Preview
FILED: NEW YORK COUNTY CLERK 12/15/2022 06:42 PM INDEX NO. 950276/2020
NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 12/15/2022
EXHIBIT I
FILED: NEW YORK COUNTY CLERK 12/15/2022
10/18/2022 06:42
04:50 PM INDEX NO. 950276/2020
161123/2021
NYSCEF DOC. NO. 82
53 RECEIVED NYSCEF: 12/15/2022
10/18/2022
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M
Justice
---------------------------------------------------------------------------------x INDEX NO. 161123/2021
DULCE DOMINGUEZ,
MOTION DATE 05/13/2022
Plaintiff,
MOTION SEQ. NO. 001
-v-
ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK,
AUGUSTINIAN ORDER OF THE AUGUSTINIAN
RECOLLECTS A/KIA AND D/B/A AUGUSTINIAN ORDER DECISION + ORDER ON
OF THE AUGUSTINIAN RECOLLECTS PROVINCE OF ST. MOTION
AUGUSTINE, TAGASTE MONASTERY
Defendant.
----------------------.:.----------------------------------------------------------x
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15,
16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29, 30, 31,32, 33,34,35, 36,37, 38,44,45,48,49, 50,
51
were read on this motion to/for DISMISSAL
i
Upon the foregoing documents, Defendant Roman Catholic Archdiocese of New York's
(the "Archdiocese") motion to dismiss Plaintiff Dulce Dominguez's ("Plaintiff') Complaint
pursuant to CPLR §321 l(a)(l) and (a)(7) is granted.
This action arises out of alleged sexual abuse suffe~ed by Plaintiff at the hands of Fidel
Hernandez ("Reverend Hernandez") from 2018 through 2019 (NYSCEF Doc. 2 at if 23). The abuse
allegedly took place at Defendant Tagaste Monastery ("Tagaste"), which is in Suffern, Rockland
County, New York (id.) It is alleged that Reverend Hernan~ez was employed by Defendants the
Archdiocese, the Augustinian Order of the Augustinian Recollects ("the Augustinian Order"),
and/or Tagaste (collectively "Defendants") (id. at if 14). It is further alleged that the Augustinian
'
Order knew of Reverend Hernandez's alleged proclivities to' commit sexual abuse as early as 2015
(id. at if 16).
'i
161123/2021 DOMINGUEZ, DULCE vs. ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK ET Page 1of4
AL
Motion No. 001
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53 RECEIVED NYSCEF: 12/15/2022
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Plaintiff filed her Complaint on December 13, 2021 (id.). Both Tagaste and the Augustinian
Order have filed Answers to Plaintiff's Complaint (NYSCEF Docs. 10 and 46). The Archdiocese
has filed the instant motion dismiss, claiming the documentary evidence .establishes the
Archdiocese exercises no control over the Augustinian OrdJr or Tagaste and therefore should be
dismissed (NYSCEF Doc. 11 ).
A motion to dismiss based on documentary evidence pursuant to CPLR § 321 l(a)(l) is
appropriately granted only when the documentary evidence utterly refutes the plaintiffs factual
allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual Life Ins. Co.
of New York, 98 NY2d 314 [2002]). The documentary evidence must be unambiguous, of
undisputed authenticity, and its contents mus.t be essentially ~ndeniable (VXI Lux Holdco S.A.R.L.
v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]). A court may not dismiss a complaint
based on documentary evidence unless the factual allegations are definitively contradicted by the
evidence (Leon v Martinez, 84 NY2d 83, 88 [1994]).
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must
give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings
and determine only whether the alleged facts fit within any c~gnizable legal theory (Sassi v Mobile
Life Support Services, Inc., 37 NY3d 236, 239 [2021]). All factual allegations must be accepted as
true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept 2004]).
Conclusory allegations or claims consisting of bare legal conclusions with no factual specificity
are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 NY3d 358, 373 [2009]; Barnes
v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014]). A motion to dismiss for failure to state a claim
~
will be granted if the factual allegations do not allow for an enforceable right of recovery
(Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 13 7; 142 [2017]).
16112312021 DOMINGUEZ, DULCE vs. ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK ET Page 2 of 4
AL
Motion No. 001
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NYSCEF DOC. NO. 82
53 RECEIVED NYSCEF: 12/15/2022
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i'j
The Archdiocese asserts that as early as 1952, the A; gustinian Order owned and operated
~
Tagaste Monastery exclusively (NYSCEF Doc. 12 at 'if 13). flndeed,the Articles of Incorporation
~ .
for the Augustinian Order, the deeds to Tagaste Monastery, And
'I
the Statement and Designation of
. .
'~
the Augustinian Fathers of Nebraska, which the Archdiocese pas submitted in support of its motion
~
to dismiss, all establish ·that the Archdiocese did not own,! operate, manage or control Tagaste
~
Monastery (NYSCEF Docs. 16-20). This information is fulther corroborated by the affidavit of
"
~
Roderick Cassidy, General Counsel for the Archdiocese, wpo has testified that the Archdiocese
; ~ .
~
does not hire, train, supervise or control any of the staff br volunteers at Tagaste Monastery,
! .
'
including Reverend Hernandez (NYSCEF Doc. 21 ). The Arcpdiocese has also provided a plethora
~
g
of precedent in analogous cases where the Archdiocese is dismissed based on documentary
. !
evidence showing the Archdiocese did not have any control!:i over the premises or individual who
. consider her arguments as to why the Archdiocese should
. . .. dot
i be dismissed (NYSCEF Doc. 48).
Plaintiff does not provide any information that contradicts tlie documentary evidence set forth by
. ~
the Archdiocese. Rather, Plaintiff asserts that since no iaiscovery has yet taken place, the
ii
Archdiocese should not be dismissed since Plaintiff is not ~rivy to the ecclesiastical relationship
l
~
between the Augustinian Order and the Archdiocese (id.). l!Iowever, Plaintiffs "unsubstantiated
~
hope that discovery will help salvage her claims" is not ehough to defeat a motion to dismiss
'
supported by documentary evidence establishing that the Arbhdiocese and the Augustinian Order
. ~
are distinct legal entities (Freeman v Brecher, 155 AD3d !4s3, 454 [1st Dept 2017]). Notably,
~
Defendants Augustinian Order and Tagaste, who presumabJy .would have evidence sufficient to
defeat the Archdiocese's motion, did not proffer any opposi{ion . .
·'
I"
161123/2021 DOMINGUEZ, DULCE vs. ROMAN CATHOLIC ARCHDIOCESE, OF NEW YORK ET Page 3 of 4
AL
Motion No. 001
3 of 4
FILED: NEW YORK COUNTY CLERK 12/15/2022
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NYSCEF DOC. NO. 82
53 RECEIVED NYSCEF: 12/15/2022
10/18/2022
As such, because the documentary evidence establishes that the Augustinian Order is an
autonomous religious order that the Archdiocese exercises! no control or supervision over, and
Tagaste Monastery, where the abuse allegedly took place, was under the complete control of the
Augustinian Order, the documentary evidence warrants dismissing the Archdiocese from this
action. However, this dismissal is without prejudice, as if during discovery facts appear which link
the Augustinian Order or Reverend Hernandez to the Archdiocese, then it is possible the
Archdiocese may be restored as a party to this action.
Accordingly, it is hereby,
ORDERED that Defendant Roman Catholic Archdiocese of New York is dismissed from
this action without prejudice; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly; and it is
further
ORDERED that within· 30 days of entry, counsel for Defendant Roman Catholic
Archdiocese of New York shall serve a copy of this decision and order upon all parties to this
action, with notice of entry.
This constitutes the decision and order of the Court.
10/18/2022
DATE HOt-J. MARY V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
x GRANTED D DENIED GRANTED IN PART D OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D REFERENCE
161123/2021 DOMINGUEZ, DULCE vs. ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK ET Page 4 of 4
AL
Motion No. 001
4 of 4
Preview
FILED: NEW YORK COUNTY CLERK 12/15/2022 06:42 PM INDEX NO. 950276/2020 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 12/15/2022 EXHIBIT I FILED: NEW YORK COUNTY CLERK 12/15/2022 10/18/2022 06:42 04:50 PM INDEX NO. 950276/2020 161123/2021 NYSCEF DOC. NO. 82 53 RECEIVED NYSCEF: 12/15/2022 10/18/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------------------------------------------------------------------x INDEX NO. 161123/2021 DULCE DOMINGUEZ, MOTION DATE 05/13/2022 Plaintiff, MOTION SEQ. NO. 001 -v- ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK, AUGUSTINIAN ORDER OF THE AUGUSTINIAN RECOLLECTS A/KIA AND D/B/A AUGUSTINIAN ORDER DECISION + ORDER ON OF THE AUGUSTINIAN RECOLLECTS PROVINCE OF ST. MOTION AUGUSTINE, TAGASTE MONASTERY Defendant. ----------------------.:.----------------------------------------------------------x The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29, 30, 31,32, 33,34,35, 36,37, 38,44,45,48,49, 50, 51 were read on this motion to/for DISMISSAL i Upon the foregoing documents, Defendant Roman Catholic Archdiocese of New York's (the "Archdiocese") motion to dismiss Plaintiff Dulce Dominguez's ("Plaintiff') Complaint pursuant to CPLR §321 l(a)(l) and (a)(7) is granted. This action arises out of alleged sexual abuse suffe~ed by Plaintiff at the hands of Fidel Hernandez ("Reverend Hernandez") from 2018 through 2019 (NYSCEF Doc. 2 at if 23). The abuse allegedly took place at Defendant Tagaste Monastery ("Tagaste"), which is in Suffern, Rockland County, New York (id.) It is alleged that Reverend Hernan~ez was employed by Defendants the Archdiocese, the Augustinian Order of the Augustinian Recollects ("the Augustinian Order"), and/or Tagaste (collectively "Defendants") (id. at if 14). It is further alleged that the Augustinian ' Order knew of Reverend Hernandez's alleged proclivities to' commit sexual abuse as early as 2015 (id. at if 16). 'i 161123/2021 DOMINGUEZ, DULCE vs. ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK ET Page 1of4 AL Motion No. 001 1 of 4 FILED: NEW YORK COUNTY CLERK 12/15/2022 10/18/2022 06:42 04:50 PM INDEX NO. 950276/2020 161123/2021 NYSCEF DOC. NO. 82 53 RECEIVED NYSCEF: 12/15/2022 10/18/2022 Plaintiff filed her Complaint on December 13, 2021 (id.). Both Tagaste and the Augustinian Order have filed Answers to Plaintiff's Complaint (NYSCEF Docs. 10 and 46). The Archdiocese has filed the instant motion dismiss, claiming the documentary evidence .establishes the Archdiocese exercises no control over the Augustinian OrdJr or Tagaste and therefore should be dismissed (NYSCEF Doc. 11 ). A motion to dismiss based on documentary evidence pursuant to CPLR § 321 l(a)(l) is appropriately granted only when the documentary evidence utterly refutes the plaintiffs factual allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]). The documentary evidence must be unambiguous, of undisputed authenticity, and its contents mus.t be essentially ~ndeniable (VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]). A court may not dismiss a complaint based on documentary evidence unless the factual allegations are definitively contradicted by the evidence (Leon v Martinez, 84 NY2d 83, 88 [1994]). When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings and determine only whether the alleged facts fit within any c~gnizable legal theory (Sassi v Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). All factual allegations must be accepted as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept 2004]). Conclusory allegations or claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 NY3d 358, 373 [2009]; Barnes v Hodge, 118 AD3d 633, 633-634 [1st Dept 2014]). A motion to dismiss for failure to state a claim ~ will be granted if the factual allegations do not allow for an enforceable right of recovery (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 13 7; 142 [2017]). 16112312021 DOMINGUEZ, DULCE vs. ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK ET Page 2 of 4 AL Motion No. 001 2 of 4 FILED: NEW YORK COUNTY CLERK 12/15/2022 10/18/2022 06:42 04:50 PM INDEX NO. 950276/2020 161123/2021 NYSCEF DOC. NO. 82 53 RECEIVED NYSCEF: 12/15/2022 10/18/2022 i'j The Archdiocese asserts that as early as 1952, the A; gustinian Order owned and operated ~ Tagaste Monastery exclusively (NYSCEF Doc. 12 at 'if 13). flndeed,the Articles of Incorporation ~ . for the Augustinian Order, the deeds to Tagaste Monastery, And 'I the Statement and Designation of . . '~ the Augustinian Fathers of Nebraska, which the Archdiocese pas submitted in support of its motion ~ to dismiss, all establish ·that the Archdiocese did not own,! operate, manage or control Tagaste ~ Monastery (NYSCEF Docs. 16-20). This information is fulther corroborated by the affidavit of " ~ Roderick Cassidy, General Counsel for the Archdiocese, wpo has testified that the Archdiocese ; ~ . ~ does not hire, train, supervise or control any of the staff br volunteers at Tagaste Monastery, ! . ' including Reverend Hernandez (NYSCEF Doc. 21 ). The Arcpdiocese has also provided a plethora ~ g of precedent in analogous cases where the Archdiocese is dismissed based on documentary . ! evidence showing the Archdiocese did not have any control!:i over the premises or individual who . consider her arguments as to why the Archdiocese should . . .. dot i be dismissed (NYSCEF Doc. 48). Plaintiff does not provide any information that contradicts tlie documentary evidence set forth by . ~ the Archdiocese. Rather, Plaintiff asserts that since no iaiscovery has yet taken place, the ii Archdiocese should not be dismissed since Plaintiff is not ~rivy to the ecclesiastical relationship l ~ between the Augustinian Order and the Archdiocese (id.). l!Iowever, Plaintiffs "unsubstantiated ~ hope that discovery will help salvage her claims" is not ehough to defeat a motion to dismiss ' supported by documentary evidence establishing that the Arbhdiocese and the Augustinian Order . ~ are distinct legal entities (Freeman v Brecher, 155 AD3d !4s3, 454 [1st Dept 2017]). Notably, ~ Defendants Augustinian Order and Tagaste, who presumabJy .would have evidence sufficient to defeat the Archdiocese's motion, did not proffer any opposi{ion . . ·' I" 161123/2021 DOMINGUEZ, DULCE vs. ROMAN CATHOLIC ARCHDIOCESE, OF NEW YORK ET Page 3 of 4 AL Motion No. 001 3 of 4 FILED: NEW YORK COUNTY CLERK 12/15/2022 10/18/2022 06:42 04:50 PM INDEX NO. 950276/2020 161123/2021 NYSCEF DOC. NO. 82 53 RECEIVED NYSCEF: 12/15/2022 10/18/2022 As such, because the documentary evidence establishes that the Augustinian Order is an autonomous religious order that the Archdiocese exercises! no control or supervision over, and Tagaste Monastery, where the abuse allegedly took place, was under the complete control of the Augustinian Order, the documentary evidence warrants dismissing the Archdiocese from this action. However, this dismissal is without prejudice, as if during discovery facts appear which link the Augustinian Order or Reverend Hernandez to the Archdiocese, then it is possible the Archdiocese may be restored as a party to this action. Accordingly, it is hereby, ORDERED that Defendant Roman Catholic Archdiocese of New York is dismissed from this action without prejudice; and it is further ORDERED that the Clerk of the Court is directed to enter judgment accordingly; and it is further ORDERED that within· 30 days of entry, counsel for Defendant Roman Catholic Archdiocese of New York shall serve a copy of this decision and order upon all parties to this action, with notice of entry. This constitutes the decision and order of the Court. 10/18/2022 DATE HOt-J. MARY V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION x GRANTED D DENIED GRANTED IN PART D OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D REFERENCE 161123/2021 DOMINGUEZ, DULCE vs. ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK ET Page 4 of 4 AL Motion No. 001 4 of 4