Preview
INDEX NO. 151844/2022
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/30/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ALEXANDER M. TISCH PART 18
Justice
Xx INDEX NO. _151844/2022
E.H.,
05/11/2022,
Plaintiff, MOTION DATE 06/30/2022
-V- MOTION SEQ. NO. 002 003
BLOOMINGDALE SCHOOL OF MUSIC, INC., THOMAS
PIERCY DECISION + ORDER ON
MOTION
Defendant.
———— ——-X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 12, 13, 14, 15, 21,
22
were read on this motion to/for DISMISSAL
The following e-filed documents, listed by NYSCEF document number (Motion 003) 16, 17, 18, 19, 20,
23, 24, 25
were read on this motion to/for DISMISS
Upon the foregoing documents, defendant Thomas Piercy (“Piercy”) moves for dismissal
of this action in its entirety pursuant to CPLR 3211(a)(5) and defendant Bloomingdale School of
Music, Inc. (“Bloomingdale”) moves for dismissal of this action in its entirety pursuant to CPLR
3211(a)(5) and (a)(7).
Plaintiff commenced this action on February 24, 2022, alleging that while a student in
Bloomingdale’s afterschool music program in 1994, he was abused by Piercy, an employee of
Bloomingdale. Defendants Piercy and Bloomingdale now separately move for dismissal,
arguing that plaintiffs claims are time-barred as plaintiff brought this action after the August 14,
2021 closing of the statutory window for filing Child Victims Act (“CVA”) claims.
Additionally, defendant Bloomingdale argues the claim revival provision of the CVA is
unconstitutional, that plaintiff's negligence-based claims all fail to state a cause of action, that
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INDEX NO. 151844/2022
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/30/2024
the cause of action for a breach of statutory duty to report abuse does not allege any facts
explaining who at Bloomingdale was a mandated reporter, and that plaintiff is not entitled to
assert punitive damages against Bloomingdale.
Where a defendant seeks dismissal under CPLR § 3211(a)(5) on the ground that the
statute of limitations bars a claim, the defendant need only “establish, prima facie, that the time
within which to sue has expired” (Flintlock Construction Services, LLC v Rubin, Fiorella &
Friedman, LLP, 188 AD3d 530, 531 [1st Dept. 2020] [internal quotation marks and citation
omitted]). Once a defendant has made that showing, the “burden shifts to the plaintiff to raise a
question of fact as to whether the statute of limitations has been tolled, an exception to the
limitations period is applicable, or the plaintiff actually commenced the action within the
applicable limitations period” (id.).
Defendants meet their prima facie burden here, as plaintiff commenced the action in
February of 2022 and the CVA’s statutory window for filing claims closed in August of 2021.
Plaintiff disagrees, and argues that then-Governor Cuomo issued multiple executive orders which
tolled the statute of limitations for CVA actions. Specifically, plaintiff argues that Governor
Cuomo’s March 20, 2020 executive order, providing that “any specific time limit for the
commencement, filing, or service of any legal action, [...], is hereby tolled from the date of this
executive order until April 19, 2020...,” and the extensions that followed, ultimately extended
the toll for 228 days and thereby extended the time in which to file CVA complaints to March
30, 2022 (see NYSCEF Doc. No. 22, p. 4-6; see aiso Executive Order [A. Cuomo] 202.8 [9
NYCRR 8.202.8]). As plaintiff commenced the action on February 24, 2022, plaintiff argues his
action was timely and the defendants’ motions to dismiss the complaint as time-barred should be
denied.
151844/2022 H., E. vs. BLOOMINGDALE SCHOOL OF MUSIC, INC. ET AL
Motion No. 002 003
Page 2 of 3
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INDEX NO. 151844/2022
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/30/2024
“[T]he executive orders issued subsequent to the CVA’s amendment tolled the close of
the CVA’s revival window for 90 days, from August 14, 2021, until at least November 12, 2021”
(Bethea v Children’s Vill., 225 AD3d 580 [2nd Dept. 2024] citing MC. v State, 74 Misc. 3d 682,
703 {NY Ct Cl 2022]). The instant action was commenced on February 24, 2022, and was
therefore untimely.
Accordingly, it is hereby ORDERED that the motions to dismiss the complaint as time-
barred are both granted, and the complaint is dismissed in its entirety as against both defendants,
with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk
is directed to enter judgment accordingly in favor of said defendants.
This constitutes the decision and order of the Court.
|
412612024
DATE ALEXANDER M. TISCH, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED C] DENIED GRANTED IN PART Cl OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOINTMENT C REFERENCE
151844/2022 _H., E. vs. BLOOMINGDALE SCHOOL OF MUSIC, INC. ET AL
Page 3 of 3
Motion No. 002 003
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INDEX NO. 151844/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/30/2024 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ALEXANDER M. TISCH PART 18 Justice Xx INDEX NO. _151844/2022 E.H., 05/11/2022, Plaintiff, MOTION DATE 06/30/2022 -V- MOTION SEQ. NO. 002 003 BLOOMINGDALE SCHOOL OF MUSIC, INC., THOMAS PIERCY DECISION + ORDER ON MOTION Defendant. ———— ——-X The following e-filed documents, listed by NYSCEF document number (Motion 002) 12, 13, 14, 15, 21, 22 were read on this motion to/for DISMISSAL The following e-filed documents, listed by NYSCEF document number (Motion 003) 16, 17, 18, 19, 20, 23, 24, 25 were read on this motion to/for DISMISS Upon the foregoing documents, defendant Thomas Piercy (“Piercy”) moves for dismissal of this action in its entirety pursuant to CPLR 3211(a)(5) and defendant Bloomingdale School of Music, Inc. (“Bloomingdale”) moves for dismissal of this action in its entirety pursuant to CPLR 3211(a)(5) and (a)(7). Plaintiff commenced this action on February 24, 2022, alleging that while a student in Bloomingdale’s afterschool music program in 1994, he was abused by Piercy, an employee of Bloomingdale. Defendants Piercy and Bloomingdale now separately move for dismissal, arguing that plaintiffs claims are time-barred as plaintiff brought this action after the August 14, 2021 closing of the statutory window for filing Child Victims Act (“CVA”) claims. Additionally, defendant Bloomingdale argues the claim revival provision of the CVA is unconstitutional, that plaintiff's negligence-based claims all fail to state a cause of action, that 151844/2022 H., E. vs. BLOOMINGDALE SCHOOL OF MUSIC, INC. ET AL Page 1 of 3 Motion No. 002 003 1 of 3 INDEX NO. 151844/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/30/2024 the cause of action for a breach of statutory duty to report abuse does not allege any facts explaining who at Bloomingdale was a mandated reporter, and that plaintiff is not entitled to assert punitive damages against Bloomingdale. Where a defendant seeks dismissal under CPLR § 3211(a)(5) on the ground that the statute of limitations bars a claim, the defendant need only “establish, prima facie, that the time within which to sue has expired” (Flintlock Construction Services, LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531 [1st Dept. 2020] [internal quotation marks and citation omitted]). Once a defendant has made that showing, the “burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (id.). Defendants meet their prima facie burden here, as plaintiff commenced the action in February of 2022 and the CVA’s statutory window for filing claims closed in August of 2021. Plaintiff disagrees, and argues that then-Governor Cuomo issued multiple executive orders which tolled the statute of limitations for CVA actions. Specifically, plaintiff argues that Governor Cuomo’s March 20, 2020 executive order, providing that “any specific time limit for the commencement, filing, or service of any legal action, [...], is hereby tolled from the date of this executive order until April 19, 2020...,” and the extensions that followed, ultimately extended the toll for 228 days and thereby extended the time in which to file CVA complaints to March 30, 2022 (see NYSCEF Doc. No. 22, p. 4-6; see aiso Executive Order [A. Cuomo] 202.8 [9 NYCRR 8.202.8]). As plaintiff commenced the action on February 24, 2022, plaintiff argues his action was timely and the defendants’ motions to dismiss the complaint as time-barred should be denied. 151844/2022 H., E. vs. BLOOMINGDALE SCHOOL OF MUSIC, INC. ET AL Motion No. 002 003 Page 2 of 3 2 of 3 INDEX NO. 151844/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/30/2024 “[T]he executive orders issued subsequent to the CVA’s amendment tolled the close of the CVA’s revival window for 90 days, from August 14, 2021, until at least November 12, 2021” (Bethea v Children’s Vill., 225 AD3d 580 [2nd Dept. 2024] citing MC. v State, 74 Misc. 3d 682, 703 {NY Ct Cl 2022]). The instant action was commenced on February 24, 2022, and was therefore untimely. Accordingly, it is hereby ORDERED that the motions to dismiss the complaint as time- barred are both granted, and the complaint is dismissed in its entirety as against both defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants. This constitutes the decision and order of the Court. | 412612024 DATE ALEXANDER M. TISCH, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED C] DENIED GRANTED IN PART Cl OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOINTMENT C REFERENCE 151844/2022 _H., E. vs. BLOOMINGDALE SCHOOL OF MUSIC, INC. ET AL Page 3 of 3 Motion No. 002 003 3 of 3