, or statute of frauds. OPCSD lists CPLR
3211(a)(5) as a ground for dismissal but makes no argument in support of dismissing the case on
any of the (a)(5) grounds. Nor can the Court determine the manner in which CPLR 3211(a)(5)
applies to the facts or the arguments. As such, dismissal pursuant to CPLR 3211(a)(5) is denied.
"On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), we
accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible
favorable inference, and determine only whether the facts as alleged fit within any cognizable
legal theory" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 [2017]).
It is initially noted that plaintiff consents to withdrawal of claims for punitive damages.
The motion to dismiss claims for punitive damages is therefore no longer before the court.
OPCSD argues that because plaintiff does not assert a cause of action for breach of
fiduciary duty, mention of such duty should be “dismissed” from the Complaint. The Court
notes the plaintiff, by agreeing to remove the cause of action for breach of fiduciary duty
conceded that no cause of action for breach of fiduciary duty lies against OPCSD. The mention
of a fiduciary duty in the Complaint without a supporting cause of action is improper and
potentially prejudicial to OPCSD. Therefore, any reference to fiduciary duty should be removed
from the Complaint and an Amended Complaint filed.
With respect to the cause of action based on premises liability, OPCSD argues that it
should be dismissed, because plaintiff attempts to hold defendants liable for allowing sexual
2
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FILED: ERIE
FRANKLIN COUNTY COUNTYCLERK CLERK02/05/2021
02/04/2022 11:02 03:04
AM PM INDEX
INDEX NO.NO.803751/2020
E2021-552
NYSCEF DOC. NO. 36
27 RECEIVED NYSCEF: 02/05/2021
02/04/2022
abuse to occur on school property and that such allegations seek to impermissibly expand the
scope of premises liability, citing to Wilson v Diocese of New York of Episcopal Church, 1998
WL 82921, at *6 (S.D.N.Y. Feb. 26, 1998). OPCSD also argues that the premises liability claim
is duplicative of the negligence claim. However, at this stage of the litigation, the allegations
must be accepted as be true and plaintiff should be allowed an opportunity to engage in
discovery. Whether there is factual support for a claim based on premises liability and whether it
is duplicative can be addressed after further discovery in a motion for summary judgment.
By supplemental motion, OPCSD also argues that Orchard Park Middle School is not an
entity capable of being sued, citing to Guerriero v. Sewanhaka Cent. High Sch. Dist., 150
A.D.3d 831, 832 [2nd Dept 2017] (stating "The Supreme Court should have granted that branch
of the defendants' motion which was for summary judgment dismissing the complaint insofar as
asserted against the School, as the School is not a legal entity capable of being sued"). As such
and because the motion was unopposed, OPCSD's motion to dismiss all claims against Orchard
Park Middle School is granted.
Counsel for OPCSD is to prepare and submit an order on both motions, attaching the
Court's decision, in 30 days.
DATED: February 3, 2021
___________________________________
Hon. Deborah A. Chimes, J.S.C.
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Preview
FILED: ERIE FRANKLIN COUNTY COUNTYCLERK CLERK02/05/2021 02/04/2022 11:02 03:04 AM PM INDEX INDEX NO.NO.803751/2020 E2021-552 NYSCEF DOC. NO. 36 27 RECEIVED NYSCEF: 02/05/2021 02/04/2022 STATE OF NEW YORK PLAINTIFF'S EXHIBIT B SUPREME COURT: COUNTY OF ERIE ____________________________________________________ PB-19 Doe, Plaintiff, AMENDED DECISION v Index No. 803751/2020 Orchard Park Central School District, Orchard Park Middle School, Defendants, ______________________________________________________ Defendants, Orchard Park Central School District and Orchard Park Middle School, (hereinafter, collectively OPCSD), moved for summary judgment pursuant to CPLR 3211(a)(5) and (a)(7) (NYSCEF motion 002). Specifically, OPCSD seeks to dismiss mention of breach of fiduciary duty in the Complaint; the claim for premises liability; and any claims for punitive damages. Plaintiff opposed the motion. By supplemental motion to dismiss, OPCSD, also moved to dismiss all claims against Orchard Park Middle School, (NYSCEF motion 003). There was no opposition to motion 003. Plaintiff brought this claim under the Child Victims Act (CPLR 214-g). Plaintiff alleges that he was sexually abused by Kurt Pitzl, an employee of OPCSD, beginning in 1974 and continuing for "several years." By way of procedural background, at the request of OPCSD and based on this Court's decision in Torrey v Portville Central School, 66 Misc. 3d 1225(A) [Sur Ct Cattaraugus County 2020], plaintiff filed an Amended Complaint, eliminating the cause of action for breach of fiduciary duty, amongst others. 1 of 3 FILED: ERIE FRANKLIN COUNTY COUNTYCLERK CLERK02/05/2021 02/04/2022 11:02 03:04 AM PM INDEX INDEX NO.NO.803751/2020 E2021-552 NYSCEF DOC. NO. 36 27 RECEIVED NYSCEF: 02/05/2021 02/04/2022 Though the Notice of Motion served by defendant refers only to CPLR 3211, OPCSD mentions both CPLR 3211(a)(5) and (a)(7) in the supporting submissions. CPLR 3211(a)(5) provides that a "cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds. OPCSD lists CPLR 3211(a)(5) as a ground for dismissal but makes no argument in support of dismissing the case on any of the (a)(5) grounds. Nor can the Court determine the manner in which CPLR 3211(a)(5) applies to the facts or the arguments. As such, dismissal pursuant to CPLR 3211(a)(5) is denied. "On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), we accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 [2017]). It is initially noted that plaintiff consents to withdrawal of claims for punitive damages. The motion to dismiss claims for punitive damages is therefore no longer before the court. OPCSD argues that because plaintiff does not assert a cause of action for breach of fiduciary duty, mention of such duty should be “dismissed” from the Complaint. The Court notes the plaintiff, by agreeing to remove the cause of action for breach of fiduciary duty conceded that no cause of action for breach of fiduciary duty lies against OPCSD. The mention of a fiduciary duty in the Complaint without a supporting cause of action is improper and potentially prejudicial to OPCSD. Therefore, any reference to fiduciary duty should be removed from the Complaint and an Amended Complaint filed. With respect to the cause of action based on premises liability, OPCSD argues that it should be dismissed, because plaintiff attempts to hold defendants liable for allowing sexual 2 2 of 3 FILED: ERIE FRANKLIN COUNTY COUNTYCLERK CLERK02/05/2021 02/04/2022 11:02 03:04 AM PM INDEX INDEX NO.NO.803751/2020 E2021-552 NYSCEF DOC. NO. 36 27 RECEIVED NYSCEF: 02/05/2021 02/04/2022 abuse to occur on school property and that such allegations seek to impermissibly expand the scope of premises liability, citing to Wilson v Diocese of New York of Episcopal Church, 1998 WL 82921, at *6 (S.D.N.Y. Feb. 26, 1998). OPCSD also argues that the premises liability claim is duplicative of the negligence claim. However, at this stage of the litigation, the allegations must be accepted as be true and plaintiff should be allowed an opportunity to engage in discovery. Whether there is factual support for a claim based on premises liability and whether it is duplicative can be addressed after further discovery in a motion for summary judgment. By supplemental motion, OPCSD also argues that Orchard Park Middle School is not an entity capable of being sued, citing to Guerriero v. Sewanhaka Cent. High Sch. Dist., 150 A.D.3d 831, 832 [2nd Dept 2017] (stating "The Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the School, as the School is not a legal entity capable of being sued"). As such and because the motion was unopposed, OPCSD's motion to dismiss all claims against Orchard Park Middle School is granted. Counsel for OPCSD is to prepare and submit an order on both motions, attaching the Court's decision, in 30 days. DATED: February 3, 2021 ___________________________________ Hon. Deborah A. Chimes, J.S.C. 3 3 of 3