### MM-1-DOE v Catholic Diocese of Peoria 2024 NY Slip Op 33288(U) September 17, 2024 Supreme Court, New York County Docket Number: Index No. 950246/2019 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.NYSCEF DOC. NO. 102 INDEX NO. 950246/2019 RECEIVED NYSCEF: 09/17/2024

PRESENT: 

### SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY HON. SABRINA KRAUS PART Justice 57M

---------------------------------------------------------------------------------X INDEX NO. 950246/2019

MM-1-DOE, Plaintiff,

- V - CATHOLIC DIOCESE OF PEORIA, ST. JOHN THE BAPTIST CATHOLIC CHURCH OF CLINTON, ILLINOIS, Defendants.

---------------------------------------------------------------------------------X MOTION DATE 05/28/2024 MOTION SEQ. NO. 006
DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 006) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98,100,101 were read on this motion to/for SUMMARY JUDGMENT
BACKGROUND Plaintiffcommenced this action seeking damages for sexual abuse he alleges was perpetrated on him by a Priest who was ordained by and the agent and or employee of defendants. Discovery is complete, and Plaintifffiled his note ofissue on June 28, 2024. Defendants now move for summaryjudgmentbased on their defense that the court lacks long armjurisdiction overthem, or alternatively based on Plaintiff's failure to include his claim against Defendants in a 2010 bankruptcy filing. The caption ofthe action is amended to reflect that the action was discontinued against the Archdiocese ofNew York. Forthe reasons set forth below, the motion is denied. ALLEGED FACTS The following facts are alleged in Plaintiff's statement offacts. 950246/2019 MM-1-DOE vs. CATHOLIC DIOCESE OF PEORIA Motion No. 006
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From age 6 to 16, Plaintiffwas groomed and sexually abused byFather Robert Creager ("Creager"). Creager was employed by the Catholic Diocese ofPeoria ("CDOP") and was assigned as the pastor ofSt. John the Baptist Catholic Church ofClinton, Illinois ("St. John"). St. John was a parish church and was part ofCDOP and under the direction and authority ofthe Bishop ofthe CDOP. Plaintiffwas molested in Illinois, which was known to defendants, and was subject to sexual abuse by Creagerwhile in New York City in September of 1980. At that time, Plaintiff and Creagerwere in New York City as part ofa pilgrimage to New York, and later to Rome and Holy Land sponsored, hosted, and directedby defendants. The pilgrimage includedprayer, mass, the sacraments and religious discussion in NY, Rome, and the Holy Land. Creager, with the assistance and approval ofCDOP and St. John, planned and lead the pilgrims. In New York, Creager led Plaintiffto historic religious sites, 19th century churches for immigrants arriving in America and to St. Patrick's Cathedral in New York City. They prayed and participated in mass at the churches. Creager also leadprayers and saidmass and administered the sacraments in the hotel roomhe shared with Plaintiff. Creager also heard the confession ofPlaintiffin the hotel room in NY during the pilgrimage. The Hotel Room is where Plaintiffwas abused. Creagerwas the pastor at St. John for years before the pilgrimage. Creager solicited the Plaintiffand others to become religious pilgrims both privately and from the pulpit. Creager askedparishioners and others attending mass at St. John tojoin the pilgrimage to New York, Rome, and the Holy Land during his homilies at St. John in the months before the pilgrimage. Plaintiffserved Creager's masses at St. John as an altar server and witnessed the above

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solicitations. Three ladies, Ms. Rapier, Ms. Irwin and Ms., Leeker,joinedthem. The ladies were directedby Creager to chaperone and supervise Plaintiffduring the pilgrimage. Defendants advertised, organized, planned, and arranged the pilgrimage. Defendants decided where Plaintiffwent to mass, prayer, received the sacraments, and what activities were pursued during the pilgrimage Plaintiffshared a roomwith Creager. Plaintiffdisputes Defendants' claim that the pilgrimage was really controlledby a travel agency. Plaintiffalleges that although the travel agency offered an itinerary in Rome and the Holy Land, its involvementwith the supervision, education, and leadership ofthe CDOP pilgrims was nonexistent. Moreover, the CDOP pilgrims did not follow the itineraryprovidedby the travel agency, but insteadwere directedby Creager as to pilgrimage activities. In preparation for the pilgrimage to NY, Rome, and the Holy Land, the CDOP required the appointment ofCreager as a short-term guardian ofthe minor Plaintiffduring the pilgrimage. CDOP provided the short-term guardianship documents to Plaintiff's parents to sign. The guardianship documents appointed Creager as Plaintiff's guardian during the pilgrimage. Pursuant to the Statutes for Synod Six in effect at the time, Priests were not permitted to accept guardianship ofa child without permission ofthe bishop. The guardianship documents arrived at Plaintiff's home in a CDOP envelope with a letter from the CDOP to Plaintiff's parents. Upon receipt, Plaintiff's father called the offices ofCDOP and talked to officials there. Plaintiff's father was advised by CDOP officials that the guardianship appointment ofCreager
was a requirement the plaintiffdue to his young age and for medical purposes during the pilgrimage. As aresult, Plaintiff's parents signed the guardianship documents and mailed them to CDOP.

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Defendants knew and shouldhave known through their employees ofprior instances of sexual abuse and sleeping with minors by Creager. In 1956, minors were sexually abusedby Creager at Sacred Heart School in Moline, Illinois. There were at least three alleged sexual abuse victims in Moline prior to 1960 according to CDOP documents. In 1956, there was an additional instance ofsexual abuse by Creager in DeWitt county, Illinois, a county separate from the city ofMoline. In 1960, Creager responded to the missing letter ofBishop Franz thathe would perthe Bishop's suggestion,jointhe military. Bishop Franz recommended Creager to the Military Ordinariate, which was in New York at the time. The Military Ordinariate is also known as the Archdiocese ofthe Military with diocesan authority over all Catholic priests in the U.S. military. The recommendation ofBishop Franz was acknowledgedby clergy in New York where the Military Ordinariate was headquartered at the time. CDOP Bishop Franz recommended Creager by letter to the Military Ordinariate in New York on 5/12/60. The CDOP failed to reveal any abuse allegations against Creager to the Military Ordinariate at the time ofhis recommendation to the military and to the Military Ordinariate. However, on 5/17/60, the Military Ordinariate wrote to the CDOP expressing "misgivings" about Creager's planned release/discharge by CDOP without an assignment from the Military Ordinariate. This suspicion ofCreagerbythe Military Ordinariate due to his discharge bythe CDOP was communicated to CDOP in a letter to Bishop Franz. Despite being made aware ofthe Military Ordinariates concerns regarding Creagerbeing unassigned, on 5/31/60, CDOP Bishop Franz discharged Creager. Creagerwas assigned by the Navy as an officer and a chaplain in January of 1961, after months ofbeing unassigned to a position. Within a few months, Creagerwas forced to resign by

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the Navy due to sexual improprieties with young men. Creager initially sent a letter to Bishop Franz on July 14, 1961, stating that he could not accept an overseas tour without "jeopardizing [his] priesthood and possibly [his] salvation" and that he would be informing the Military Ordinariate ofhis intention to return to CDOP. He explained that he feared war and worried he would become a recluse and be unable to carry out his priestly duties as a result. On July 30, 1961, the Military Ordinariate in New York sent a letter to Bishop Franz explaining the circumstances surrounding Creager's departure from the military. The Military Ordinariate wrote, "Iregret to write thatFr. Robert Creager has been asked to submit his resignation and he should be returning to the diocese about September 1st. I don't have the details, butit is suggested that in a future assignment he be appointed to a busyparish where he not have time to associate too much with young men as effeminate ones may cause him trouble." Plaintiffalleges that this letter from New York clergy to the bishop ofCDOP was code usedby the Military Ordinariate that was understoodby the defendant Diocese. and implied it
was for sex with young men. 1 Creagerwas sent backby the Military Ordinariate to the CDOP to continue as a priest. The records ofthe defendants contain no investigation ofCreager following the letter from the Military Ordinariate, no criminal referral to police, and no disclosure to the public ormembers ofthe church by clergy in NY or Illinois. Creager continued abusing several minorboys when he returned to the Diocese. Plaintiff testified that defendants' employees, including the housekeeper ofCreager at St. John, knew that plaintiffslept with Creager in the rectory and even washed the minor plaintiff's pajamas when he slept there.

1 It is unclear to the Court whether this pertainedto homosexuality or also implicated an attraction to and involvement with minors.

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According to the Report ofthe Attorney General ofIllinois, the defendants conscious!y failed to actwhen they knew ofsexual crimes againstminors in the pastprior to the abuse here. Bishop Meyers ofCDOP claimed lack ofknowledge regarding sex abuses broughtto the attention ofthe Diocese because of"haphazard" filing. He also testified that itwas not the Church's practice to tell the public aboutpriest sexual abuse, because CDOP wished to protect the reputation ofthe priest. The Bishop attempted to reinstate a priestwho had molested a boy and was surprised thatthe parents were "so upset." In some instances, the Bishop simply assigned the accused priest to a newparish. The hiding ofsexual allegations against priests ofthe Peoria diocese was a "practice" according to the report ofthe attorney general ofIllinois. In the Attorney General Report, Abusive Clerics and Religious Brothers in the Peoria Diocese are discussed. Creageris one of the priest abusers discussed and allegations ofhis abuse were deemed credible by CDOP. DISCUSSION SummaryJudgmentStandard It is well settled that summaryjudgmentis a drastic remedy and shouldnotbe granted where there is any doubt as to the existence ofa material issue offact. Blackv. Kohl'sDept. Stores, Inc., 80 A.D.3d 958 (3rd Dept. 2011); Benizii v. Bankof Hudson, 50 A.D.3d 1372 (2008). Considering the drastic nature ofthe remedy, the party moving for summaryjudgmentmust establishprimafacie entitlement tojudgment as a matter oflaw. Jacobsen v. New York City Health andHospitals Corp., 22 N.Y.3d 824 (2014); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728 (2014). "Thisburden is a heavy one and on a motion for summaryjudgment, facts mustbe viewed in the lightmost favorable to the non-moving party." Jacobsen at 833.

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The non-moving party must be accorded the benefit ofevery reasonable inference from the record proof. Winne v. Town of Duanesburg, 86 A.D.3d 779 (2011). Itis not the Court's role to determine issues offact or credibility, butmerely to determine whether such issues exist. Vega
v. Restani Const. Corp., 18 N.Y.3d 499 (2012); Green v. QuincyAmusements, Inc., 108 A.D.3d 591 (2013); Pearson v. DixMcBride, LLC, 63 A.D.3d 895 (2009). Ifthe proponent ofsummaryjudgmentfails to make aprima facie showing ofentitlement tojudgment as a matter oflaw, then the court must deny the motion, regardless ofthe sufficiency ofthe opposition set forth bythe opponent ofthe motion. Voss, supra; Smalls v. AJIIndustries, Inc., IO N.Y.3d 733 (2008). The proponent ofa motion for summaryjudgment cannot rely merely on conclusory, unsubstantiated assertions. Longtemps v. Oliva, 110 A.D.3d 1316 (2013). Itis likewise insufficient for the proponent ofsummaryjudgmentto merely point to gaps in the defendant's proof DiBartolomeo v. St. Peter'sHosp. of City of Albany, 73 A.D.3d 1326 (2010); Rachlin v. MichaelsArts 

### & Crafts, 118 A.D.3d 1391 (2014). A motion for summary judgment shouldnot be granted ifthere is uncertainty as to the existence oftriable issues offact when viewing the evidence in the lightmost favorable to the party opposing the motion. Flower
v. Noonan, 271 A.D.2d 825 (2000). In this action, Defendants have failed to meet theirburden ofestablishingjudgment as a matter oflaw. This CourtHas Jurisdiction OverDefendantsPursuantto CPLR 302(A)(l) CPLR §302 subsections (a)(l), New York's long arm statute, provides in relevantpart: 302. Personaljurisdiction by acts ofnon-domiciliaries. (a) Acts which are the basis of jurisdiction.

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As to a cause ofaction arising from any ofthe acts enumerated in this section, a court may exercise personaljurisdiction over any non-domiciliary, orhis executor or administrator, who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; The Court ofAppeals has repeatedly recognized that CPLR §302(a)(l) "is a 'single act statute' and proofofone transaction in New York is sufficientto invokejurisdiction." Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]. In addition to the "single act", personal jurisdiction attaches where: (1) "the defendant's activities here were purposeful"; and (2) there is
a substantial relationship between the transaction and the claim asserted." Id. In PC-16Doev. HillRegional CareerHigh Sch., 223 A.D.3d 518 (2d Dept. 2024). The Appellate Division heldin pertinent part:

... plaintiffhas made a prima facie showing that defendants are subject to personal jurisdictionunder CPLR 302 (a) (1) which provides, as relevant, that a courtmay exercise personaljurisdiction over any nondomiciliary who in person or through an agent transacts any business within the state. The statute requires "[p]urposeful activities," i.e., "those with which a defendant, through volitional acts, avails itselfofthe privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws" (Fischbarg v Doucet, 9 NY3d 375, 380 [2007] [internal quotation marks omitted]). The statute "does not require that the business in question be commercial in nature" (Edwardo v Roman Catholic Bishop of Providence, 579 F Supp 3d456,473 [SD NY 2022] [internal quotation marks omitted], affd 66 F4th 69 [2d Cir 2023]), and "proof ofone transaction in New York is sufficient to invokejurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d460,467 [1988]). PC-16Doe v. HillReg'l CareerHigh Sch., 223 A.D.3d 518, 518-19 (2024). The FirstDepartment affirmed the trial court's decision to exercise personaljurisdiction
over out-of-state defendants pursuant to CPLR 302(a)(l)based on the plaintiffs allegation that they were sexually assaulted on a trip to New Yorkthat was organized and ledbythe

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defendants' choir director. PC-16Doe at 519 ("the field trip at issue
... constituted 'purposeful activity', in New York, namely, an 'actby which
... defendant purposefully avails itselfofthe privilege ofconducting activities here."') Id. The facts in this matter are analogous to those in PC-16Doe. Here, as alleged, Defendants authorized and promoted a trip to New York

- a purposeful act
- thereby invoking this State's privileges and benefits. The pilgrimage was purposeful religious activity by the Diocese ofPeoria and St. John which involved soliciting pilgrims from the pulpit, the Bishop of Peoria authorizing Creager to lead pilgrims in New York, Rome and the Holy Land, obtaining coverage for Creager to be absent from his parish for almost three weeks to leadpilgrims on a pilgrimage involving vocations, evangelization, religious education and the protection of children. The pilgrimage was a means ofevangelizing plaintiffand for plaintiffto evangelize others by sharing his religious experiences on the pilgrimage with others upon his return home, which he did. During the pilgrimage, Plaintiffengaged in religious study. He also deepened his faith with prayer, daily mass, and the sacraments to increase his commitment to the church and his desire to become a priest. The evangelization ofPlaintiffand others, encouragement of plaintiff/minor's vocation and the study ofthe catholic faith were the business ofthe diocese conducted in New York during the pilgrimage. In New York, Creager led Plaintiffto historic religious cites tied to the early days of Catholicism in the U.S. They prayed and participated in mass at the churches in New York. Fr. Creager also lead prayers and saidmass and administered the sacraments in the hotel roomhe shared with the Plaintiff. Creager also heard the confession ofPlaintiffin the hotel room in NY during the pilgrimage.

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In theirreply, Defendants correctly point out thatPC-16Doe was a motion to dismiss rather than a summaryjudgmentmotion, where the court assumed the truth ofplaintiffs allegations. However, this does notwarrant a differentresult, as Defendant has failed to meet its primafacieburden in establishing the right tojudgment as a matter oflaw. Additionally, Defendant's own reply papers acknowledge the affidavit submittedby Plaintiffcontests the facts upon which they rely in seeking summaryjudgment. However, the Court rejects Defendants' argument that said affidavit contradicts Plaintiffsprior testimony to the point ofrequiring the Court to disregard same. Plaintiff's Cause of Action Under The CVA Could NotHaveBeenAssertedin The 2010BankruptcyProceeding Thirty years after the subject abuse, Plaintifffiled for Chapter 7 Bankruptcy. Atthat time, Plaintiffdid not listhis claims against Defendants in his bankruptcy schedules. Upon the filing ofa bankruptcy petition, an estate is created. Section 541(a)(l) ofthe Bankruptcy Code provides that "all legal or equitable interests ofthe debtor in property as ofthe commencement ofthe case" become property ofthe estate. 11 U.S.C. § 541(a)(l). "Property" includes causes ofaction possessedby a debtor at the time ofthe filing ofthe case. In reRoss, 548 B.R. 632, 637 (Bankr. E.D.N.Y. 2016), ajf'dsub nom. Mendelsohn v. Ross, 251 F. Supp. 3d 518 (E.D.N.Y. 2017). In 2010, when Plaintiffsbankruptcy case was opened, he had no legal or equitable claims which couldhave been asserted against the Defendants. His claims were barredbythe then-operative statute oflimitations. Almost a full ten years later, New York's Child Victims Act, for the first time ever, created a window for the statute oflimitations to be extended in cases like Plaintiffs.

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The question for the court is whether Plaintiffs cause ofaction under the CV A accrued before 2010. The CV A provides in pertinentpart:

... every civil claim or cause ofaction brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result ofconduct which would constitute a sexual offense
... committed against a child less than eighteen years ofage ... which is barred as ofthe effective date ofthis section because the applicable period oflimitation has expired, and/or the plaintiffpreviously failed to file a notice ofclaim or a notice ofintention to file a claim, is hereby revived, and action thereon maybe commenced not earlier than six months after, and not later than two years and six months after the effective date ofthis section. N.Y. C.P.L.R. 214-g (McKinney). The Court therefore concludes that Plaintiffs cause ofaction which could only be assertedbased on the revival provisions in the CV A couldnot have accrued in 2010 as the CV A had not yet been enacted. Based on the same reasoning the Courtrejects Defendants' argument that the complaint mustbe dismissed based on a theory of judicial estoppel. CONCLUSION WHEREFORE it is hereby: ORDERED that Defendants motion for summaryjudgmentis denied; and it is further ORDERED that counsel appear for a virtual pre-trial conference on October 8, 2024, at 3:30 pmwhere a trial date will be set, and a pre-trial conference order issued; and it is further ORDERED that, within 20 days from entry ofthis order, plaintiffshall serve a copy ofthis orderwith notice ofentry onthe Clerk ofthe General Clerk's Office (60 Centre Street, Room 119); and it is further

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### ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the 

### Protocol on Courthouse and County Clerk Procedures for ElectronicallyFiled Cases (accessible at the "E-Filing" page onthe court's website at the address www.nycourts.gov/supctmanh);]; and it is further ORDERED that any reliefnot expressly addressed has nonetheless been considered and is hereby denied; and it is further This constitutes the decision and order ofthis court.

9/17/2024

DATE CHECK ONE :
APPLICATION : CHECK IF APPROPRIATE :

# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

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. 006
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.S.C
. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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