| Spielman v Carrino |
| 2010 NY Slip Op 07527 [77 AD3d 816] |
| October 19, 2010 |
| Appellate Division, Second Department |
| Valerie Spielman et al., Respondents, v Lawrence Carrinoet al., Defendants, and Grace Gospel Church of Suffolk, Inc.,Appellant. |
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In an action, inter alia, to recover damages for breach of fiduciary duty, intentional inflictionof emotional distress, and negligent supervision, etc., the defendant Grace Gospel Church ofSuffolk, Inc., appeals, as limited by its brief, from (1) so much of an order of the Supreme Court,Suffolk County (Whelan, J.), dated August 4, 2009, as denied that branch of its motion, madejointly with the defendant Sal Puma, which was to dismiss the complaint insofar as assertedagainst it pursuant to CPLR 3211 (a) (7), and (2) so much of an order of the same court datedNovember 17, 2009, as granted those branches of the plaintiffs' cross motion which were tostrike its second, third, and tenth affirmative defenses.
Ordered that the order dated August 4, 2009, is reversed insofar as appealed from, on thelaw, and that branch of the motion of the defendant Grace Gospel Church of Suffolk, Inc., madejointly with the defendant Sal Puma, which was to dismiss the complaint insofar as assertedagainst it pursuant to CPLR 3211 (a) (7) is granted; and it is further,
Ordered that the order dated November 17, 2009, is reversed insofar as appealed from, on thelaw, and those branches of the plaintiffs' cross motion which were to strike the second, third, andtenth affirmative defenses asserted by the defendant Grace Gospel Church of Suffolk, Inc., aredenied as academic; and it is further,
Ordered that one bill of costs is awarded to the defendant Grace Gospel Church of Suffolk,Inc., payable by the plaintiffs.
Valerie Spielman and Cindy Gallo, who are sisters, and Steven Spielman, suing derivatively,commenced this action against, among others, Lawrence Carrino and Grace Gospel Church ofSuffolk, Inc. (hereinafter the church), alleging that Carrino, a former pastor at the church andcounselor to the sisters, engaged in secret, sexual affairs with both of them. The plaintiffs [*2]asserted causes of action against Carrino sounding in, inter alia,breach of fiduciary duty and intentional infliction of emotional distress, and sought to hold thechurch vicariously liable under the doctrine of respondeat superior and directly liable fornegligent supervision. The church and the defendant Sal Puma together moved, inter alia, todismiss the complaint insofar as asserted against the church pursuant to CPLR 3211 (a) (7), andthe Supreme Court denied that branch of their motion.
As the Court of Appeals has recently stated in the context of similar allegations, in order todemonstrate the existence of a fiduciary duty between a cleric and congregant in a formalcounseling relationship, there must be characteristics of " 'de facto control and dominance' " inthe relationship (Doe v Roman CatholicDiocese of Rochester, 12 NY3d 764, 765 [2009], quoting Marmelstein v Kehillat New Hempstead:The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 21 [2008] [internal quotationmarks omitted]). A relationship is marked by de facto control and dominance where thecongregant is " 'uniquely vulnerable and incapable of self-protection' " (Doe v RomanCatholic Diocese of Rochester, 12 NY3d at 766, quoting Marmelstein v Kehillat NewHempstead: Rav Aron Jofen Community Synagogue, 11 NY3d at 22). Although both sistersallege facts which they contend made them uniquely vulnerable and incapable of self-protection,that contention is belied by their acknowledgments in the complaint that they both promptlyended their relationships with Carrino once they learned he was having affairs with both of them.Therefore, since the complaint fails to state a cause of action to recover damages for breach offiduciary duty, the church cannot be held vicariously liable under the doctrine of respondeatsuperior on that basis (see Karaduman v Newsday, Inc., 51 NY2d 531, 545 [1980]).
The plaintiffs also seek to hold the church vicariously liable under the doctrine of respondeatsuperior for intentional infliction of emotional distress. However, Carrino committed the allegedacts while acting outside the scope of his employment. "[L]iability will not attach for tortscommitted by an employee who is acting solely for personal motives unrelated to the furtheranceof the employer's business" (Fernandezv Rustic Inn, Inc., 60 AD3d 893, 896 [2009]; see Judith M. v Sisters of CharityHosp., 93 NY2d 932, 933 [1999]; Manno v Mione, 249 AD2d 372 [1998];Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [1997], certdenied 522 US 967 [1997]).
The plaintiffs failed to state a cause of action sounding in negligent supervision (see Naegele v Archdiocese of N.Y., 39AD3d 270 [2007]; Mataxas v North Shore Univ. Hosp., 211 AD2d 762, 763 [1995]).
The parties' remaining contentions have been rendered academic in light of ourdetermination. Santucci, J.P., Balkin, Belen and Chambers, JJ., concur.