Preview
FILED: QUEENS COUNTY CLERK 11/16/2023 01:38 PM INDEX NO. 714190/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 11/16/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
___________________________________________
ROSELYN BONILLA,
Plaintiff, Index No. 714190/2023
-against-
PHOENIX HOUSE SPRINGFIELD GARDENS,
PHOENIX HOUSES OF NEW YORK, INC.,
PHOENIX HOUSE FAMILY FOUNDATION, INC.,
PHOENIX HOUSE MANAGEMENT CORPORATION,
and, JOHN DOE,
Defendants.
___________________________________________
MEMORANDUM OF LAW IN SUPPORT OF
PHOENIX HOUSE DEFENDANTS PRE-ANSWER MOTION FOR PARTIAL
DISMISSAL OF PLAINTIFF’S COMPLAINT
LIPPES MATHIAS LLP
Brian C. Mahoney, Esq.
Attorneys for Phoenix House Defendants
50 Fountain Plaza, Suite 1700
Buffalo, New York 14202
(716) 853-5100
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PRELIMINARY STATEMENT
Defendants Phoenix House Springfield Gardens, Phoenix Houses of New York, Inc.,
Phoenix House Family Foundation, Inc., and Phoenix House Management Corporation
(collectively “Phoenix House”), submit this memorandum of law in support of its pre-answer
motion pursuant to CPLR 3211(A)(7) for partial dismissal of plaintiff’s Complaint as against
Phoenix House.
Plaintiff commenced this action pursuant to the Adult Survivor’s Act alleging she was
subject to unpermitted sexual conduct. The sexual conduct allegedly occurred in 2004 while the
plaintiff was in a residential treatment facility. The plaintiff alleges that she was subjected to sexual
conduct by John Doe, a counselor at the facility.
The plaintiff has asserted three causes of action against Phoenix House: 1) Fourth cause of
action alleging negligence, 2) Fifth cause of action alleging negligent hiring, retention and
supervision, and 3) Sixth cause of action alleging negligent infliction of emotional distress. For
the reasons set forth below, Phoenix House moves to dismiss the Sixth cause of action in plaintiff’s
Complaint.
RELEVANT FACTS
Plaintiff commenced this action by filing a Summons and Complaint in Supreme Court,
Queens County, on July 11, 2023 naming as defendants Phoenix House Springfield Gardens,
Phoenix Houses of New York, Inc., Phoenix House Family Foundation, Inc., and Phoenix House
Management Corporation and John Doe.
In brief, and solely for the purpose of this motion, the basic relevant facts, as alleged in the
Complaint, are as follows. In 2004, while the plaintiff was housed at a residential treatment facility
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at Phoenix House at Springfield Gardens Community Residence the plaintiff alleges that she was
subjected to unpermitted sexual conduct.
ARGUMENT
POINT I
Plaintiff’s Negligent Infliction of Emotional Distress Claim is Duplicative
Plaintiff’s negligent infliction of emotional distress claim is impermissibly duplicative of
her other tort claims, and to the extent not otherwise dismissed for the reasons discussed above, is
nevertheless subject to dismissal (see Wolkstein v. Morgenstern, 275 AD2d 635, 636-37 [1st Dept
2000] [citations omitted] [“Generally, a cause of action for infliction of emotional distress is not
allowed if essentially duplicative of tort or contract causes of action.”]; see, e.g., Demas v. Levitsky,
738 NY2d 402, 409 [3d Dep’t 2002] [citing Fisher v. Maloney, 43 NY2d 553, 558 [1978]; Vione
v. Tewell, 12 Misc 3d 973, 980 [Sup Ct, NY Cty 2006] [“When the complained of conduct is
embraced by a traditional tort which provides for emotional damages, the cause of action for
infliction of emotional distress should be dismissed”]).
In light of the foregoing, plaintiff’s Sixth Cause of Action should be dismissed in its
entirety as asserted against the Phoenix House defendants.
CONCLUSION
For the reasons set forth above and in the affirmation submitted with this motion, Phoenix
House Springfield Gardens, Phoenix Houses of New York, Inc., Phoenix House Family
Foundation, Inc., and Phoenix House Management Corporation respectfully request that its pre-
answer motion be granted as to the Sixth Cause of Action found in the Plaintiff’s Complaint,
together with any such other and further relief this Court deems just and proper.
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FILED: QUEENS COUNTY CLERK 11/16/2023 01:38 PM INDEX NO. 714190/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 11/16/2023
DATED: Buffalo, New York
November 16, 2023
LIPPES MATHIAS LLP
/s/Brian C. Mahoney___
Brian C. Mahoney, Esq.
Attorneys for Phoenix House Defendants
50 Fountain Plaza, Suite 1700
Buffalo, New York 14202
(716) 853-5100
bmahoney@lippes.com
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Preview
FILED: QUEENS COUNTY CLERK 11/16/2023 01:38 PM INDEX NO. 714190/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 11/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ___________________________________________ ROSELYN BONILLA, Plaintiff, Index No. 714190/2023 -against- PHOENIX HOUSE SPRINGFIELD GARDENS, PHOENIX HOUSES OF NEW YORK, INC., PHOENIX HOUSE FAMILY FOUNDATION, INC., PHOENIX HOUSE MANAGEMENT CORPORATION, and, JOHN DOE, Defendants. ___________________________________________ MEMORANDUM OF LAW IN SUPPORT OF PHOENIX HOUSE DEFENDANTS PRE-ANSWER MOTION FOR PARTIAL DISMISSAL OF PLAINTIFF’S COMPLAINT LIPPES MATHIAS LLP Brian C. Mahoney, Esq. Attorneys for Phoenix House Defendants 50 Fountain Plaza, Suite 1700 Buffalo, New York 14202 (716) 853-5100 1 of 4 FILED: QUEENS COUNTY CLERK 11/16/2023 01:38 PM INDEX NO. 714190/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 11/16/2023 PRELIMINARY STATEMENT Defendants Phoenix House Springfield Gardens, Phoenix Houses of New York, Inc., Phoenix House Family Foundation, Inc., and Phoenix House Management Corporation (collectively “Phoenix House”), submit this memorandum of law in support of its pre-answer motion pursuant to CPLR 3211(A)(7) for partial dismissal of plaintiff’s Complaint as against Phoenix House. Plaintiff commenced this action pursuant to the Adult Survivor’s Act alleging she was subject to unpermitted sexual conduct. The sexual conduct allegedly occurred in 2004 while the plaintiff was in a residential treatment facility. The plaintiff alleges that she was subjected to sexual conduct by John Doe, a counselor at the facility. The plaintiff has asserted three causes of action against Phoenix House: 1) Fourth cause of action alleging negligence, 2) Fifth cause of action alleging negligent hiring, retention and supervision, and 3) Sixth cause of action alleging negligent infliction of emotional distress. For the reasons set forth below, Phoenix House moves to dismiss the Sixth cause of action in plaintiff’s Complaint. RELEVANT FACTS Plaintiff commenced this action by filing a Summons and Complaint in Supreme Court, Queens County, on July 11, 2023 naming as defendants Phoenix House Springfield Gardens, Phoenix Houses of New York, Inc., Phoenix House Family Foundation, Inc., and Phoenix House Management Corporation and John Doe. In brief, and solely for the purpose of this motion, the basic relevant facts, as alleged in the Complaint, are as follows. In 2004, while the plaintiff was housed at a residential treatment facility 2 2 of 4 FILED: QUEENS COUNTY CLERK 11/16/2023 01:38 PM INDEX NO. 714190/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 11/16/2023 at Phoenix House at Springfield Gardens Community Residence the plaintiff alleges that she was subjected to unpermitted sexual conduct. ARGUMENT POINT I Plaintiff’s Negligent Infliction of Emotional Distress Claim is Duplicative Plaintiff’s negligent infliction of emotional distress claim is impermissibly duplicative of her other tort claims, and to the extent not otherwise dismissed for the reasons discussed above, is nevertheless subject to dismissal (see Wolkstein v. Morgenstern, 275 AD2d 635, 636-37 [1st Dept 2000] [citations omitted] [“Generally, a cause of action for infliction of emotional distress is not allowed if essentially duplicative of tort or contract causes of action.”]; see, e.g., Demas v. Levitsky, 738 NY2d 402, 409 [3d Dep’t 2002] [citing Fisher v. Maloney, 43 NY2d 553, 558 [1978]; Vione v. Tewell, 12 Misc 3d 973, 980 [Sup Ct, NY Cty 2006] [“When the complained of conduct is embraced by a traditional tort which provides for emotional damages, the cause of action for infliction of emotional distress should be dismissed”]). In light of the foregoing, plaintiff’s Sixth Cause of Action should be dismissed in its entirety as asserted against the Phoenix House defendants. CONCLUSION For the reasons set forth above and in the affirmation submitted with this motion, Phoenix House Springfield Gardens, Phoenix Houses of New York, Inc., Phoenix House Family Foundation, Inc., and Phoenix House Management Corporation respectfully request that its pre- answer motion be granted as to the Sixth Cause of Action found in the Plaintiff’s Complaint, together with any such other and further relief this Court deems just and proper. 3 3 of 4 FILED: QUEENS COUNTY CLERK 11/16/2023 01:38 PM INDEX NO. 714190/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 11/16/2023 DATED: Buffalo, New York November 16, 2023 LIPPES MATHIAS LLP /s/Brian C. Mahoney___ Brian C. Mahoney, Esq. Attorneys for Phoenix House Defendants 50 Fountain Plaza, Suite 1700 Buffalo, New York 14202 (716) 853-5100 bmahoney@lippes.com 4 4 of 4