John Doe No. 4 v Yeshiva & Mesivta Torah Temimah, Inc.

[*1] John Doe No. 4 v Yeshiva & Mesivta Torah Temimah, Inc. 2010 NY Slip Op 52143(U) [29 Misc 3d 1234(A)] Decided on December 14, 2010 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2010

Supreme Court, Kings County

John Doe No. 4, By and through his natural parents and guardians, and By his MOTHER AND FATHER, individually, Plaintiffs,

against

Yeshiva & Mesivta Torah Temimah, Inc., Defendant.

37492/06

Plaintiffs were represented by Michael G. Dowd, Esq.

Defendant was represented by Avraham C. Moskowitz, Esq. of Moskowitz, Book & Walsh, LLP.

Jack M. Battaglia, J.

Plaintiffs' Complaint alleges that, during the 2003-2004 academic year, the infant plaintiff, "John Doe No. 4," was sexually abused by a Rabbi Kolko, a rabbi and teacher at a Jewish day school operated by defendant Yeshiva & Mesivta Torah Temimah, Inc. Causes of action alleging negligence in hiring, retention, and supervision, and breach of fiduciary duty, are asserted on behalf of the infant plaintiff and his parents.

With this motion, Plaintiffs seek an order, pursuant to CPLR 602, consolidating this [*2]action with an action, also pending before this Court, bearing index number 268/07. The Complaint in that action on behalf of an infant plaintiff, "John Doe No. 5," and his parents is identical to the Complaint of Plaintiffs here, except that the sexual abuse of the infant plaintiff is alleged to have occurred during the 2004-2005 academic year. Not surprisingly, the same attorney represents John Doe No. 4, John Doe No. 5, and the respective parents.

Little further information is provided by the movants as to the issues in dispute or the course of proceedings to date. The Court is not provided with the answer served in either action, or any bill of particulars or deposition transcript. According to Defendant, examinations before trial have been held of the infant plaintiffs, their respective parents, Defendant's founder and principal, and several non-party witnesses, with the depositions of the non-party witnesses jointly noticed.

CPLR 602 provides, "When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, . . . and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." (CPLR 602 [a].)

"A motion for consolidation is addressed to the sound discretion of the trial court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact." (Beerman v Morhain, 17 AD3d 302, 303 [2d Dept 2005]; see also Matter of Vigo S.S. Corp. (Marship Corp. of Monrovia), 26 NY2d 157, 161-62 [1970].) "A motion to consolidate pursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion." (Viafax Corp v Citicorp Leasing, Inc., 54 AD3d 846, 850 [2d Dept 2008].) "Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts." (Id.)

Here, common questions of law and fact are at the heart of the respective claims. "In instances where an employer cannot be held vicariously liable for its employee's torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision." (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [2d Dept 1997].) However, a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury." (Id.; see also Ghaffari v North Rockland Cent. Sch. Dist., 23 AD3d 342, 343-44 [2d Dept 2005]; Steinbors v Himmel, 9 AD3d 531, 533-34 [3d Dept 2004].) Plaintiffs assert that witnesses will testify "to facts concerning the abuse by Kolko of other victims, years, in fact, decades, before either John Doe No. 4 or John Doe No. 5 were abused," including "the actions that each witness undertook to bring the abuse to the attention and knowledge of the defendant, [and] the acts and omissions defendant undertook in reaction to the allegations of abuse by Kolko." (Affirmation in support of motion to consolidate ¶ 7.)

Defendant opposes a joint trial, asserting prejudice in that "[p]resentation of both claims [*3]to the same jury would tend to bolster each claim, to [Defendant's] disadvantage." (See Bradford v Coleman Catholic High School, 110 AD2d 965, 966 [3d Dept 1985]; see also Tarshish v Associated Dry Goods Corp., 232 AD2d 246, 247 [1st Dept 1996]; Alter v Oppenheimer & Co., Inc., 8 Misc 3d 1008 [A], 2005 NY Slip Op 50994 [U], * 5- * 6 [Sup Ct, NY County 2005].) According to Defendant, "[t]his type of bolstering' would be even more pronounced here than in [the cited cases] because of the extremely sensitive nature of the abuse allegations." (Affirmation in opposition to motion to consolidate ¶ 22.)

"A general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different occasion . . . Certain exceptions to this rule have been recognized where the evidence offered has some relevancy to the issues presented other than mere similarity. Although not subject to precise categorization, evidence of other similar acts will be admitted if it tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity." (Matter of Brandon, 55 NY2d 206, 210-11 [1982]; see also Coopersmith v Gold, 89 NY2d 957, 958-59 [1997]; People v Molineux, 168 NY 264, 293[1901]; Matter of William S., 70 Misc 2d 320, 324 [Family Ct, Kings County 1972]; Matter of Jose G., 68 Misc 2d 1043, 1048-49 [Fam Ct, NY County 1972].)

There is no assertion by Plaintiffs, nor anything in the record on this motion to suggest, that similar-acts evidence would be admissible pursuant to one of the specified exceptions. It is possible, however, that, based upon the facts and circumstances, evidence of abuse of John Doe No. 4, which allegedly took place during the 2003-2004 academic year, would be relevant to the issues of Defendant's knowledge of Rabbi Kolko's propensity for such conduct and Defendant's failure to act to prevent a repetition during the following academic year, when John Doe No. 5 was allegedly abused.

Even if, however, evidence of the abuse of John Doe No. 4 would be admissible at the trial of the claim of John Doe No. 5, there appears no basis for the admission of evidence of the abuse of John Doe No. 5 at the trial of the claim of John Doe No. 4. Clearly not relevant to any issue of Defendant's knowledge prior to the alleged abuse of John Doe No. 4, the evidence would be inadmissible as prejudicial similar-acts evidence. An otherwise permissible consolidation cannot transform prejudicial evidence into admissibility (see Bove v Medeo, 19 AD2d 646, 646 [2d Dept 1963]; Matter of William S., 70 Misc 2d at 324; see also People v Shapiro, 50 NY2d 747, 756 [1980].) Nor would the potential for serious prejudice be cured by a limiting instruction to the jury.

Although it is clear to the Court that a joint trial of all issues would not be appropriate, it may be that a joint trial of the questions at to the Defendant's knowledge of any propensity of Rabbi Kolko to abuse would be appropriate and practicable. The Court will not order such a limited joint trial at this time, however, for two reasons. First, neither party has requested such an order, and therefore has not commented on it, and the record on this motion is not sufficient for an informed judgment on the issue. Second, the Court is concerned that counsel for the [*4]plaintiffs in these actions may have a conflict of interest in the concurrent representation.

The Court's concern is prompted by the following argument in counsel's affirmation:

"If the cases are not consolidated for trial purposes, John Doe No. 5 would be prejudiced. Given the fact that the defendant has asserted in its Response to Plaintiff's Request for Production that it has no insurance to pay any possible verdict, the reality is if John Doe No. 4 is successful in his action (and a verdict was obtained for anything more than a diminimis [sic] amount), John Doe No. 4 would be required to force a sale of the properties owned by defendant. If such circumstances transpired, and then John Doe No. 5 was similarly successful in his action, with the subject property sold off, John Doe No. 5's opportunity to collect on any judgment damages would be significantly jeopardized." (Affirmation in support of motion to consolidate ¶ 10.)

Counsel goes on to assert that "[t]he natural parents and guardians of plaintiff, John Doe No. 5, have been appraised of this motion . . . [a]nd, they have consented to the consolidation of these two matters." (Id. ¶ 12.) Which, of course, begs the question as to whether the parents of John Doe No. 4 consented after being fully informed.

In any event, there is at least a question as to whether counsel should be representing the plaintiffs in both actions. (See Rules of Professional Conduct, 22 NYCRR §1200.0, Rule 1.7, Rule 1.8 [effective April 1, 2009]; Disciplinary Rules of the Code of Professional Responsibility, DR5-105, DR5-106, 22 NYCRR §1200.24, §1200.25; Matter of New York Diet Drug Litig., 15 Misc 3d 1114 [A], 2007 NY Slip Op 50647 [U], * 7 ["if it is likely that a conflict exists, as here where the recovery of one client is at the expense of the recovery of another, full disclosure must be made"].) Indeed, it is at least arguable that a joint trial would prejudice a substantial right of John Doe No. 4. (See David v Bauman, 24 Misc 2d 67 [Sup Ct, Nassau County 1960].)

Since, as appears above, this motion would in any event be denied, and since neither counsel has had the opportunity to comment on the conflict question, no more will be said about it now.

Plaintiffs' motion is denied.

December 14, 2010

Jack M. Battaglia

Justice, Supreme Court