Langford v. Roman Catholic Diocese , 705 N.Y.S.2d 661 ( 2000 )

—In an action, inter alia, to recover damages for negligence and breach of fiduciary duty, the plaintiff, Susan Langford, appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated June 23, 1998, which granted the motion of the defendant Nicholas Sivillo for summary judgment dismissing the complaint insofar as asserted against him, and purportedly granted her motion to vacate an order of the same court, dated January 9, 1998, granting the motion of the remaining defendants for summary judgment dismissing the complaint upon her default in opposing the motion and granted the motion for summary judgment on the merits.

Ordered that the appeal from so much of the order as purportedly granted the plaintiffs motion to vacate the order dated January 9, 1998, and thereupon granted the motion of the defendants, other than Nicholas Sivillo, for summary judgment on the merits, is dismissed as the plaintiffs motion remains pending and undecided (see, Katz v Katz, 68 AD2d 536); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs payable by the appellant.

The complaint asserted causes of action alleging, inter alia, negligence, breach of fiduciary duty, negligent and intentional infliction of emotional distress, and battery, allegedly arising from a sexual relationship the plaintiff had with the defendant Monsignor Nicholas Sivillo. The relationship between Sivillo and the plaintiff commenced in 1989 when, after being diagnosed with multiple sclerosis, the plaintiff “looked to God for direction”. When the plaintiff’s condition went into remission, the plaintiff believed it was due to Sivillo’s prayers. While the relationship between Sivillo and the plaintiff initially involved spiritual counseling, it later evolved to include a sexual component. In 1992, the plaintiff began seeing a therapist and eventually she determined that Sivillo had manipulated and used her. According to the plaintiff’s pleadings, each time Sivillo physically touched her, it was intentional, offensive, and unwelcome, but she acquiesced because she did not want to lose her spiritual link and her “best friend”.

The cause of action alleging that Sivillo negligently handled the counseling relationship in fact stated a claim for malpractice (see, Scott v Uljanov, 74 NY2d 673; Gross v Kurk, 224 AD2d 582). As such, it was properly dismissed because any attempt to define the duty of care owed by a member of the clergy to a parishioner fosters excessive entanglement with religion (see, Joshua S. v Casey, 206 AD2d 839; Schmidt v Bishop, 779 F Supp 321).

Further, the gravamen of the cause of action labeled as one to recover damages for breach of fiduciary duty, was clearly that Sivillo was guilty of clergy malpractice (see, Schmidt v Bishop, supra). The plaintiff, under the care of a psychiatrist because of suicidal thoughts, sought religious and spiritual counseling from Sivillo and any breach of Sivillo’s fiduciary duties can only be construed as clergy malpractice, since it would clearly require a determination concerning Sivillo’s duties as a member of the clergy offering religious counseling to the plaintiff. Further, while the dissent urges recognition of a cause of action to recover damages for breach of fiduciary duty, as the trial court stated, this would require the courts to “venture into forbidden ecclesiastical terrain”. The same is true for the plaintiff’s cause of action to recover damages for negligent infliction of emotional distress and therefore, that cause of action was also properly dismissed.

Finally, the cause of action allegedly based on breach of fiduciary duty, as well as the remaining causes of action alleging intentional torts, were untimely, as the one-year Statute of Limitations had run before this action was commenced. Regardless of how they were pleaded, these causes of action sought to recover damages for the unwelcome, intentional sexual conduct by Sivillo and were thus governed by a one-year Statute of Limitations (see, Tserotas v Greek Orthodox Archdiocese, 251 AD2d 323; Sharon B. v Reverend S., 244 AD2d 878; Jones v Trane, 153 Misc 2d 822). Inasmuch as Sivillo interposed an affirmative defense which alleged that the causes of action for intentional or willful acts, including, but not limited to those labeled as such by the plaintiff, were untimely, the Statute of Limitations defense was not waived.

The plaintiffs claims concerning her motion to vacate the order dated January 9, 1998, which granted a motion by the remaining defendants for summary judgment upon her default in opposing the motion, are not properly before this Court as the order appealed from did not decide that motion (see, Katz v Katz, 68 AD2d 536, supra). Santucci, J. P., Sullivan and Florio, JJ., concur.