Opinion
Index No. 520805/2021
03-07-2024
JANE DOE, whose initials are A.A., Plaintiff, v. SAINT ANN'S SCHOOL, its agents, servants, employees, TONY MELONI, Defendants.
Unpublished Opinion
DECISION AND ORDER
Hon. Joy F. Campanelli, J.S.C.
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ seq.#2 seq.#3
Petition/Cross Motion and Affidavits (Affirmations) Annexed 30-33 35-40
Opposing Affidavits (Affirmations) 35-40 42
Affidavits/ Affirmations in Reply _
Other Papers: Affidavits/Affirmations in Support_
Defendant SAINT ANN'S SCHOOL moves by Notice of Motion seq. 002 to dismiss with prejudice the causes of action asserted against it by plaintiff JANE DOE pursuant to CPLR §3211 (a)(7). Plaintiff cross moves by Notice of Cross-Motion seq. 003 pursuant to CPLR §3205(b) for leave to file an amended complaint in this matter.
Before reaching the substance of defendants' arguments in their motions to dismiss, the Court must first address plaintiff's application for leave to amend the complaint. A party may amend a pleading without leave or with leave of court (see CPLR §3025 [a], [b]). CPLR §3025 (a), in relevant part, permits amendment of a pleading as of right "at any time before the period for responding to it expires." A motion "to dismiss the original complaint extend[s] the defendants' time to answer. . ., and similarly extend[s] the time within which the plaintiffs could serve an amended complaint as of right" (Re-Poly kfg. Corp, v Dragonides, 109 A.D.3d 532, 534-535 [2d Dept 2013]; see also Johnson v Spence, 286 A.D.2d 481, 483 [2d Dept 20011 [stating same]). The plaintiff here may amend the complaint as of right and did not need to seek leave of court to do so. (see Re-Poly kfg. Corp., 109 A.D.3d at 534-535; see also Roam Capital, Inc. v Asia Alternatives Mgt. LLC, 194 A.D.3d 585, 585 [1st Dept 2021]).
Accordingly, plaintiff's amended complaint submitted with the cross-motion supersedes the original complaint (see R &G Brenner Income Tax Consultants v. Gilmartin, 166 A.D.3d 685, 688 [2d Dept 2018]) and is deemed to be the operative pleading (see NYSCEF doc no 40). In the amended complaint, plaintiff asserts the following causes of action against defendants SAINT ANN'S SCHOOL: (i) negligent failure to protect (ii) negligent training; (iii) negligent supervision; (iv) negligent retention.
The court must next consider the impact of the amended complaint on defendants' motion to dismiss. An amended complaint does not defeat a motion to dismiss that is addressed to the merits of the complaint, (see Hutchins v. Palmer, 176 A.D.3d 1037, 1039 [2d Dept 2019); see also Livadiotakis v. Tzitzikalakis, 302 A.D.2d 369,370 [2d Dept 2003]; Teruano v. Fine, 17 A.D.3d 449, 449 [2d Dept 2005]). When a plaintiff amends a complaint as of right, while a motion to dismiss is pending, the defendants can either withdraw their motion or apply their motion to dismiss to the amended complaint. Here, defendants have not indicated their intention to withdraw their pending motions to dismiss. Defendants oppose plaintiff's cross-motion to amend the complaint and argue that their motion to dismiss the original complaint should be granted as the plaintiff did not defend that complaint. As such, the original complaint is dismissed. As the defendants include arguments that address the amended complaint, and the parties stipulated to extend defendants' time to respond to plaintiff's cross-motion, the court will apply defendants' motion to the amended complaint (amended complaint).
On a motion to dismiss a complaint pursuant to CPLR §3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v. Mortinez, 84 N.Y.2d 83, 87-88 [994]). "Whether the complaint will be able to survive a motion for summary judgment, or whether plaintiff will be able to prove the claims, is not the inquiry on a motion to dismiss pursuant to CPLR § 3211 (a) (7) (see Victory State Bank v. EMBA Hylan, LLC, 169 A.D.3d 963,965 [2d Dept 2019]).
However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not" presumed to be true or accorded every favorable inference (David v. Hack, 97 A.D.3d 437 [1st Dept 2012]; Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 [1st Dept 1999], affd 94 N.Y.2d 659 [2000]; Kliebert v. McKoan, 228 A.D.2d 232 [ 1st Dept 1996], Iv denied 89 N.Y.2d 802 [ 1996], and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977]; see also Leon, supra, 84 N.Y.2d at 88; Ark Bryant Park Corp, v Bryant Park Restoration Corp., 285 A.D.2d 143, 150 [1st Dept 2001] ["In deciding such a pre-answer motion, the court is not authorized to assess the relative merits of the complaint's allegations against the defendant's contrary assertions or to determine whether or not plaintiff has produced evidence to support his claims" (Salles v. Chase Manhattan Bank, 300 A.D.2d 266 [1st Dept 20020.
In the Second Department, leave to amend will not be granted if the proposed amended pleading is "palpably insufficient to state a cause of action or defense, or is patently devoid of merit." Siddiqui v. Smith, 207 A.D.3d 681, 683 (2d Dep't 2022) (internal quotation marks omitted) (affirming denial of leave to amend). Courts applying this standard when confronted with a crossmotion for leave to amend in response to a motion to dismiss will generally inquire as to whether the newly added allegations cure the deficiencies in the original complaint addressed by the pending motion to dismiss. See, e.g., Williams v. REDF Equities, LLC, 101 N.Y.S.3d 701 (Table), at *4-5 (Sup. Ct. Kings Cnty. 2018).
In the instant matter, the alleged sexual abuse/assault occurred after school hours at defendant TONY MELONTs ("MELONI") apartment. The only allegation in the amended complaint of Defendant SAINT ANN'S SCHOOL'S negligence is MELONI's offering to give the plaintiff a ride home during dismissal while still on school premises. Although the location of an assault is not dispositive in this case there is no nexus to hold the SAINT ANN'S SCHOOL liable. (see Roe v. Domestic &Foreign Missionary Society cf Protestant Episcopal Church, 198 AD 3rd699 [2d Dept 2021], Accordingly, it is hereby
ORDERED that Defendant SAINT ANN'S SCHOOL'S motion seq. 002 to dismiss Plaintiff's amended complaint pursuant to CPLR §3211 (a)(7) is GRANTED.
ORDERED that Plaintiff's motion seq. 003 to amend the complaint is DENIED as moot.
This constitutes the decision and order of the Court.