Preview
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM INDEX NO. E2020001864
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3287983
Book Page CIVIL
Return To: No. Pages: 19
MICHAEL R. WOLFORD
350 Linden Oaks Instrument: MEMO OF LAW
Third Floor
Rochester, NY 14625 Control #: 202212201377
Index #: E2020001864
Date: 12/20/2022
DOE, LG 55 Time: 6:16:20 PM
GRASSO, JOSEPH A.
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
1 of 19
202212201377 12/20/2022 06:16:20 PM CIVIL
202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
LG 55 DOE,
Plaintiff, MEMORANDUM OF LAW
vs. Index No.: E2020001864
JOSEPHzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
A GRASSO,
Defendant.
1
14 7 5 0 4 4 2 .2 zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
2 of 19
202212201377 12/20/2022 06:16:20 PM CI202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
Table of Contents
Preliminary Statement ........................................................................... Page 1
Facts ................................................................................................. Page 1
I. Plaintiff's Allegations are Contradicted by Record Evidence .................. Page 7
A. Plaintiffs Allegations are Contradicted by Documentary Evidence ... Page 9
B. Summary of the Pertinent Undisputed Facts ............................... Page 11
C. Plaintiff's Allegations are Contradicted by Witness Testimony ......... Page 12
II. Plaintiff has a History of Being Untruthful ........................................... Page 14
Conclusion ........................................................................................... Page 17
2
14750442.2
3 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
PRELIMINARY STATEMENT
With the passage of the Child Victims Act (CPLR 214-g) ("CVA") there has been a
tidal wave of new lawsuits filed against alleged perpetrators, many of whom were members
of religious and other organizations such as the Boy Scouts and the Catholic Church. While
the majority of these claims are meritorious, unfortunately, there are a few where
unscrupulous individuals have used this well-intended law to benefit themselves at the
expense of an innocent party. That is the situation in the present case.
Father Joseph Grasso has spent his entire life and career helping children, adults
and those less fortunate find true purpose and meaning in their lives. When this lawsuit was
filed, and an article was written in the Democrat & Chronicle about the accusations made
against Father Grasso, instead of more victims coming forward (which often occurs in
situations of legitimate abuse), numerous colleagues and former students and parents of
students¹
former of Father Grasso came to his defense. Plaintiff, a self-proclaimed drug
addict has alleged he was abused by Father Grasso. However, in response to repeatedly
being confronted with evidence reflecting his lies, or that contradicted his claims of abuse,
he has changed his story. Plaintiff has repeatedly changed the facts surrounding his claims
of abuse by Father Grasso because the abuse never occurred. Plaintiff's claims are driven
by his addiction and his greed. For each of these reasons, Father Grasso is entitled to
Summary Judgment dismissing this action with prejudice.
FACTS
Father Joseph Grasso is a Roman Catholic Priest and a member of the Society of
the Precious Blood, which is a Roman Catholic religious order that operates in Canada and
I A in
sampling of theemails and letterssubmitted support of Father Grasso are submitted and are identifiedas Exhibit
23
3
4 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
in the United States. See Affidavit of Father Joseph Grasso, sworn to October 7, 2022
("Grasso Aff.") at ¶1. Father Grasso is presently a Chaplain at the Veterans Administration
Medical Center in Albany, New York and has held that position since January of 2008. M.
at ¶2. In this position he provides counseling and religious services to military veterans of
the United States who are located in the Albany, New York area. Id.
Father Grasso taught Elementary School in Syracuse, New York for five years from
September of 1977 until 1982 and also taught for a special program in the Syracuse City
School District from September 1982 until 1984. Id. at ¶7. He was ordained to the
priesthood on July 31, 1992, after having received a Master's in Divinity degree from Sacred
Heart Seminary in Hales Corners, Wisconsin which he attended from January of 1989 to
May of 1992. M. at ¶3. Following his Ordination, Father Grasso served as an Associate
Pastor in Niles, Ohio and then taught students at St. Albert Catholic School in Council Bluffs,
Iowa. M. at ¶4.
Father Grasso first moved to the Rochester, New York area when he became a
religion teacher at Bishop Kearney High School in Rochester and he held that position from
September 1995 until June 1998. Id. at¶5. From September 1996 until September of 1997,
Father Grasso was Chairperson for the Religion Department at Bishop Kearney High
School. Id. In September 1998 he became the Principal of Siena Catholic Academy
("Siena") in Rochester, New York. M. at 16. Siena was a Middle School operated by the
Rochester Catholic Diocese and it provided education to students in Seventh and Eighth
Grades. M. Father Grasso served as the Principal of Siena until the end of June 2004 when
he became the Principal of Aquinas Institute of Rochester. Id. While at Siena, which had
360 students, Father Grasso had an excellent relationship with the students. M. at ¶10.
4
5 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
Father Grasso then served as the Principal for Aquinas Institute (where there were 950
students) until July 2005 when he moved on to serve as the Principal of DeSales High
School in Geneva, New York from July 2005 until August 2007. 14. at ¶6, 10. During all of
the years that Father Grasso taught either in public or religious institutions, he had never
been the subject of a complaint by a student or a parent of a student (other than this
Complaint). ld. at ¶9. See also, Affidavit of Timothy Leahy, sworn to October 4, 2022
("Leahy Aff.") at ¶8.
Plaintiff initially alleged in his Amended Complaint that beginning approximately the
1st day of January 2002 and continuing through sometime in 2003, Father Grasso assaulted
and sexually abused him while he was a student at Siena. See Dkt. No. 2 at ¶6. Father
Grasso adamantly denies this accusation. Grasso Aff. at110. Further, Plaintiff did not begin
attending Siena until September 2002. Wolford Aff. at 14(A). Plaintiff also represented to
the Court that the first individual to whom he disclosed he had been sexually assaulted was
Dr. Patricia Halligan, who provided Plaintiff with psychological counseling for his mental
health issues and heroin addiction. Se_e Wolford Aff. at 14(B) and Ex. 2 at Interrogatory
Responses 7(a) through (j). Dr. Halligan denies that Plaintiff ever told her he had been
sexually assaulted by a Catholic priest. See Affidavit of Patricia Halligan, M.D., sworn to
May 19, 2021, ("Halligan Aff.") which is submitted herewith, at ¶7. Instead, Plaintiff's
treatment with Dr. Halligan focused on his heroin addiction, which she described as "one of
observed."
the worst cases of heroin addiction that [she] had ever Id. at ¶5. She also treated
Plaintiff for the abusive relationship he had with his father, who regularly called him a
shit."
"worthless piece of 14. at ¶6. Further, despite Plaintiff claiming that he had advised
four other medical professionals about the alleged sexual abuse by Father Grasso, none of
5
6 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
those providers acknowledged that communication in their extensive treatment notes. See
Wolford Aff. at 14(C), (H) and Exhibit 12. In fact, Shelby Smith from Strong Recovery
indicated in her notes that Plaintiff had told her that he had been sexually assaulted by a
coach when he was 9 and 11 years old. Wolford Aff. at 14(S) and Exhibit 25. Further,
Erin Weingart, who treated Plaintiff for over a year, stated that Plaintiff specifically denied
being sexually abused, and in fact, mainly discussed his father being verbally abusive to
him. Wolford Aff. at 14(C), (N), Exhibits 4, 20.
In addition, the Plaintiff was interviewed at the Unity Health System in April of 2016
in advance of the treatment provided to him. In this interview, he advised that he had never
been sexually abused and furthermore claimed as he did previously to those at Strong
Recovery, that he was a basketball referee for the NCAA for the past two years. Plaintiff has
now admitted that this was a blatant lie.
As reflected in the Affirmation of Michael Wolford, submitted herewith, Plaintiff has
been caught in numerous lies, in addition to the ones specifically relating to his abuse
allegations. Plaintiffs relationship to the truth was best summarized by healthcare provider
Pamela Marini from Strong Recovery, who simply stated that you cannot believe anything
time."
that Plaintiff says because he "lies all the Wolford Aff. at14(M), Exhibit 19.
Father Grasso acknowledges that after reviewing the yearbook of Siena which
identifies plaintiff who was a student at the school, he does not recall ever meeting the
plaintiff or having any conversation with him during the time that he was a student at Siena.
M. at ¶11. Father Grasso never called Plaintiff to his office during homeroom or at any
other time, and this fact has been verified by Plaintiffs homeroom teacher. M. at ¶11. See
Affidavit of Eugene Marino, sworn to October 10, 2022 ("Marino Aff.") at ¶6.
6
7 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
Father Grasso made ithis practice to never be alone with a student while he was the
Principal at Siena. Grasso Aff at 12. For this reason, he had his secretary, Margaret Pixley
sit in his office and remain there whenever a student entered. Grasso Aff. at ¶12; Affidavit
of Margaret Pixley ("Pixley Aff.") at ¶4, 5; Leahy Aff. at ¶7. Furthermore, Father Grasso's
office had a large window in which anyone in the hallway could observe any activity in that
office. Grasso Aff. at ¶12. A copy of a photograph of the window to Father Grasso's office
and the hallway where his office could be observed is submitted as Exhibit C to Grasso Aff.
Father Grasso's office was also adjacent to the Nurse's office and the office of the Assistant
Registrar and both offices had doors that were always open to the Principal's office. Grasso
Aff. at ¶14; Leahy Aff. at ¶5. Any conversation occurring in Father Grasso's office would be
heard by persons who were in the Nurse's office or the Registrar's office. Grasso Aff. at
¶14; Affidavit of Patricia Ahearn, sworn to October 13, 2022 ("Ahearn Aff.") at ¶3-5. Aff.
Although Plaintiff claimed he was sexually abused in the St. Thomas Moore church
in rooms adjacent to the alter, Father Grasso never went into St. Thomas Moore Church
with students unless there were a group of students going to confession. Grasso Aff. at ¶13.
Twice per year the school invited other priests to come to the church and all of the students
would be given the opportunity to provide confessions to individual priests. Id. Other than
those instances, Father Grasso never went into the St. Thomas Moore Church and could
not have engaged in the conduct alleged by the Plaintiff. ld.
I. Plaintiff's Allegations are Contradicted by Record Evidence
While it iswell-settled that in a motion for summary judgment, the court must view
the evidence in the light most favorable to the non-moving party, this does not mean that
the court must accept "feigned issues of fact where none truly exists". Luce v. Fleck, 59
7
8 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
Misc.3d 1084, 1088 (N.Y. Sup. Ct. 2018); quoting Mann v. AutoZone Northeast, Inc., 148
A.D.3d 1646, 1646 (4th Dep't 2017); see also Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d
233, 231 (1978) ("only the existence of a bona fide issue raised by evidentiary facts and not
one based on conclusory or irrelevant allegations will suffice to defeat summary judgment").
Also, while a "court may not weigh the credibility of the affiants on a motion for
judgment", this rule is subject to an important caveat - "unless it appears
summary clearly
that the issues are not genuine, but feigned". Glick & Dolleck v. Tri-Pac Export Corp., 22
N.Y.2d 439, 441 (1968). Further, when documentary evidence conclusively establishes that
an issue of fact is "not genuine, but feigned", it is appropriate to summarily resolve the
matter. Leo v. Mt. St. Michael Academy, 272 A.D.2d 145, 146 (1st Dep't 2000); quoting
Glick, 22 N.Y.2d at 441; see also Carlin v. Crum & Forster Ins. Co., 191 A.D.2d 373, 373
(1st Dep't 1993); American Realty Co. v. 64 B Venture, 176 A.D.2d 226, 227 (1st Dep't
1991).
Testimony from witnesses which contradict a non-moving party's statements or
allegations also can be considered by a court as a basis for granting summary judgment.
See Valenti v. Exxon Mobil Corp., 50 A.D.3d 1382, 1384 (3rd Dep't 2008); Est. of Mirjani v.
DeVito, 135 A.D.3d 616, 617 (1st Dep't 2016). Finally, self-serving testimony, which either
is contrary to all other evidence or contradicted by prior statements by the party, is
insufficient to defeat a motion for summary judgment. See Holmes v. McCrea, 186 A.D.3d
1043, 1045 (4th Dep't 2020); Smalls v. Adams, 118 A.D.3d 693, 695 (2d Dep't 2014).
A. Plaintiff's Allegations are Contradicted by Documentary Evidence
Plaintiff's credibility, an issue that this Court should take into account when deciding
this motion is demonstrated by a series of contradicted allegations, misrepresentations, and
8
14750442.2
9 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
admitted untruths he has made on numerous occasions. A significant amount of Plaintiff's
allegations have been contradicted evidence - contradictions or
by documentary notably,
misrepresentations that were made in his course of treatment with various medical providers
who treated him over the years.
As previously stated, documentary evidence may be used to show that an alleged
issue is in fact not genuine, but feigned. Leo, 272 A.D.2d at 146; see also Rashid v. Estevez,
47 A.D.3d 786, 787 (2d Dep't 2008).
In Leo, the defendant submitted documentary evidence of a weather report to
successfully rebut plaintiff's claim that he slipped and fellon wet stairs. Leo, 272 A.D.2d at
145. Because this documentary evidence directly contradicted plaintiff's claims, the
defendant was granted summary judgment. Ld. at 146. In Rashid, the affirmation of
plaintiffs treating physician regarding injuries allegedly sustained by the plaintiff was
contradicted by the physician's own testing results which revealed that the plaintiff did not
This'
in fact suffer from those injuries. Rashid, 47 A.D.3d at 787. contradiction by
documentary evidence led to the court to grant Defendanes summary judgment motion. Id.
Here, a plethora of Plaintiff's allegations have similarly been contradicted by his
statements to multiple medical providers, regarding the alleged abuse he suffered, and the
details associated with the alleged abuse. Plaintiff represented to the Court that the first
individual he advised that he was sexually abused by a Catholic priest was Dr. Patricia
Halliagan, who provided Plaintiff with psychological counseling for his mental health issues
and heroin addiction. See Wolford Aff. at 14(B) and Exhibit 2 at Interrogatory Responses
7(a) through (j). However, Dr. Halligan denies that Plaintiff ever told her that he was sexually
assaulted by a Catholic Priest. Halligan Aff. at 17.
9
14750442.2
10 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
Plaintiff also alleged he told four other medical professionals about the alleged sexual
abuse by Father Grasso. However, none of those providers acknowledged the alleged
abuse in any of their treatment notes. See Wolford Aff. at ¶4(C), (H) and Exhibit 12. While
one provider, Shelby Smith, indicated that Plaintiff claimed he had been sexually assaulted
by a coach when he was nine and eleven years old, there were no allegations regarding
sexual abuse by a priest, nor specifically by Father Grasso. Wolford Aff. at ¶4(R) and Exhibit
18. Further, another provider, Erin Weingart, stated that Plaintiff specifically denied being
sexually abused, and instead mainly discussed his father being verbally abusive towards
him. Wolford Aff. at ¶4(C), Exhibit 4.
Finally, itmust be noted that Plaintiff initially alleged in his Amended Complaint that
the alleged sexual abuse by Father Grasso started on or about January 1, 2022, and
continued until sometime in 2003, while Plaintiff was a student at Siena. S_ee Dkt. No. 2 at
¶6. However, Plaintiff did not begin attending Siena until September 2022, flatly
contradicting his allegation that the abuse began on or about January 1, 2022. Wolford Aff.
at $4(A), Ex. 1.
Plaintiff's self-serving testimony that he informed multiple medical providers about
the alleged abuse he suffered is patently false, based upon Plaintiff's medical records, and
the lack of any notation reflecting Plaintiff's allegations therein. Plaintiff's allegation that the
alleged abuse began on or about January 1, 2002, is also patently false, based upon his
enrollment records at Siena. This is all significant evidence that this Court should consider
in determining whether Plaintiff's allegations are in fact not genuine but feigned.
10
14750442.2
11 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
B. Summary of the Pertinent Undisputed Facts
Based upon the Affidavits submitted in support of Defendanes motion for summary
judgment, including the sections of Plaintiff's deposition along with the medical records
reflecting the treatment provided Plaintiff, it is undisputed that the following has been
demonstrated:
1. Although Plaintiff claimed he had advised Dr. Patricia Halligan and his
therapist Erin Weingart that he had been sexually abused, neither health care provider
verified that claim.
2. The Plaintiff made claims to the healthcare providers that he was employed
by the NCAA as a basketball official and was earning $100,000 a year, even though he was
unemployed, and it appears that he never actually had a salaried job which provided him
with regular income based upon his Social Security statement (Exhibit 22).
3. When confronted with these exaggerated claims of employment, attendance
at law school and claims relating to his abilities that were false, he denied ever making those
statements and claimed that the healthcare provider misinterpreted what he had said
4. Based upon the very thorough report of Dr. Jerid Fisher, who examined
Plaintiff on April 13, 2022, it is evident that Plaintiff is a pathological liar who has become
addicted to heroin and is fabricating the claims against Defendant.
5. Despite the claims by Plaintiff that Defendant sexually assaulted him in the
hallways of Siena, there is not a single witness who corroborates any of Plaintiff's claims or
can testify that Plaintiff stated that he was abused.
11
14750442.2
12 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
6. Even though Plaintiff claims he was sexually assaulted in seventh and eighth
grades while attending Siena Catholic, he never advised anyone, including fellow students,
faculty, or even his parents, of this alleged sexual assault.
7. Based upon the Affidavits of faculty member Eugene Marino, secretary
Margaret Pixley and Patricia Ahern, and Vice Principal Timothy Leahy, it isimpossible for
the Defendant to have engaged in this alleged sexual abuse and to not have been
discovered by anyone including students, faculty, and parents.
C. Plaintiff's Allegations are Contradicted by Witness Testimony
In addition to Plaintiff's allegations being contradicted by documentary evidence,
Plaintiff's allegations are further contradicted by testimony from Father Grasso, as well as
other witnesses who worked at Siena during the time of the alleged abuse.
Witness affidavits that contradict a party's testimony are often taken into
consideration by courts in determining a summary judgment motion. See Valenti, 50 A.D.3d
at 1384; Est. of Miriani, 135 A.D.3d at 617.
In Valenti, a slip and fall case, the defendant presented the testimony of witnesses
that did not see plaintiff slip on ice, as he had alleged, along with plaintiff's deposition
testimony that he fellwhile stepping off a curb after exiting the defendanes store, and never
saw the ice which allegedly caused the fall. Valenti, 50 A.D.3d at 1384. Plaintiff's
contradictory testimony, along with the testimony from defendanes witnesses which
contradicted plaintiff's alleged version of events, was sufficient for the court to grant
summary judgment in favor of the defendant. 1d.
In Est. of Mirjani, a case involving an automobile accident, the plaintiff had firsttold
police officers, both in a police report, and as reflected in an officer's deposition testimony,
12
14750442.2
13 of 19
202212201377 12/20/2022 06:16:20 PM CI 202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
that he did not recall how the accident occurred. Est. of Mirjani, 135 A.D.3d at 617.
However, at plaintiffs deposition, he acknowledged making that statement to the police, but
then testified he had regained his memory several months later when he visited the scene
contradicted"
of the accident. Ed. Such testimony was "flatly by other witnesses at the scene,
as well as a co-plaintiff, who was the passenger in Plaintiffs vehicle at the time of the
accident. Id. Based upon the foregoing, the court held that the plaintiffs testimony appeared
to have been submitted to "avoid the consequences of his prior admission . . . and thus,
judgment."
insufficient to defeat [defendants'] motion for ... partial summary Id.; quoting
Garzon-Victoria v. Okolo, 116 A.D.3d 558, 558 (1st Dep't 2014); see also Buchinger v. Jazz
Leasing Corp., 95 A.D.3d 1053, 1053 (2d Dep't 2012); Nieves v. JHH Transp., LLC, 40
A.D.3d 1060, 1060 (2d Dep't 2007).
Here, testimony from Father Grasso as well as multiple other fact witnesses flatly
contradict Plaintiffs allegations, and further demonstrate that Plaintiffs claims should not be
believed. Notably, Father Grasso has testified that after reviewing the yearbook of Siena,
identifying Plaintiff as being a student of the school, he does not recall ever meeting Plaintiff
or having any conversation with him during the time that Plaintiff was a student at Siena.
Grasso Aff. at ¶11. Father Grasso further testified that he never called Plaintiff to his office
during homeroom, or any other time, which is verified by testimony from Plaintiffs homeroom
teacher, Eugene Marino. Id., see also Marino Aff. at ¶6.
Plaintiffs allegations regarding alleged abuse which occurred in Father Grasso's
office are contradicted by witness testimony, and should be disregarded. Father Grasso
would never be alone with a student in his office while he was Principal of Siena. Instead,
his secretary, Margret Pixley, would sit in his office during any meetings with students.
13
14 of 19
202212201377 12/20/2022 06:16:20 PM CIVIL
202212201377
INDEX NO. E2020001864
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022
Grasso Aff. at ,t12; Pixley Aff. at f]4. Further, Father Grasso's office had a large window in
which anyone in the hallway could see into the office. Grasso Aff. at f]12. Father Grasso's
office also was adjacent to the Nurse's office, and the Assistant Registrar's office, and both
of those offices had doors that were always open to Father Grasso's office, and as a result,
any conversations occurring in Father Grasso's office would be heard by anyone present in
the adjacent offices. Grasso Aff. at f]14; Leahy Aff. at f5; Ahearn Aff. at f[3-5. This fact was
confirmed by both Patricia Ahern, a secretary at Siena, and by Timothy Leahy, Vice Principal
of Siena- both of whom worked at Siena during the time of Plaintiffs allegations. See
generally Ahearn Aff.; Leahy Aff.
The witness testimony discussed above illustrates Father Grasso's interactions with
students and the layout of Father Grasso's office - which directly contradict Plaintiffs
allegations of sexual assault that allegedly occurred in Father Grasso's office.
II.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA
Plaintiff has a_History of Being Untruthful
As previously stated, as a general matter, "credibility is an issue that should be left to
a fact finder at trial, 'there are of course instances where credibility is properly determined
as a matter of law"". Holmes, 186 A.D.3d at 1044; quoting Sexstone v Amato, 8 A.D.3d
1116, 1117 (4th Dep't 2004), Iv denied 3 N.Y.3d 609 (2004); see Finley v Erie & Niagara
Ins. Assn., 162 AD3d 1644, 1645-1646 (4th Dept 2018). Similarly, while it is not ordinarily
the court's function to assess credibility on a motion for summary judgment, a court may do
so where untruths are clearly apparent. Kurth v. Lawlor, 183 A.D.2d 1060, 1062 (3rd Dep't
1992); see Glick, 22 N.Y.2d at 441.
Plaintiffs history of lying, being untruthful, or misrepresenting things that have
happened to him are best summarized by a statement from one of his healthcare providers,
Preview
FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM INDEX NO. E2020001864 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3287983 Book Page CIVIL Return To: No. Pages: 19 MICHAEL R. WOLFORD 350 Linden Oaks Instrument: MEMO OF LAW Third Floor Rochester, NY 14625 Control #: 202212201377 Index #: E2020001864 Date: 12/20/2022 DOE, LG 55 Time: 6:16:20 PM GRASSO, JOSEPH A. Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 19 202212201377 12/20/2022 06:16:20 PM CIVIL 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE LG 55 DOE, Plaintiff, MEMORANDUM OF LAW vs. Index No.: E2020001864 JOSEPHzyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA A GRASSO, Defendant. 1 14 7 5 0 4 4 2 .2 zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA 2 of 19 202212201377 12/20/2022 06:16:20 PM CI202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 Table of Contents Preliminary Statement ........................................................................... Page 1 Facts ................................................................................................. Page 1 I. Plaintiff's Allegations are Contradicted by Record Evidence .................. Page 7 A. Plaintiffs Allegations are Contradicted by Documentary Evidence ... Page 9 B. Summary of the Pertinent Undisputed Facts ............................... Page 11 C. Plaintiff's Allegations are Contradicted by Witness Testimony ......... Page 12 II. Plaintiff has a History of Being Untruthful ........................................... Page 14 Conclusion ........................................................................................... Page 17 2 14750442.2 3 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 PRELIMINARY STATEMENT With the passage of the Child Victims Act (CPLR 214-g) ("CVA") there has been a tidal wave of new lawsuits filed against alleged perpetrators, many of whom were members of religious and other organizations such as the Boy Scouts and the Catholic Church. While the majority of these claims are meritorious, unfortunately, there are a few where unscrupulous individuals have used this well-intended law to benefit themselves at the expense of an innocent party. That is the situation in the present case. Father Joseph Grasso has spent his entire life and career helping children, adults and those less fortunate find true purpose and meaning in their lives. When this lawsuit was filed, and an article was written in the Democrat & Chronicle about the accusations made against Father Grasso, instead of more victims coming forward (which often occurs in situations of legitimate abuse), numerous colleagues and former students and parents of students¹ former of Father Grasso came to his defense. Plaintiff, a self-proclaimed drug addict has alleged he was abused by Father Grasso. However, in response to repeatedly being confronted with evidence reflecting his lies, or that contradicted his claims of abuse, he has changed his story. Plaintiff has repeatedly changed the facts surrounding his claims of abuse by Father Grasso because the abuse never occurred. Plaintiff's claims are driven by his addiction and his greed. For each of these reasons, Father Grasso is entitled to Summary Judgment dismissing this action with prejudice. FACTS Father Joseph Grasso is a Roman Catholic Priest and a member of the Society of the Precious Blood, which is a Roman Catholic religious order that operates in Canada and I A in sampling of theemails and letterssubmitted support of Father Grasso are submitted and are identifiedas Exhibit 23 3 4 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 in the United States. See Affidavit of Father Joseph Grasso, sworn to October 7, 2022 ("Grasso Aff.") at ¶1. Father Grasso is presently a Chaplain at the Veterans Administration Medical Center in Albany, New York and has held that position since January of 2008. M. at ¶2. In this position he provides counseling and religious services to military veterans of the United States who are located in the Albany, New York area. Id. Father Grasso taught Elementary School in Syracuse, New York for five years from September of 1977 until 1982 and also taught for a special program in the Syracuse City School District from September 1982 until 1984. Id. at ¶7. He was ordained to the priesthood on July 31, 1992, after having received a Master's in Divinity degree from Sacred Heart Seminary in Hales Corners, Wisconsin which he attended from January of 1989 to May of 1992. M. at ¶3. Following his Ordination, Father Grasso served as an Associate Pastor in Niles, Ohio and then taught students at St. Albert Catholic School in Council Bluffs, Iowa. M. at ¶4. Father Grasso first moved to the Rochester, New York area when he became a religion teacher at Bishop Kearney High School in Rochester and he held that position from September 1995 until June 1998. Id. at¶5. From September 1996 until September of 1997, Father Grasso was Chairperson for the Religion Department at Bishop Kearney High School. Id. In September 1998 he became the Principal of Siena Catholic Academy ("Siena") in Rochester, New York. M. at 16. Siena was a Middle School operated by the Rochester Catholic Diocese and it provided education to students in Seventh and Eighth Grades. M. Father Grasso served as the Principal of Siena until the end of June 2004 when he became the Principal of Aquinas Institute of Rochester. Id. While at Siena, which had 360 students, Father Grasso had an excellent relationship with the students. M. at ¶10. 4 5 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 Father Grasso then served as the Principal for Aquinas Institute (where there were 950 students) until July 2005 when he moved on to serve as the Principal of DeSales High School in Geneva, New York from July 2005 until August 2007. 14. at ¶6, 10. During all of the years that Father Grasso taught either in public or religious institutions, he had never been the subject of a complaint by a student or a parent of a student (other than this Complaint). ld. at ¶9. See also, Affidavit of Timothy Leahy, sworn to October 4, 2022 ("Leahy Aff.") at ¶8. Plaintiff initially alleged in his Amended Complaint that beginning approximately the 1st day of January 2002 and continuing through sometime in 2003, Father Grasso assaulted and sexually abused him while he was a student at Siena. See Dkt. No. 2 at ¶6. Father Grasso adamantly denies this accusation. Grasso Aff. at110. Further, Plaintiff did not begin attending Siena until September 2002. Wolford Aff. at 14(A). Plaintiff also represented to the Court that the first individual to whom he disclosed he had been sexually assaulted was Dr. Patricia Halligan, who provided Plaintiff with psychological counseling for his mental health issues and heroin addiction. Se_e Wolford Aff. at 14(B) and Ex. 2 at Interrogatory Responses 7(a) through (j). Dr. Halligan denies that Plaintiff ever told her he had been sexually assaulted by a Catholic priest. See Affidavit of Patricia Halligan, M.D., sworn to May 19, 2021, ("Halligan Aff.") which is submitted herewith, at ¶7. Instead, Plaintiff's treatment with Dr. Halligan focused on his heroin addiction, which she described as "one of observed." the worst cases of heroin addiction that [she] had ever Id. at ¶5. She also treated Plaintiff for the abusive relationship he had with his father, who regularly called him a shit." "worthless piece of 14. at ¶6. Further, despite Plaintiff claiming that he had advised four other medical professionals about the alleged sexual abuse by Father Grasso, none of 5 6 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 those providers acknowledged that communication in their extensive treatment notes. See Wolford Aff. at 14(C), (H) and Exhibit 12. In fact, Shelby Smith from Strong Recovery indicated in her notes that Plaintiff had told her that he had been sexually assaulted by a coach when he was 9 and 11 years old. Wolford Aff. at 14(S) and Exhibit 25. Further, Erin Weingart, who treated Plaintiff for over a year, stated that Plaintiff specifically denied being sexually abused, and in fact, mainly discussed his father being verbally abusive to him. Wolford Aff. at 14(C), (N), Exhibits 4, 20. In addition, the Plaintiff was interviewed at the Unity Health System in April of 2016 in advance of the treatment provided to him. In this interview, he advised that he had never been sexually abused and furthermore claimed as he did previously to those at Strong Recovery, that he was a basketball referee for the NCAA for the past two years. Plaintiff has now admitted that this was a blatant lie. As reflected in the Affirmation of Michael Wolford, submitted herewith, Plaintiff has been caught in numerous lies, in addition to the ones specifically relating to his abuse allegations. Plaintiffs relationship to the truth was best summarized by healthcare provider Pamela Marini from Strong Recovery, who simply stated that you cannot believe anything time." that Plaintiff says because he "lies all the Wolford Aff. at14(M), Exhibit 19. Father Grasso acknowledges that after reviewing the yearbook of Siena which identifies plaintiff who was a student at the school, he does not recall ever meeting the plaintiff or having any conversation with him during the time that he was a student at Siena. M. at ¶11. Father Grasso never called Plaintiff to his office during homeroom or at any other time, and this fact has been verified by Plaintiffs homeroom teacher. M. at ¶11. See Affidavit of Eugene Marino, sworn to October 10, 2022 ("Marino Aff.") at ¶6. 6 7 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 Father Grasso made ithis practice to never be alone with a student while he was the Principal at Siena. Grasso Aff at 12. For this reason, he had his secretary, Margaret Pixley sit in his office and remain there whenever a student entered. Grasso Aff. at ¶12; Affidavit of Margaret Pixley ("Pixley Aff.") at ¶4, 5; Leahy Aff. at ¶7. Furthermore, Father Grasso's office had a large window in which anyone in the hallway could observe any activity in that office. Grasso Aff. at ¶12. A copy of a photograph of the window to Father Grasso's office and the hallway where his office could be observed is submitted as Exhibit C to Grasso Aff. Father Grasso's office was also adjacent to the Nurse's office and the office of the Assistant Registrar and both offices had doors that were always open to the Principal's office. Grasso Aff. at ¶14; Leahy Aff. at ¶5. Any conversation occurring in Father Grasso's office would be heard by persons who were in the Nurse's office or the Registrar's office. Grasso Aff. at ¶14; Affidavit of Patricia Ahearn, sworn to October 13, 2022 ("Ahearn Aff.") at ¶3-5. Aff. Although Plaintiff claimed he was sexually abused in the St. Thomas Moore church in rooms adjacent to the alter, Father Grasso never went into St. Thomas Moore Church with students unless there were a group of students going to confession. Grasso Aff. at ¶13. Twice per year the school invited other priests to come to the church and all of the students would be given the opportunity to provide confessions to individual priests. Id. Other than those instances, Father Grasso never went into the St. Thomas Moore Church and could not have engaged in the conduct alleged by the Plaintiff. ld. I. Plaintiff's Allegations are Contradicted by Record Evidence While it iswell-settled that in a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, this does not mean that the court must accept "feigned issues of fact where none truly exists". Luce v. Fleck, 59 7 8 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 Misc.3d 1084, 1088 (N.Y. Sup. Ct. 2018); quoting Mann v. AutoZone Northeast, Inc., 148 A.D.3d 1646, 1646 (4th Dep't 2017); see also Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 233, 231 (1978) ("only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment"). Also, while a "court may not weigh the credibility of the affiants on a motion for judgment", this rule is subject to an important caveat - "unless it appears summary clearly that the issues are not genuine, but feigned". Glick & Dolleck v. Tri-Pac Export Corp., 22 N.Y.2d 439, 441 (1968). Further, when documentary evidence conclusively establishes that an issue of fact is "not genuine, but feigned", it is appropriate to summarily resolve the matter. Leo v. Mt. St. Michael Academy, 272 A.D.2d 145, 146 (1st Dep't 2000); quoting Glick, 22 N.Y.2d at 441; see also Carlin v. Crum & Forster Ins. Co., 191 A.D.2d 373, 373 (1st Dep't 1993); American Realty Co. v. 64 B Venture, 176 A.D.2d 226, 227 (1st Dep't 1991). Testimony from witnesses which contradict a non-moving party's statements or allegations also can be considered by a court as a basis for granting summary judgment. See Valenti v. Exxon Mobil Corp., 50 A.D.3d 1382, 1384 (3rd Dep't 2008); Est. of Mirjani v. DeVito, 135 A.D.3d 616, 617 (1st Dep't 2016). Finally, self-serving testimony, which either is contrary to all other evidence or contradicted by prior statements by the party, is insufficient to defeat a motion for summary judgment. See Holmes v. McCrea, 186 A.D.3d 1043, 1045 (4th Dep't 2020); Smalls v. Adams, 118 A.D.3d 693, 695 (2d Dep't 2014). A. Plaintiff's Allegations are Contradicted by Documentary Evidence Plaintiff's credibility, an issue that this Court should take into account when deciding this motion is demonstrated by a series of contradicted allegations, misrepresentations, and 8 14750442.2 9 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 admitted untruths he has made on numerous occasions. A significant amount of Plaintiff's allegations have been contradicted evidence - contradictions or by documentary notably, misrepresentations that were made in his course of treatment with various medical providers who treated him over the years. As previously stated, documentary evidence may be used to show that an alleged issue is in fact not genuine, but feigned. Leo, 272 A.D.2d at 146; see also Rashid v. Estevez, 47 A.D.3d 786, 787 (2d Dep't 2008). In Leo, the defendant submitted documentary evidence of a weather report to successfully rebut plaintiff's claim that he slipped and fellon wet stairs. Leo, 272 A.D.2d at 145. Because this documentary evidence directly contradicted plaintiff's claims, the defendant was granted summary judgment. Ld. at 146. In Rashid, the affirmation of plaintiffs treating physician regarding injuries allegedly sustained by the plaintiff was contradicted by the physician's own testing results which revealed that the plaintiff did not This' in fact suffer from those injuries. Rashid, 47 A.D.3d at 787. contradiction by documentary evidence led to the court to grant Defendanes summary judgment motion. Id. Here, a plethora of Plaintiff's allegations have similarly been contradicted by his statements to multiple medical providers, regarding the alleged abuse he suffered, and the details associated with the alleged abuse. Plaintiff represented to the Court that the first individual he advised that he was sexually abused by a Catholic priest was Dr. Patricia Halliagan, who provided Plaintiff with psychological counseling for his mental health issues and heroin addiction. See Wolford Aff. at 14(B) and Exhibit 2 at Interrogatory Responses 7(a) through (j). However, Dr. Halligan denies that Plaintiff ever told her that he was sexually assaulted by a Catholic Priest. Halligan Aff. at 17. 9 14750442.2 10 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 Plaintiff also alleged he told four other medical professionals about the alleged sexual abuse by Father Grasso. However, none of those providers acknowledged the alleged abuse in any of their treatment notes. See Wolford Aff. at ¶4(C), (H) and Exhibit 12. While one provider, Shelby Smith, indicated that Plaintiff claimed he had been sexually assaulted by a coach when he was nine and eleven years old, there were no allegations regarding sexual abuse by a priest, nor specifically by Father Grasso. Wolford Aff. at ¶4(R) and Exhibit 18. Further, another provider, Erin Weingart, stated that Plaintiff specifically denied being sexually abused, and instead mainly discussed his father being verbally abusive towards him. Wolford Aff. at ¶4(C), Exhibit 4. Finally, itmust be noted that Plaintiff initially alleged in his Amended Complaint that the alleged sexual abuse by Father Grasso started on or about January 1, 2022, and continued until sometime in 2003, while Plaintiff was a student at Siena. S_ee Dkt. No. 2 at ¶6. However, Plaintiff did not begin attending Siena until September 2022, flatly contradicting his allegation that the abuse began on or about January 1, 2022. Wolford Aff. at $4(A), Ex. 1. Plaintiff's self-serving testimony that he informed multiple medical providers about the alleged abuse he suffered is patently false, based upon Plaintiff's medical records, and the lack of any notation reflecting Plaintiff's allegations therein. Plaintiff's allegation that the alleged abuse began on or about January 1, 2002, is also patently false, based upon his enrollment records at Siena. This is all significant evidence that this Court should consider in determining whether Plaintiff's allegations are in fact not genuine but feigned. 10 14750442.2 11 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 B. Summary of the Pertinent Undisputed Facts Based upon the Affidavits submitted in support of Defendanes motion for summary judgment, including the sections of Plaintiff's deposition along with the medical records reflecting the treatment provided Plaintiff, it is undisputed that the following has been demonstrated: 1. Although Plaintiff claimed he had advised Dr. Patricia Halligan and his therapist Erin Weingart that he had been sexually abused, neither health care provider verified that claim. 2. The Plaintiff made claims to the healthcare providers that he was employed by the NCAA as a basketball official and was earning $100,000 a year, even though he was unemployed, and it appears that he never actually had a salaried job which provided him with regular income based upon his Social Security statement (Exhibit 22). 3. When confronted with these exaggerated claims of employment, attendance at law school and claims relating to his abilities that were false, he denied ever making those statements and claimed that the healthcare provider misinterpreted what he had said 4. Based upon the very thorough report of Dr. Jerid Fisher, who examined Plaintiff on April 13, 2022, it is evident that Plaintiff is a pathological liar who has become addicted to heroin and is fabricating the claims against Defendant. 5. Despite the claims by Plaintiff that Defendant sexually assaulted him in the hallways of Siena, there is not a single witness who corroborates any of Plaintiff's claims or can testify that Plaintiff stated that he was abused. 11 14750442.2 12 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 6. Even though Plaintiff claims he was sexually assaulted in seventh and eighth grades while attending Siena Catholic, he never advised anyone, including fellow students, faculty, or even his parents, of this alleged sexual assault. 7. Based upon the Affidavits of faculty member Eugene Marino, secretary Margaret Pixley and Patricia Ahern, and Vice Principal Timothy Leahy, it isimpossible for the Defendant to have engaged in this alleged sexual abuse and to not have been discovered by anyone including students, faculty, and parents. C. Plaintiff's Allegations are Contradicted by Witness Testimony In addition to Plaintiff's allegations being contradicted by documentary evidence, Plaintiff's allegations are further contradicted by testimony from Father Grasso, as well as other witnesses who worked at Siena during the time of the alleged abuse. Witness affidavits that contradict a party's testimony are often taken into consideration by courts in determining a summary judgment motion. See Valenti, 50 A.D.3d at 1384; Est. of Miriani, 135 A.D.3d at 617. In Valenti, a slip and fall case, the defendant presented the testimony of witnesses that did not see plaintiff slip on ice, as he had alleged, along with plaintiff's deposition testimony that he fellwhile stepping off a curb after exiting the defendanes store, and never saw the ice which allegedly caused the fall. Valenti, 50 A.D.3d at 1384. Plaintiff's contradictory testimony, along with the testimony from defendanes witnesses which contradicted plaintiff's alleged version of events, was sufficient for the court to grant summary judgment in favor of the defendant. 1d. In Est. of Mirjani, a case involving an automobile accident, the plaintiff had firsttold police officers, both in a police report, and as reflected in an officer's deposition testimony, 12 14750442.2 13 of 19 202212201377 12/20/2022 06:16:20 PM CI 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 that he did not recall how the accident occurred. Est. of Mirjani, 135 A.D.3d at 617. However, at plaintiffs deposition, he acknowledged making that statement to the police, but then testified he had regained his memory several months later when he visited the scene contradicted" of the accident. Ed. Such testimony was "flatly by other witnesses at the scene, as well as a co-plaintiff, who was the passenger in Plaintiffs vehicle at the time of the accident. Id. Based upon the foregoing, the court held that the plaintiffs testimony appeared to have been submitted to "avoid the consequences of his prior admission . . . and thus, judgment." insufficient to defeat [defendants'] motion for ... partial summary Id.; quoting Garzon-Victoria v. Okolo, 116 A.D.3d 558, 558 (1st Dep't 2014); see also Buchinger v. Jazz Leasing Corp., 95 A.D.3d 1053, 1053 (2d Dep't 2012); Nieves v. JHH Transp., LLC, 40 A.D.3d 1060, 1060 (2d Dep't 2007). Here, testimony from Father Grasso as well as multiple other fact witnesses flatly contradict Plaintiffs allegations, and further demonstrate that Plaintiffs claims should not be believed. Notably, Father Grasso has testified that after reviewing the yearbook of Siena, identifying Plaintiff as being a student of the school, he does not recall ever meeting Plaintiff or having any conversation with him during the time that Plaintiff was a student at Siena. Grasso Aff. at ¶11. Father Grasso further testified that he never called Plaintiff to his office during homeroom, or any other time, which is verified by testimony from Plaintiffs homeroom teacher, Eugene Marino. Id., see also Marino Aff. at ¶6. Plaintiffs allegations regarding alleged abuse which occurred in Father Grasso's office are contradicted by witness testimony, and should be disregarded. Father Grasso would never be alone with a student in his office while he was Principal of Siena. Instead, his secretary, Margret Pixley, would sit in his office during any meetings with students. 13 14 of 19 202212201377 12/20/2022 06:16:20 PM CIVIL 202212201377 INDEX NO. E2020001864 FILED: MONROE COUNTY CLERK 12/20/2022 06:15 PM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 12/20/2022 Grasso Aff. at ,t12; Pixley Aff. at f]4. Further, Father Grasso's office had a large window in which anyone in the hallway could see into the office. Grasso Aff. at f]12. Father Grasso's office also was adjacent to the Nurse's office, and the Assistant Registrar's office, and both of those offices had doors that were always open to Father Grasso's office, and as a result, any conversations occurring in Father Grasso's office would be heard by anyone present in the adjacent offices. Grasso Aff. at f]14; Leahy Aff. at f5; Ahearn Aff. at f[3-5. This fact was confirmed by both Patricia Ahern, a secretary at Siena, and by Timothy Leahy, Vice Principal of Siena- both of whom worked at Siena during the time of Plaintiffs allegations. See generally Ahearn Aff.; Leahy Aff. The witness testimony discussed above illustrates Father Grasso's interactions with students and the layout of Father Grasso's office - which directly contradict Plaintiffs allegations of sexual assault that allegedly occurred in Father Grasso's office. II.zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA Plaintiff has a_History of Being Untruthful As previously stated, as a general matter, "credibility is an issue that should be left to a fact finder at trial, 'there are of course instances where credibility is properly determined as a matter of law"". Holmes, 186 A.D.3d at 1044; quoting Sexstone v Amato, 8 A.D.3d 1116, 1117 (4th Dep't 2004), Iv denied 3 N.Y.3d 609 (2004); see Finley v Erie & Niagara Ins. Assn., 162 AD3d 1644, 1645-1646 (4th Dept 2018). Similarly, while it is not ordinarily the court's function to assess credibility on a motion for summary judgment, a court may do so where untruths are clearly apparent. Kurth v. Lawlor, 183 A.D.2d 1060, 1062 (3rd Dep't 1992); see Glick, 22 N.Y.2d at 441. Plaintiffs history of lying, being untruthful, or misrepresenting things that have happened to him are best summarized by a statement from one of his healthcare providers,