| Doe v Roman Catholic Diocese of Rochester |
| 2008 NY Slip Op 04171 [51 AD3d 1392] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| Jane Doe et al., Appellants, v Roman Catholic Diocese of Rochesteret al., Respondents. |
—[*1] Christopher S. Ciaccio, Rochester, for defendant-respondent Peter M. DeBellis.
Appeal from an order of the Supreme Court, Monroe County (Stephen K. Lindley, J.),entered February 15, 2007. The order granted defendants' motions to dismiss the complaint.
It is hereby ordered that the order so appealed from is modified on the law by denying themotion of defendant Peter M. DeBellis in part and reinstating the breach of fiduciary duty causeof action of plaintiff Jane Doe against him and by denying the motion of defendants RomanCatholic Diocese of Rochester and Bishop Matthew H. Clark in part and reinstating the negligentretention and supervision claims of plaintiff Jane Doe against defendant Roman Catholic Dioceseof Rochester and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action against, inter alia, a priest at their formerchurch, seeking to recover damages allegedly sustained as the result of an adulterous relationshipbetween Jane Doe (plaintiff) and the priest who had undertaken to provide her with marriagecounseling. Supreme Court granted defendants' motions to dismiss the complaint pursuant toCPLR 3211 (a) (7), for failure to state a cause of action. We conclude that the court erred ingranting that part of the motion of defendant Peter M. DeBellis, the priest, seeking dismissal ofthe breach of fiduciary duty cause of action of plaintiff against him. We therefore modify theorder accordingly.
Breach of fiduciary duty is a tort that arises from the violation of a relationship of trust andconfidence (see Rich v New York Cent. & Hudson Riv. R.R. Co., 87 NY 382, 390[1882]). A fiduciary relationship may arise where trust and confidence has been placed in another(see Fisher v Bishop, 108 NY 25, 28-29 [1888]), and where the alleged fiduciary hasassumed control, care, and responsibility for the injured party (see Matter of Gordon vBialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 698 [1978]). A breach of fiduciary dutyoccurs when the fiduciary acts in a [*2]manner that is contrary tothe interest of the person to whom loyalty is owed and thus, contrary to defendants' contention,the issue whether there was a breach of the fiduciary relationship between defendant priest andplaintiff, a parishioner, may be decided without excessive entanglement into ecclesiastical affairs(see generally Restatement [Second] of Torts § 874, Comment a; Mandelblatt vDevon Stores, 132 AD2d 162, 168 [1987]).
We reject the determination of the court that our decision in Wende C. v United Methodist Church,N.Y. W. Area (6 AD3d 1047 [2004], affd 4 NY3d 293 [2005], certdenied 546 US 818 [2005]) is not distinguishable from this case. Here, the complaint allegesthat the sexual misconduct of the defendant priest was a breach of the fiduciary duty that he owedto plaintiff because he had held himself out as a person qualified to conduct marriage counseling,and plaintiff went to him for that purpose. Furthermore, the complaint alleged that the dutyassumed by the defendant priest was "secular in nature, and devoid of any religious dogma oressence." In Wende C., however, the gravamen of the complaint was clerical malpractice,and the complaint in that case did not in fact allege the breach of a fiduciary duty or that the dutyassumed by the defendant cleric therein was secular in nature. We affirmed the order inWende C. and determined, inter alia, that Supreme Court in that case had properlysearched the record and dismissed the cause of action for clergy malpractice against thedefendant cleric. Although the Court of Appeals subsequently affirmed our order inWende C., the Court specified that it was "leav[ing] open for another day the questionwhether [a cause of action for breach of fiduciary duty] may arise between a cleric and aparishioner under very different circumstances, not present here" (id. at 299). Weconclude herein that, at this stage of the litigation, a cause of action for breach of fiduciary dutyagainst the defendant priest has been pleaded. In our view, discovery should be permitted toproceed to enable a court to determine whether the circumstances herein in fact support thatcause of action.
We further conclude that the court erred in granting those parts of the motion of defendantsRoman Catholic Diocese of Rochester (Diocese) and Bishop Matthew H. Clark seeking dismissalof the claims of plaintiff against the Diocese for the negligent retention and supervision of thedefendant priest, inasmuch as the complaint alleges that the Diocese knew about his allegedmisconduct and failed to take any remedial measures (see generally Kenneth R. v RomanCatholic Diocese of Brooklyn, 229 AD2d 159, 163-164 [1997], cert denied 522 US967 [1997], lv dismissed 91 NY2d 848 [1997]). We therefore further modify the orderaccordingly.
Finally, we conclude that the court properly granted those parts of defendants' motions todismiss the claims of plaintiff John Doe inasmuch as there is no allegation that the defendantpriest undertook to provide counseling services to him.
All concur except Hurlbutt and Centra, JJ., who dissent in part and vote to affirm in thefollowing memorandum.
Hurlbutt and Centra, JJ. (dissenting in part). We respectfully dissent in part. In our view,Supreme Court properly concluded that this case is indistinguishable from Wende C. v United Methodist Church,N.Y. W. Area (6 AD3d 1047 [2004], affd 4 NY3d 293 [2005], certdenied 546 US 818 [2005]), and thus properly granted defendants' motions to dismiss thecomplaint in its entirety for failure to state a cause of action. In Wende C., in which thefacts are markedly similar to those alleged in the instant complaint, this Court held, inter alia,that Supreme Court had properly searched the record and granted the defendant cleric summaryjudgment dismissing the cause of action for clergy malpractice against him. We wrote that "[n]osuch cause of action is cognizable in New York, because any attempt to define the duty of careowed by a member of the clergy to a congregant or parishioner would result in excessiveentanglement on the part of the court in matters of religion" (id. at 1050). We further heldthat the court had properly dismissed the complaint against the defendant cleric "insofar as it maybe construed to allege a breach of fiduciary duty," inasmuch as "there is no meaningful analyticaldistinction between a cause of action for breach of fiduciary duty by a cleric and one for clergymalpractice" (id.). We reasoned that, because the alleged [*3]relationship of trust and confidence between the defendant clericand the plaintiffs arose solely out of a pastoral relationship and the pastor was not licensed orotherwise credentialed as a therapeutic counselor, a claim for breach of fiduciary duty could notbe resolved by the application of neutral principles of law (see id. at 1051).
In affirming our order in Wende C., the Court of Appeals concluded that theplaintiffs had not "specifically pleaded" a cause of action for breach of fiduciary duty against thedefendant cleric, and left "open for another day the question whether such a claim may arisebetween a cleric and a parishioner under very different circumstances" (4 NY3d at 299). Havingleft that question open, the Court left unaffected our holding that a parishioner who engaged insexual relations with her pastor in the course of pastoral counseling has no cause of action forbreach of fiduciary duty against a pastor where the pastor has no recognized license or credentialsas a therapeutic counselor.
The only relevant distinctions between Wende C. and this case are that the complaintherein contains an expressly denominated cause of action for breach of fiduciary duty and thatWende C. was determined in the context of summary judgment rather than a motion todismiss. The cases are otherwise identical, in particular to the extent that both involve a claim orcause of action for breach of fiduciary duty based on sexual relations between a parishioner andher pastor during pastoral counseling, and neither pastor possessed any license or credentials as atherapeutic counselor.
Under these circumstances, the doctrine of stare decisis requires that we follow our ownprecedent and affirm the order granting defendants' motions to dismiss the complaint (seeDufel v Green, 198 AD2d 640 [1993], affd 84 NY2d 795 [1995]; see generally People v Taylor, 9 NY3d129, 148-149 [2007]; People v Damiano, 87 NY2d 477, 488-489 [1996, Simons, J.,concurring]). Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.