| Santo B. v Roman Catholic Archdiocese of N.Y. |
| 2008 NY Slip Op 04821 [51 AD3d 956] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Santo B., Appellant, v Roman Catholic Archdiocese ofNew York et al., Respondents, et al., Defendant. |
—[*1] Wilson, Elser, Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Glen S. Feinbergand Richard E. Lerner of counsel), for respondents.
In an action, inter alia, to recover damages for sexual abuse, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.),entered September 15, 2006, as granted that branch of the motion of the defendants RomanCatholic Archdiocese of New York and Edward Egan which was pursuant to CPLR 3211 (a) (5)to dismiss the complaint insofar as asserted against them as time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
In his verified complaint dated October 27, 2005, the plaintiff alleged that from 1990 to1993, when he was an altar boy at the Holy Family Church in New Rochelle, he was sexuallyabused by the defendant William White, who was then a monsignor employed by the defendantRoman Catholic Archdiocese of New York (hereinafter the Archdiocese). The defendantsArchdiocese and Edward Egan filed a pre-answer motion, inter alia, to dismiss the complaint onthe ground that it was time-barred, and the Supreme Court granted that branch of the defendants'motion.
The respondents had the initial burden of demonstrating, prima facie, that the time withinwhich to commence the action had expired (see Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405[2007]; LaRocca v DeRicco, 39AD3d 486, 486-487 [2007]). Taking the allegations in the complaint as true (see AAA Viza, Inc. v Business PaymentSys., LLC, 38 AD3d 802, 803 [2007]), and tolling the applicable three-year statute oflimitations for the disability of infancy (see CPLR 105 [j]; 208, 214 [5]), the plaintiff wasrequired to commence this action no later than three years after his 18th birthday, or October 16,2001. The respondents thus satisfied their prima facie showing, and the burden shifted to theplaintiff "to aver evidentiary facts establishing that his . . . cause of action falls[*2]within an exception to the statute of limitations, or raising anissue of fact as to whether such an exception applies" (Texeria v BAB Nuclear Radiology,P.C., 43 AD3d at 405). The plaintiff failed to meet this burden.
Contrary to the plaintiff's contentions, the doctrine of equitable estoppel did not preclude thedefendants from asserting the statute of limitations defense. The plaintiff alleged generally thatthe defendants had engaged in the practice of concealing the problem of sexual abuse of childrenby parish clergy, including White. Such allegations are insufficient to invoke equitable estoppel,which requires a showing that a defendant, subsequent to the occurrences which gave rise to theplaintiff's cause of action, engaged in affirmative wrongdoing, fraud, deception ormisrepresentations which induced the plaintiff to refrain from filing a timely action (see Zumpano v Quinn, 6 NY3d666, 673-675 [2006]). The plaintiff did not satisfy this burden with his allegation that,sometime in 2001, he informed a representative of the Archdiocese of his abuse claim, therepresentative denied him information regarding White's location, and after this meeting, he"reasonably relied" upon the Archdiocese to "promptly investigate [his] claim and make [him]whole." The plaintiff did not aver specific promises or statements made by the respondents'representative which led the plaintiff to believe that the Archdiocese was investigating his claim,nor did the plaintiff do anything further after this single meeting until four years later, when in2005, he filed the instant lawsuit. Under the circumstances, the plaintiff failed to establishreasonable reliance upon misrepresentations or conduct of the respondents which prevented himfrom timely filing (id. at 674).
Moreover, the plaintiff failed to establish that the statute of limitations was tolled for hisalleged disability of insanity. Pursuant to CPLR 208, tolling on this ground may not extend thelimitations period "beyond ten years after the cause of action accrues." The plaintiff was thusprecluded from commencing this action more than 10 years after the last instance of abuse in1993 (see Steo v Cucuzza, 213 AD2d 624 [1995]). In any event, the plaintiff failed toaver sufficient evidentiary facts to support a finding of his insanity which, for the purposes ofCPLR 208, requires a showing that he was unable to protect his legal rights because of an overallinability to function in society (see McCarthy v Volkswagen of Am., 55 NY2d 543, 548[1982]).
Accordingly, the Supreme Court properly granted that branch of the respondents' motionwhich was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted againstthem as time-barred.
The plaintiff's remaining contentions are without merit. Skelos, J.P., Ritter, Florio andDickerson, JJ., concur.