| Young v Brown |
| 2014 NY Slip Op 00347 [113 AD3d 761] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Tabitha Young, Appellant, v David H. Brown etal., Respondents. |
—[*1] Kaufman Borgeest & Ryan LLP, New York, N.Y. (Jacqueline Mandell and Dennis J.Dozis of counsel), for respondents David H. Brown, Hindsight Biblical Counseling, andHindsight Ministries, Inc. Simon Lesser P.C., New York, N.Y. (Leonard F. Lesser of counsel), for respondentTrinity Presbyterian Church.
In an action, inter alia, to recover damages for negligence, the plaintiff appeals fromso much of an order of the Supreme Court, Westchester County (Adler, J.), entered April17, 2012, as granted that branch of the motion of the defendants David H. Brown,Hindsight Biblical Counseling, and Hindsight Ministries, Inc., which was pursuant toCPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against them,granted the motion of the defendant Trinity Presbyterian Church pursuant to CPLR 3211(a) (7) to dismiss the amended complaint insofar as asserted against it, and denied hercross motion pursuant to CPLR 3025 (b) for leave to serve a second amended complaint.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayble to the respondents appearing separately and filing separate briefs.
In considering a motion to dismiss a complaint for failure to state a cause of actionpursuant to CPLR 3211 (a) (7), the allegations in the complaint should be accepted astrue, and the motion should be granted only if the facts as alleged do not fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rietschel v Maimonides Med.Ctr., 83 AD3d 810 [2011]; Peterec-Tolino v Harap, 68 AD3d 1083, 1084 [2009]).
Here, the Supreme Court properly determined that the plaintiff failed to state a causeof action against the defendants David H. Brown, Hindsight Biblical Counseling, andHindsight Ministries, Inc. (hereinafter collectively the Brown defendants), to recoverdamages for negligence and professional malpractice, based upon allegations regardingthe Brown defendants having provided the plaintiff with biblical counseling (seeLangford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494, 495-496 [2000];cf. Marmelstein v Kehillat NewHempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 21-22[2008]; Rodrigues-Lytwyn vRoman Catholic Diocese of Brooklyn, 79 AD3d 840, 841 [2010]; cf. also Dupree v Giugliano,87 AD3d 975 [2011]; Coopersmith v Gold, 172 AD2d 982, 984 [1991]).Accordingly, the Supreme Court properly granted that branch of the Brown defendants'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the amended complaintinsofar as asserted against them.
Furthermore, the plaintiff failed to state a cause of action against the defendantTrinity Presbyterian Church to recover damages for negligent supervision (see Doe v Roman Catholic Dioceseof Rochester, 12 NY3d 764, 765-766 [2009]; Rodrigues-Lytwyn v RomanCatholic Diocese of Brooklyn, 79 AD3d at 841; Spielman v Carrino, 77 AD3d 816, 818 [2010]).Accordingly, the Supreme Court properly granted the motion of the defendant TrinityPresbyterian Church pursuant to CPLR 3211 (a) (7) to dismiss the amended complaintinsofar as asserted against it.
The Supreme Court providently exercised its discretion in denying the plaintiff'scross motion for leave to serve a second amended complaint, since the proposed secondamended complaint was palpably insufficient and patently devoid of merit (seeCPLR 3025 [b]; PutnamCounty Sav. Bank v Aditya, 91 AD3d 840, 841 [2012]; Ferrandino & Son, Inc. v WheatonBldrs., Inc., LLC, 82 AD3d 1035, 1037 [2011]). Balkin, J.P., Chambers, Austinand Roman, JJ., concur.