New York Appellate Team Obtains Pre-Answer Dismissal of Multiple Child Victims Act Matters on Appeal

New York, N.Y. (February 7, 2025) - In significant appellate victories, in both Jane Doe Two v. KIPP Academy Charter School, ___ A.D.3d ___ (1st Dep’t 2025), and Jane Doe Three v. KIPP Academy Charter School, ___ A.D.3d ___ (1st Dep’t 2025), Partner Dean Pillarella, a member of the Appellate Practice, obtained the pre-answer dismissal of two Child Victims Act matters for the firm’s not-for-profit client. 

The plaintiffs, “Jane Doe 2” and “Jane Doe 3,” alleged to have been sexually abused by their middle school teacher in the late 1990s and brought suit under New York’s Child Victims Act. During the relevant period, the plaintiffs admitted that the school in question was a New York City public school. However, they alleged that a not-for-profit corporation, represented by the firm, negligently enacted disciplinary policies, which, in turn, precipitated the alleged abuse. 

Partner Karen Campbell, co-chair of the General Liability Practice, and her team filed pre-answer motions to dismiss in response to both actions in the lower court. Ms. Campbell supported her argument by asserting that the complaints were deficient in articulating a viable cause of action against the client. She substantiated this with documentary evidence, which included the client's articles of incorporation, proving that the client did not exist and had no connection with the school in question during the pertinent period. In Jane Doe 2, the lower court denied the motion, stating that discovery was essential to determine the relationships between the parties, while, in Jane Doe 3, the lower court granted the motion, citing both the complaint and documentary evidence as conclusive proof that the client was an inappropriate party. All parties appealed. 

On appeal, Mr. Pillarella argued that the complaints should be dismissed, as they did not establish any connection between the client and the plaintiffs’ school. Mr. Pillarella argued that the plaintiffs’ theory of liability (in effect, negligent training) was not legally cognizable, as it did not depend on any prior notice that the client had or could have had. Furthermore, Mr. Pillarella asserted that the documentary evidence provides conclusive proof that there was no link between the client and the New York City public schools. The plaintiffs argued that they were entitled to pursue discovery from the client regarding potential liability of a predecessor. Mr. Pillarella argued that the successor liability theory was not properly before the court, since the complaints did not plead any exceptions to the general rule against assuming a predecessor's tort liability, as outlined in Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 244-45 (1983). 

The Appellate Division fully agreed. In Jane Doe 2, the court reversed and granted the client's motion to dismiss, while in Jane Doe 3, it upheld the grant of the client's motion to dismiss. Overall, the court concluded that there was “no reason to deny dismissal as premature under CPLR 3211(d),” as “[t]he facts regarding the corporate existence of the … defendants are based on undisputed documentary evidence and plaintiffs have not alleged facts supporting their other various theories of liability.”

The decision highlights that successor liability, a theory frequently used in cases pertaining to the Child Victims Act, cannot be utilized as a practical method of recovery unless the exceptions put forth by Schumacher are explicitly alleged in the complaint. This illustrates that, even during the pleadings stage, plaintiffs must draft a detailed complaint, as the burden is on them. They cannot use the discovery process to remedy any inadequacies in the complaint. 

The Appellate Division’s decision can be read here.