The following e-filed documents, listed by NYSCEF document number (Motion 004) 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 50, 54 were read on this motion to DISMISS.

Defendant Grace Church School (hereinafter "GCS") moves for an order pursuant to CPLR §§3211(a)(1) and 3211(a)(7) dismissing the complaint against it. GCS argues that it cannot be held liable for alleged acts of sexual abuse committed between 1950 and 1954, as it was not incorporated until 2005, over 50 years after the alleged events, and is not the successor to any liabilities of Grace Church. Plaintiff A.B.H. ("Plaintiff") opposes the motion, arguing that GCS, as a successor to Defendant Grace Church ("Grace Church"), bears liability under theories of negligence and successor liability for the acts of its predecessor.

This action is brought under the Child Victims Act (CPLR §214-g), which revived [*2]otherwise time-barred claims for childhood sexual abuse. Plaintiff alleges that while a student at Grace Church School from 1948 to 1954, she was sexually abused by Reverend E. Allison Grant ("Reverend Grant"), the headmaster of the school, and Assistant Minister Porteous ("Assistant Minster Porteous"), both of whom were employees of Grace Church and/or the Episcopal Diocese of New York.

Plaintiff asserts multiple causes of action against Defendants, including negligence, negligent hiring, negligent supervision, and negligent retention. Specifically, Plaintiff alleges that GCS, Grace Church, and the Episcopal Diocese failed to protect her from harm, failed to investigate their employees adequately, and created an unsafe environment where the abuse occurred.

GCS argues that it cannot be held liable because it did not exist as an independent legal entity at the time of the alleged abuse. GCS was incorporated in 2005 and thereafter acquired certain assets from Grace Church, including the school buildings. Plaintiff counters that GCS is the successor to Grace Church and that liability attaches under the doctrine of successor liability.

As summarized above, Defendant Grace Church School asserts that it cannot be held liable for the allegations contained in the complaint because it did not exist during the time of the alleged events, which occurred between 1950 and 1954. GCS emphasizes that it was incorporated only in 2005, decades after the abuse is alleged to have occurred, and was therefore incapable of owing any duty to Plaintiff at the relevant time. GCS argues that the school at the time was a ministry of Grace Church, and any liability related to its operation or employees rests solely with Grace Church or the Episcopal Diocese of New York. Additionally, GCS asserts that it cannot be considered a successor to Grace Church, as it did not assume any of the church's liabilities when it acquired certain assets, including the school buildings. To support its position, GCS cites the well-established rule that a corporation acquiring the assets of another is generally not liable for the seller's torts unless specific exceptions apply, as set forth in Schumacher v. Richards Shear Co. (59 NY2d 239, 244—245 [1983]).

GCS further contends that none of the exceptions to the general rule of non-liability applies in this case. First, it argues that there was no express or implied assumption of liabilities in the transaction through which GCS acquired assets from Grace Church. Second, GCS denies the existence of a de facto merger, asserting that there was no continuity of ownership, no cessation of Grace Church's operations, and no assumption of liabilities. Third, GCS argues that it cannot be deemed a "mere continuation" of Grace Church, as the two entities are distinct, with separate governance and management structures. Finally, GCS asserts that there is no evidence or allegation of a fraudulent transaction designed to escape liability. These arguments are supported by reference to In re N.Y.C. Asbestos Litig. (15 AD3d 254, 256 [1st Dept 2005]) and Ring v. Elizabeth Found. for Arts (136 AD3d 525, 526 [1st Dept 2016]).

In addition to its successor liability defense, GCS argues that Plaintiff's negligence claims must fail because the complaint does not sufficiently allege that GCS had notice of the alleged misconduct. GCS emphasizes that actual or constructive notice is a necessary element of a negligence claim, and conclusory allegations of notice are insufficient. It relies on Doe v. NYC Dep't of Educ. (126 AD3d 612, 613 [1st Dept 2015]) and Falzon v. Rockefeller Univ. Hosp. (2021 NY Slip Op 32488[U], *7) to argue that the complaint fails to provide the specific factual [*3]basis required to establish notice.

In opposition, Plaintiff argues that GCS is the legal successor to Grace Church with respect to its operation of the school and is therefore liable for the acts and omissions of its predecessor. Plaintiff contends that the transfer of assets to GCS, including the school buildings, constituted a de facto merger or a continuation of the same entity under a different name. Plaintiff emphasizes that the incorporation of GCS in 2005 was largely formalistic and did not change the essential nature or operations of the school. To support her claims, Plaintiff cites Ring v. Elizabeth Found. for Arts, which highlights the "mere continuation" exception to successor non-liability, as well as Dia CC v. Ithaca City Sch. Dist. (304 AD2d 955, 956 [3d Dept 2003]), which emphasizes that foreseeability of harm is a factual issue that cannot be resolved at the motion to dismiss stage.

Plaintiff also argues that GCS, Grace Church, and the Episcopal Diocese breached their duty of care by failing to supervise their employees adequately and by allowing known or knowable risks of harm to persist. Plaintiff contends that the abuse perpetrated by Reverend Grant and Assistant Minister Porteous occurred over a prolonged period and that staff at the school observed or should have observed inappropriate behavior but failed to act. Plaintiff underscores the heightened duty of care owed to children by institutions responsible for their safety and argues that the foreseeability of harm is a factual question that precludes dismissal. Finally, Plaintiff asserts that the revival provision of the Child Victims Act underscores the importance of adjudicating claims of this nature on their merits rather than dismissing them on procedural grounds.

On a motion to dismiss pursuant to CPLR §3211(a)(1), dismissal is warranted where documentary evidence conclusively establishes a defense to the claims as a matter of law. The evidence must be unambiguous, authentic, and of such nature that it resolves all factual issues as a matter of law. Indeed, on a motion to dismiss under CPLR §3211 (a)(1), courts may grant such relief only where the "documentary evidence" is of such nature and quality —"unambiguous, authentic, and undeniable" — that it utterly refutes plaintiff's factual allegation, thereby conclusively establishing a defense as a matter of law (see Phillips v Taco Bell Corp., 152 AD3d 806, 806-807 [2d Dept 2017]; VXI Lux Holdco S.A.R.L v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019] ["A paper will qualify as 'documentary evidence' if ... (1) it is 'unambiguous,' (2) it is of 'undisputed authenticity,' and (3) its contents are 'essentially undeniable"'].) The Appellate Division, First Department, has explained that the documentary evidence must "definitely dispose of the plaintiff's claim" (Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]).

Under CPLR §3211(a)(7), the court must determine whether the complaint states a legally cognizable cause of action, accepting the allegations as true, granting the plaintiff the benefit of every favorable inference, and liberally construing the pleading in the plaintiff's favor (Leon v. Martinez, 84 NY2d 83, 87—88 [1994]). However, while factual allegations are presumed true, conclusory statements unsupported by factual assertions or legal conclusions masquerading as factual claims are insufficient to survive dismissal (Connaughton v. Chipotle Mexican Grill, [*4]Inc., 29 NY3d 137, 142 [2017]). Indeed, where the complaint consists of bare legal conclusions with no factual specificity (Godfrey v Spano, 13 NY3d 358, 373 [2009]) or where the statements in a pleading are not sufficiently particular to give the court and parties notice of the transactions and/or occurrences intended to be proven (CPLR §3013; Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC, 31 NY3d 1090, 1091 [2018]), the motion to dismiss should be granted. To be sure, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Garber v Board of Trustees of State Univ. of NY, 38 AD3d 833, 834 [2d Dept 2007], quoting Maas v Cornell Univ., 94 NY2d 87, 91 [1999]). CPLR §2013, states that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Thus, conclusory allegations will not suffice (see DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236, 239 [2d Dept 1984]; Fowler v American Lawyer Media, 306 AD2d 113, 113 [1st Dept 2003]; Sheriff v Murray, 33 AD3d 688 [2d Dept 2006]). When the allegations in a complaint are vague or conclusory, dismissal for failure to state a cause of action is warranted (see Schuckman Realty v Marine Midland Bank, N.A., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk Ch., Local No. 852, Civ. Serv. Empls. Assn., 95 AD2d 800, 800 [2d Dept 1983]).

The primary issue raised by this motion concerns whether GCS can be held liable as a successor to Grace Church. It is a well-established principle under New York law that a corporation that acquires the assets of another is generally not liable for the predecessor's torts unless one of the following exceptions applies: (1) the purchasing corporation expressly or impliedly assumed the predecessor's liabilities; (2) the transaction constituted a de facto merger or consolidation; (3) the purchasing corporation is a mere continuation of the seller; or (4) the transaction was fraudulent and intended to avoid the predecessor's liabilities (Schumacher v. Richards Shear Co., 59 NY2d 239, 244—245 [1983]).

The first exception concerns whether GCS expressly or impliedly assumed Grace Church's liabilities during its incorporation and subsequent acquisition of certain assets. GCS has presented documentary evidence, including the Provisional Charter and the ground lease agreement, which explicitly disclaim the assumption of any liabilities by GCS. These documents unequivocally indicate that the acquisition was limited to specific assets—namely, the school buildings and certain operational facilities—while expressly excluding any pre-existing liabilities of Grace Church. Plaintiff, in opposition, fails to identify any evidence or factual allegations demonstrating an express or implied assumption of liabilities by GCS. New York courts have held that, absent clear evidence of assumption, this exception does not apply (see Sweatland v. Park Corp., 181 AD2d 243, 246 [4th Dept 1992]; Schumacher v. Richards Shear Co., 59 NY2d 239, 244—245 [1983]). Accordingly, the first exception is inapplicable.

The second exception is whether the transaction between Grace Church and GCS constituted a de facto merger. To establish a de facto merger, courts examine the following [*5]factors: continuity of ownership, cessation of the predecessor's operations, assumption of liabilities, and continuity of management or personnel (In re N.Y.C. Asbestos Litig., 15 AD3d 254, 256 [1st Dept 2005]).

GCS argues, and the evidence supports, that there was no continuity of ownership between Grace Church and GCS. The governing body of GCS—its Board of Trustees—is distinct from Grace Church's Vestry, with no overlapping ownership or control. Furthermore, Grace Church has continued its operations as an Episcopal church, a fact that Plaintiff concedes. Plaintiff's contention that GCS's formation in 2005 was merely formalistic is unsupported by factual allegations demonstrating continuity of ownership or a cessation of Grace Church's operations. Additionally, the documentary evidence explicitly establishes that GCS did not assume any of Grace Church's liabilities, further precluding a finding of de facto merger (see Matter of New York City Asbestos Litig., 15 AD3d at 256). Thus, the de facto merger exception is also inapplicable.

The third exception requires a showing that GCS is a "mere continuation" of Grace Church. This doctrine applies when the purchasing corporation is essentially the same entity as the seller, characterized by continuity of management, personnel, assets, and business operations (Ring v. Elizabeth Found. for Arts, 136 AD3d 525, 526 [1st Dept 2016]).

Here, the uncontroverted evidence demonstrates that GCS operates independently of Grace Church. Its management structure, as reflected in its incorporation documents, is distinct, and there is no evidence suggesting that Grace Church's personnel or governance continued within GCS after the 2005 transaction. Plaintiff's reliance on Ring v. Elizabeth Found. is misplaced, as that case involved a clear overlap in management and personnel, circumstances absent here. Consequently, the "mere continuation" exception is inapplicable.

The final exception requires a showing that the transaction was fraudulent and designed to enable Grace Church to escape its liabilities. Plaintiff's complaint does not allege fraud with any particularity, nor does it provide any factual basis to infer that the incorporation of GCS and the transfer of assets were undertaken for fraudulent purposes. The court is bound by the well-settled principle that allegations of fraud must be pleaded with specificity under CPLR §3016(b) (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Plaintiff's failure to satisfy this requirement precludes the application of this exception.

Plaintiff's negligence claims against GCS are premised on the assertion that GCS, as the operator of Grace Church School, failed to supervise its employees adequately and allowed known or knowable risks of harm to persist. However, to establish negligence, Plaintiff must demonstrate that GCS owed her a duty of care and that it had actual or constructive notice of the alleged misconduct (Doe v. NYC Dep't of Educ., 126 AD3d 612, 613 [1st Dept 2015]).

The complaint, while extensive in its descriptions of the alleged misconduct, contains critical deficiencies with respect to its allegations of notice. Paragraphs ¶31, ¶55, and ¶67 of the complaint assert, in conclusory terms, that staff and employees essentially should have observed inappropriate behavior by Reverend Grant and Assistant Minister Porteous. However, these [*6]assertions are unsupported by any specific allegations of reports, complaints, or incidents that would have put GCS or its predecessor on notice. Courts have consistently held that conclusory allegations of notice are insufficient to sustain a negligence claim (Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [2d Dept 1997] [dismissing negligent hiring claims for lack of specific allegations showing actual or constructive notice]; see also Doe v. NYC Dep't of Educ., 126 AD3d 612, 613 [1st Dept 2015] [noting the necessity of specific factual allegations to establish notice in negligence claims]).

It is undeniable that the allegations presented in the complaint describe profoundly troubling and serious misconduct. The court is acutely aware of the gravity of these accusations and the immense burden borne by survivors of childhood sexual abuse who pursue legal redress. The revival provision of the Child Victims Act reflects the Legislature's recognition of the need for such claims to be heard. However, the court's role is not to decide cases based on sympathy or the moral weight of allegations but to apply the law impartially and rigorously. As the Court of Appeals has observed, fidelity to the law requires courts to reach conclusions grounded in legal principles, even where those conclusions may be difficult (see Matter of New York County Lawyers' Assn. v. Bloomberg, 19 NY3d 712, 721 [2012]).

Here, the legal deficiencies in Plaintiff's complaint compel the court to dismiss the claims against GCS. The allegations fail to establish that GCS had any duty to Plaintiff during the relevant period or that it had actual or constructive notice of the misconduct alleged. The court reaches this conclusion not without empathy for Plaintiff's plight, but with a firm commitment to the rule of law, which must guide all judicial determinations.

Based on the foregoing, it is hereby

ORDERED that GCS's motion to dismiss is granted, and the complaint is dismissed as against GCS in its entirety; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment in favor of GCS accordingly; and it is further

ORDERED that he Clerk of the Court is directed to amend the caption to remove GCS as a defendant; and it is further

ORDERED that the action shall proceed against the remaining parties.

This constitutes the decision and order of the court.