Opinion
Index No.: 13508/10
04-16-2012
TABITHA YOUNG, Plaintiffs, v. DAVID BROWN, HINDSIGHT BIBLICAL COUNSELING, HINDSIGHT MINISTRIES, INC., AND TRINITY PRESBYTERIAN CHURCH, Defendants.
KAUFMAN BORGEEST & RYAN LLP Attorneys for Defendants David H. Brown, Hindsight Ministries, Inc. and Hindsight Ministries, Inc. d/b/a Hindsight Biblical Counseling BY: Dennis J. Dozis, Esq. SIMON LESSER PC Attorneys for Defendant Trinity Presbyterian Church BY: Renee Simon Lesser, Esq. CLARK, GAGLIARDI & MILLER P.C. Attorneys for Plaintiff The Inns of Court BY: Sarah J. Eagen, Esq/.
SHORT FORM ORDER
ADLER, J.
The following papers numbered 1 to 45 were read on defendants David H. Brown's ("Brown"), Hindsight Ministries, Inc.'s and Hindsight Ministries, Inc. d/b/a Hindsight Biblical Counseling's (collectively referred to as "Hindsight Ministries") motion to dismiss the amended complaint pursuant to CPLR §3211(a)(7) or, in the alternative, to dismiss the amended complaint pursuant to CPLR §3126 and defendant Trinity Presbyterian Church's ("Trinity") motion to dismiss the amended complaint pursuant to CPLR §3211(a)(7), and plaintiff's cross-motions to amend the complaint pursuant to CPLR §3025(b):
| PAPERS | NUMBERED |
| Notice of Motion; Affirmation of Dennis J. Dozis, Esq.; Exhibits | 1-9 |
| Notice of Cross-Motion; Affirmation of Sarah J. Eagen, Esq. In Opposition; Affidavit of Tabitha Young; Supplemental Affidavit of Tabitha Young; Exhibits | 10-21 |
| Reply Affirmation/Affirmation in Opposition to Cross Motion of Dennis J. Dozis, Esq. | 22 |
| Reply Affirmation of Sarah J. Eagen, Esq. to Defendants Brown and Hindsight Opposition to Cross-Motion | 23 |
| Notice of Motion; Affirmation of Renee Simon Lesser, Esq.; Exhibits | 24-31 |
| Notice of Cross-Motion; Affirmation of Sarah J, Eagen, Esq.; Affidavit of Tabitha Young; Supplemental Affidavit of Tabitha Young; Exhibits | 32-43 |
| Reply Affirmation/Affirmation in Opposition to Cross Motion of Renee Simon Lesser, Esq.; | 44 |
| Reply Affirmation of Sarah J. Eagen, Esq. To Defendant Trinity Church's Opposition to Cross-Motion | 45 |
On a pre-answer motion to dismiss pursuant CPLR §3211(a)(7), the allegations in the complaint should be accepted as true, and the motion should be granted only if the facts as alleged do not fit within any cognizable legal theory (Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). Initially, the Court notes that defendant Trinity's motion to dismiss the amended complaint is not procedurally barred by the single motion rule of CPLR §3211(e) since the second cause of action asserted in the amended complaint is not the same cause of action asserted in the original pleading (see B.S.L. One Owners Corp. v. Key Int. Mfg., Inc., 225 A.D.2d 643, 640 N.Y.S.2d 135; cf. Swift v. New York Med. Coll., 48 A.D.3d 671, 850 N.Y.S.2d 906).
Turning now to the merits of the respective motions to dismiss, notwithstanding the Decision and Order of this Court filed and entered on August 15, 2011, plaintiff has once again failed to identify the nature of the counseling involved and the standards applicable thereto in her amended complaint. "No doubt, these omissions are intended to avoid entanglement with First Amendment concerns" (Marmelstein v. Kehillat New Hempstead, 45 A.D.3d 33, 36, 841 N.Y.S.2d 493, affd 11 N.Y.3d 15, 862 N.Y.S.2d 311, 892 N.E.2d 375). Even assuming that plaintiff has "surmounted First Amendment barriers" (see Marmelstein v. Kehillat New Hempstead, 11 N.Y.3d at 21), while her cause of action against defendants Brown and Hindsight Ministries is denominated as one sounding in negligence, it is, in reality, "a cause of action for seduction which contemplates any conduct on the part of a man, without the use of force, in wrongfully inducing a woman to surrender to his sexual desires (Coopersmith v. Gold, 172 A.D.2d 982, 984, 568 N.Y.S.2d 250), which cause of action was abolished by Civil Rights Law §80-a.
Plaintiff attempts to avoid First Amendment entanglement problems by alleging that while defendant Brown has received both a Masters degree and certificate in biblical counseling, he was not providing counseling to plaintiff as a member of the clergy.
In the absence of any actionable conduct on the part of defendants Brown and Hindsight Ministries, plaintiff's claim of negligent supervision against Trinity must fall (Wende C. v. United Methodist Church, 6 A.D.3d 1047, 1053, 776 N.Y.S.2d 390, aff'd. 14 N.Y.3d 293, 299, 794 N.Y.S.2d 282, 827 N.E.2d 265, cert. denied 546 U.S. 818, 126 S.Ct. 346, 163 L.Ed.2d 57).
Accordingly, it is hereby
ORDERED, that defendants Brown's and Hindsight Ministries' motion to dismiss the complaint insofar as asserted against them is GRANTED; and it is further
ORDERED, that defendants Brown's and Hindsight Ministries' motion to dismiss the complaint pursuant to CPLR §3126 is DENIED as academic; and it is further
ORDERED, that defendant Trinity's motion to dismiss the complaint insofar as asserted against it is GRANTED; and it is further
ORDERED, that plaintiff's cross-motions to amend the complaint pursuant to CPLR §3025(b) are DENIED.
The foregoing constitutes the Order of the Court. Dated: White Plains, New York
April 16, 2012
________________
HON. LESTER B. ADLER
SUPREME COURT JUSTICE
KAUFMAN BORGEEST & RYAN LLP
Attorneys for Defendants David H. Brown,
Hindsight Ministries, Inc. and Hindsight
Ministries, Inc. d/b/a Hindsight Biblical Counseling
BY: Dennis J. Dozis, Esq.
SIMON LESSER PC
Attorneys for Defendant Trinity Presbyterian Church
BY: Renee Simon Lesser, Esq.
CLARK, GAGLIARDI & MILLER P.C.
Attorneys for Plaintiff
The Inns of Court
BY: Sarah J. Eagen, Esq/.