The following e-filed documents, listed by NYSCEF document number (Motion 002) 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 were read on this motion for SUMMARY JUDGMENT.

Defendant Big Brothers & Big Sisters of America, Inc. ("BBBSA") moves for summary judgment pursuant to CPLR § 3212, seeking dismissal of all claims against it on the grounds that it had no affiliation with the "Bona Buddies" mentoring program or the alleged perpetrator, Wayne Harding ("Harding"). BBBSA also requests attorneys' fees, costs, and disbursements, asserting that Plaintiff's claims are frivolous. Plaintiff L.I. ("Plaintiff") opposes the motion, contending that further discovery is required to resolve outstanding factual issues regarding BBBSA's purported involvement in the events giving rise to the claims. Co-Defendant Holy Name Province cross-moves for sanctions against BBBSA, alleging improper litigation tactics.

Plaintiff initiated this action under the Child Victims Act ("CVA"), which was enacted to extend the statute of limitations for alleged survivors of childhood sexual abuse, allowing them to pursue legal action regardless of when the alleged abuse occurred. Plaintiff alleges that between 1987 and 1988, she was sexually abused by Harding, her mentor assigned through St. Bonaventure University's ("SBU") youth program, "Bona Buddies." Plaintiff claims that BBBSA, among other Defendants, is liable for negligent hiring, retention, supervision, and direction, as well as negligent infliction of emotional distress. Plaintiff further alleges that BBBSA maintained oversight or affiliation with the program that facilitated Harding's access to [*2]her and her family.

Previously, Defendant SBU filed a motion to dismiss, which forestalled Plaintiff's ability to pursue discovery as to defendants' respective roles in the events in question. That motion was ultimately decided by the Hon. Alexander M. Tisch on October 18, 2022, but while it was pending Plaintiff lacked an ability to collect evidence necessary to fully oppose the grounds for summary judgment raised within the instant motion. Indeed, during the period in which SBU's motion was pending, Plaintiff could neither obtain documents from SBU nor depose its employees regarding critical topics, including SBU's relationships with other defendants, the program's structure, and the completeness and nature of records maintained by defendants.

Despite this, Plaintiff attempted to advance the case. Standard discovery requests and responses were served by Plaintiff to move the litigation forward. However, no Defendant, including BBBSA, exchanged discovery. Exhibits submitted by Plaintiff demonstrate that defendants have failed to provide any documentary responses, nor participate in depositions. The absence of discovery has left Plaintiff without access to documents or information that might clarify the connections among defendants and the "Bona Buddies" program. Likewise, Plaintiff cannot explore the relationships between SBU and BBBSA, or SBU's records and employees, without further discovery.

Against this background, BBBSA, having already answered the complaint, now brings a motion for summary judgment, asserting that it was unaffiliated with the "Bona Buddies" program. This assertion forms the core of BBBSA's argument for dismissing each claim in the complaint. Plaintiff, however, argues that such a determination cannot be made at this juncture. To be sure, Plaintiff maintains that discovery is necessary to resolve factual questions central to BBBSA's involvement, oversight, or knowledge of the program.

In support of the instant motion, BBBSA contends that it has no legal or factual connection to the "Bona Buddies" program or Harding and is therefore not a proper defendant in this action. BBBSA argues that liability cannot be established without evidence of a duty of care owed by it to Plaintiff, and it highlights the affidavits of its Vice President of Youth Protection, Julie Novak, and SBU's Director of the Franciscan Center for Social Concern, Alice Miller Nation. Both affidavits deny any affiliation between BBBSA and the "Bona Buddies" program. Moreover, BBBSA claims that Plaintiff's refusal to dismiss the case amounts to frivolous conduct under 22 NYCRR § 130-1.1 and seeks attorneys' fees and costs as a result.

Plaintiff, on the other hand, argues that discovery has not been completed and suggests that the affidavits submitted by BBBSA are conclusory and insufficient to resolve material factual disputes. Plaintiff emphasizes that the relationship between BBBSA and the "Bona Buddies" program, as well as any possible oversight or control by BBBSA, should be explored further through depositions and documentary evidence. Plaintiff contends that dismissing the claims at this stage would be premature.

Co-Defendant Holy Name Province opposes BBBSA's motion for sanctions and instead cross-moves for sanctions against BBBSA, alleging that its Notice to Admit improperly sought admissions outside Holy Name's knowledge. Holy Name argues that BBBSA's litigation tactics amount to harassment and have unnecessarily increased the cost and burden of litigation.

Under CPLR § 3212, summary judgment is a drastic remedy that should only be granted [*3]when there is no genuine issue of material fact. The moving party must establish its entitlement to judgment as a matter of law by submitting evidence demonstrating the absence of triable issues of fact. If the movant meets this burden, the opposing party must produce admissible evidence to raise a triable issue (Zuckerman v City of New York, 49 NY2d 557 [1980]). Since summary judgment is a drastic remedy, which deprives a litigant of his day in court, the evidence adduced on the motion must be liberally construed in the light most favorable to the opposing party (Starlite Media LLC v. Pope, 128 AD3d 498, 498 [1st Dept 2015]; Kesselman v. Lever House Restaurant, 29 AD3d 302 [1st Dept 2006]).

CPLR § 3212(f) provides that summary judgment may be denied where facts essential to oppose the motion are unavailable because discovery is incomplete (Glob. Minerals and Metals Corp. v. Holme, 35 A.D3d 93, 103 [1st Dept 2006]). Indeed, courts have repeatedly emphasized that summary judgment is premature when outstanding discovery—particularly depositions—may reveal evidence necessary to resolve the motion (see Mason v City of New York, 121 AD3d 468 [1st Dept 2014]; Blech v West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]; see also Chmelovsky v. Country Club Homes, Inc., 106 AD3d 684 [2d Dept 2013][affirming denial of summary judgment where summary judgment motion raised positions which required discovery]).

Here, Plaintiff has demonstrated that BBBSA's motion is premature and must be denied pursuant to CPLR § 3212(f), which explicitly provides that summary judgment may be denied where essential facts are unavailable because discovery is incomplete. Plaintiff has yet to receive documentary evidence or conduct depositions, both of which are necessary to address key factual issues, including the nature and extent of BBBSA's alleged affiliation with the "Bona Buddies" program and its role, if any, in facilitating Harding's access to Plaintiff's family.

Indeed, Plaintiff's allegations are grounded in the claim that BBBSA maintained some oversight or connection to the program that assigned Harding as a mentor. These allegations raise questions as to whether BBBSA had knowledge of, authorized, or indirectly enabled Harding's participation in the program—questions that cannot be resolved in the absence of depositions and documentary discovery. As this matter proceeds through discovery, Plaintiff will undoubtedly seek to depose BBBSA witnesses to probe the scope of BBBSA's oversight, involvement, or communications with SBU regarding the "Bona Buddies" program. Additionally, discovery into SBU's records may clarify the organizational relationships at issue and uncover any evidence of coordination or tacit approval by BBBSA.

Plaintiff's accompanying affirmation and exhibits underscore the absence of any meaningful discovery exchanged to date. As noted, Plaintiff attempted to advance discovery, but was stalled due to Defendants' failure to respond to standard discovery requests. At the time of the filing of the instant motion, Plaintiff had received no documents, let alone deposition testimony, from BBBSA, SBU, or other Defendants. Further, Plaintiff was precluded from conducting discovery involving SBU, as its motion to dismiss delayed those efforts. Against this backdrop, BBBSA's motion for summary judgment is not only premature but also places an undue burden on Plaintiff and the court to resolve significant factual issues in the absence of the very evidence required to address them.

The affidavits presented by BBBSA, while facially persuasive, are ultimately conclusory and untested. The mere denial of involvement is insufficient, particularly where Plaintiff has plausibly alleged facts suggesting a need for further inquiry. Courts have routinely held that such assertions cannot foreclose discovery that may reveal evidence supporting a plaintiff's claims [*4](Blech, 97 AD3d at 444). Here, Plaintiff's allegations that BBBSA's role may be revealed through further discovery are both reasonable and supported by established precedent.

As the Appellate Division, First Department, has made clear, affidavits alone are insufficient to resolve material factual disputes where discovery remains outstanding (Mason, 121 AD3d at 468). In Mason, the court affirmed that further inquiry through depositions was necessary to test the assertions made in affidavits. Similarly, here, Plaintiff is entitled to depose BBBSA's Vice President of Youth Protection, Julie Novak, and SBU's Director, Alice Miller Nation, to probe the scope of BBBSA's knowledge, authorization, or oversight regarding the "Bona Buddies" program.

Moreover, BBBSA's reliance on conclusory affidavits does not foreclose the possibility that additional facts may emerge during discovery. Speculative claims of non-involvement must be tested through further factual development (see Blech, 97 AD3d at 444 [premature dismissal inappropriate where affidavits raised questions requiring further exploration]). Plaintiff's request for additional discovery is therefore reasonable and supported by precedent.

Accordingly, Plaintiff has shown that additional discovery, including depositions and documentary production, is essential to address the core issues of control, oversight, and affiliation. In light of CPLR § 3212(f) and the binding authority of Mason and Blech, BBBSA's motion for summary judgment must be denied as premature.

BBBSA's request for sanctions under 22 NYCRR § 130-1.1 is denied. While Plaintiff has not yet provided dispositive evidence of BBBSA's involvement, Plaintiff's opposition to summary judgment is not frivolous given the incomplete state of discovery. Similarly, Holy Name Province's cross-motion for sanctions against BBBSA is denied, as the court does not find BBBSA's conduct to rise to the level of harassment or bad faith.

For the reasons stated above, it is hereby:

ORDERED that BBBSA's motion for summary judgment is denied as premature pursuant to CPLR § 3212(f), given the incomplete state of discovery, including the lack of document exchange and depositions, which precludes resolution of material factual disputes regarding BBBSA's alleged involvement and oversight of the "Bona Buddies" program; and it is further

ORDERED that BBBSA's request for attorneys' fees, costs, and sanctions is denied; and it is further

ORDERED that Co-Defendant Holy Name Province's cross-motion for sanctions is likewise denied.

This constitutes the decision and order of the court.