D.B. v. Roman Catholic Diocese of Brooklyn

D.B. v Roman Catholic Diocese of Brooklyn 2024 NY Slip Op 33893(U) October 30, 2024 Supreme Court, Kings County Docket Number: Index No. 523812/2019 Judge: Sabrina Kraus Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK KINGS COUNTY PRESENT: HON. SABRINA 8. KRAUS PART CVA 1/ 57 Justice ---------------------- ----------------X INDEX NO. 523812/2019

D.B., MOTION DATE 10/25/2024

Plaintiff, 002 MOTION SEQ. NO. 003

ROMAN CATHOLIC DIOCESE OF BROOKLYN, DECISION + ORDER ON Defendants. MOTION

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The following e-filed documents, listed by NYSCEF document number (Motion 002) 51 - 71; 87 - 96; 107 were read on this motion to/for VACATE

The following e-filed documents, listed by NYSCEF document number (Motion 003) 74 - 86; 97 - 106; 108 were read on this motion to/for STRIKE

BACKGROUND

This is action was brought pursuant to the New York Child Victims Act, CPLR § 214-g.

Plaintiff makes the following allegations in the complaint.

Romano Ferraro (Ferraro) entered seminary in or about 1954 and was ordained as a priest

in May 1960. Prior to ordination, Ferraro left the seminary because he was conflicted over his

sexual proclivity for boys. Diocesan officials, advised by Ferraro of this issue, convinced Ferraro

to return to the seminary and continue to pursue a career in the priesthood.

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He was ordained as a Priest by the Diocese of Brooklyn in May 1960. Ferraro sexually

abused boys from the beginning of his tenure as a Priest, preferring boys ages 12 - 15. He sexually

abused numerous children over decades as an active Priest of the Diocese of Brooklyn.

Ferraro was transferred between different assignments in the Diocese until being assigned

to the United States Navy as a Military Chaplain in or about 1968 and was dishonorably discharged

from the Navy in approximately 1970, based on an allegation of child sexual abuse. Upon returning

from his stint in the U.S. Navy as a Military Chaplain, the Diocese assigned Ferraro to St. Rose of

Lima. At this point, Ferraro had used his position as a Priest to sexually abuse numerous boys

whom he had encountered and groomed in his parish and military assignments.

Ferraro continued his sexual assaults of children through the 1970's and 1980's, including

in assignments outside the territory of the Diocese: St. Louis, Missouri, New Jersey, and Staten

Island.

In approximately 1988-89, after yet another allegation of child sexual abuse, the Diocese

sent Ferraro to St. Luke Institute, an evaluation and treatment facility for pedophile clergy in

Maryland.

Ferraro was arrested in 2002 for the sexual abuse of a boy seven years old in Massachusetts,

convicted, and sentenced to life in prison.

Plaintiff was raised in a devout Catholic family. Ferraro was the family Priest and would

offer to minister and serve as Priest in occasions in the Plaintiff's home and in the homes of his

family relatives, including the homes of his grandparents and his aunt. At these functions or events,

Ferraro would conduct mass, officiate, and preside as Priest, in his full priest garb. On these

occasions, Ferraro would isolate Plaintiff, either alone or with one of his brothers, and fondle

Plaintiffs genitalia.

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Plaintiff witnessed Ferraro fondling his brother's genitalia. These sexual assaults occurred

when Plaintiff was a young child, approximately 8 to 12 years old, in or around 1987 - 1991.

Plaintiff was very close with his grandparents and would often sleep over at their house. Ferraro

would also sleep there. At night, Ferraro would sleep with Plaintiff on the couch downstairs while

his grandparents slept upstairs. Ferraro sexually assaulted or abused Plaintiff on these occasions.

In grooming Plaintiff, Ferraro would give cash to Plaintiff to gain his trust and facilitate

his sexual assaults.

In February of 2019, the Diocese released a list of over 100 Priests, whom it deemed

credibly accused of child sexual abuse. These Priests are acknowledged to have abused children

within the Diocese of Brooklyn over decades. The list includes the name of Ferraro, and states that

he was laicized, in 2011.

Despite receiving credible allegations of child sexual abuse against Priests, the Diocese

acted to conceal these allegations to avoid scandal. This concealment was in accordance with a

policy of the Diocese, as agent, and the Holy See, as principal.

Ferraro died in January 2023

RELEVANT PROCEDURAL HISTORY

On November 12, 2021, the Diocese provided plaintiff with a heavily redacted copy of

Ferraro's personnel file, with a log pertaining to the redactions.

On December 18, 2023, at a compliance conference held in this and related matters,

Plaintiff requested leave of the court to compel production of the unredacted file of Ferraro. At

the direction of this Court, Plaintiff and Defendant filed letter briefs regarding the redactions that

were made to Father Romano Ferraro's personnel file.

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On July 31, 2024, after an in camera review, this Court held that the Diocese must

produce hundreds of previously redacted pages in unredacted form.

To date Defendant has failed to comply with the order.

PENDING MOTIONS

On October 22, 2024, Defendant move pursuant to CPLR §222l(a) for an order vacating

the Court's order directing the production of the specified unredacted pages and for related relief.

Defendant asserts it makes this motion primarily for the purpose of creating an appealable order.

On October 25, 204, Plaintiff cross-moved for an order striking Defendant's answer

pursuant to CPLR 3126 and for related relief.

As the Court has already considered the issues raised herein in the previous order issued

the motion to vacate is denied, and Plaintiffs cross-motion to strike pursuant to CPLR 3126 is

conditionally granted as set forth below.

DISCUSSION

The Court agrees that Defendant has engaged in a persistent campaign to delay discovery

in this and related actions.

The Court finds no legal or factual basis to issue a protective order, if the Court believed

such basis to exist it would not have ordered the redacted pages produced over Defendant's

objections. The memorandum of law in support of this motion simply contains the arguments

previously made by Defendant and rejected for the reasons set forth by the Court in its prior order.

Nor does the Court find there is any basis to further delay Defendant's compliance with this order,

as noted Plaintiff has been seeking this file since 2021.

Turning to the cross-motion, the Court finds it is appropriate to conditionally grant the

relief sought by Plaintiff. CPLR § 3126 vests this Court with broad discretion regarding the nature

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and severity of sanctions to impose upon a party that "refuses to obey an order for disclosure or

wilfully fails to disclose information which the court finds ought to have been disclosed" or

"frustrates the disclosure scheme." Kihl v. Pfeffer, 94 NY2d 118, 122 (1999); Zletz v. Wetanson,

67 NY2d 711, 713 (1986); see Ortega v. City of New York, 9 NY3d at 69, 76, 79 (2007); Berman

v. Szpilzinger, 180 AD2d 612 (1st Dept 1992); Brandi v. Chan, 151 AD2d 853, 854 (3d Dept

1989), lv dismissed 75 NY2d 789 (1990).

The Court finds Defendant's failure to comply with discovery orders and demands to be

dilatory, obstructive and contumacious. See Kutner v Feiden, Dweck & Sladkus. 223 AD2d 488

(1 st Dept 1998). However, under the circumstances of this case, a conditional order of dismissal,

giving Defendant a final chance to comply with the previous court orders to produce the file, is

more appropriate than outright dismissal.

Therefore, the branch of Plaintiff's cross-motion which seeks to strike the answer is

granted to the extent that Defendant's answer will be stricken pursuant to CPLR 3126 unless the

redacted pages are produced to Plaintiff on or before November 18, 2024.

This order shall be self-executing, and will become absolute upon Defendant's failure to

comply, without the necessity of further motion practice. See Standard Fire Ins. Co. v Federal

Pacific Electric Co., 14 AD3d 213 (1 st Dept. 2004); Lopez v City ofNew York, 2 AD3d 693 (2 nd

Dept. 2003).

The Court has considered the other relief sought by both parties and finds said relief

unwarranted.

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This constitutes the decision and order of the Court.

10/30/2024 DATE

~ CHECK ONE: CASE DISPOSED NON-FIN

GRANTED □ DENIED GRANTED IN PART 0 OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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