The opinion of the court was delivered by: Brieant, Chief Judge.
In this diversity case controlled by New York law,
defendants moved to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(6), on various grounds. Because affidavits
and other information were received and considered, the Court
on October 9, 1991 converted the motion into a motion for
summary judgment pursuant to Fed.R.Civ.P. 56, and opened the
record to further submissions from the parties.
The complaint pleads four separate claims against the
individual defendant, Joseph P. Bishop, framed as claims for
negligence (count I), malpractice (count II), breach of
fiduciary duty (count III) and fraud (count IV).
The complaint also charges the remaining defendants (the
"Church Defendants") with (Count V) responsibility for the
wrongful conduct of Bishop under the doctrine of
respondeat superior, with (Count VI) negligent placement,
retention or supervision of Bishop and (Count VII) with simple
Ms. Schmidt was born in 1948 and became a member of the Rye
Presbyterian Church in 1957. Complaint at ¶¶ 8-9. Three years
later, when she was twelve years old, her parents brought her
to the defendant Bishop for "emotional, spiritual and familial
counseling". Schmidt Affidavit at ¶ 2. At that time Rev. Bishop
was the pastor of the Rye Presbyterian Church. Thereafter,
Schmidt alleges, she became emotionally dependent on Bishop,
since he gave her the "emotional support and guidance" which
she believed she needed. Schmidt Affidavit at ¶ 3.
Shortly after the counseling relationship began, she asserts
that Joseph Bishop initiated "sexual contact". The contact,
described in some detail, did not involve rape or sexual
intercourse, but essentially reflects the crime of sexual
abuse in the second degree, in violation of New York Penal Law
§ 130.60 as presently in effect. This statute, adopted as part
of a comprehensive revision by the legislature in 1965, was
derived from former §§ 483-a and 483-b of the Penal Law of
According to Ms. Schmidt's affidavit, Bishop invoked God as
supporting the conduct in which he allegedly engaged, and
informed her that "the relationship was special and acceptable
in the eyes of the Lord" and that "it was not something [she
could] share with others. . . ." Schmidt Affidavit at ¶ 5.
Although plaintiff left Rye in 1977, the counseling
relationship between plaintiff and defendant Bishop continued
until June 17, 1989, because plaintiff "continued to believe
that the relationship with Joseph Bishop was a special
relationship and that there was nothing wrong with it. . . ."
Schmidt Affidavit at ¶ 6.
The reason that the relationship was ultimately terminated
was that Ms. Schmidt had entered psychotherapy in January
1988. According to her affidavit, it was in the fall of 1989
that, as a result of her therapy, she "began to understand
that the contact with Joseph Bishop was wrong, that he
sexually abused me and that I suffered severe damage as a
result of that abuse." Schmidt Affidavit at ¶ 6.
The nature of the relationship between Ms. Schmidt and
defendant Bishop, as well as her failure to perceive the
wrongfulness of Bishop's actions until she was forty-one years
old, is addressed in the affidavit of Dorothy Miller. Ms.
Miller, a licensed clinical social worker and Ms. Schmidt's
primary treating therapist, avers that Ms. Schmidt "believed
[Bishop] to be her sole confidant", that she therefore "was
incapable of pulling away from Joseph Bishop" and "was
necessarily forced to succumb to Joseph Bishop's wishes."
Miller Affidavit at ¶¶ 5-6.
Ms. Schmidt filed this action on June 17, 1991, and
defendant Bishop answered the complaint on July 17, 1991.
Analysis of the Complaint against Bishop
The facts alleged in this complaint support clearly an
action for a battery or some similar intentional tort, for
which the statute of limitations is one year, N.Y.Civ.Prac.L.
& R. § 215(3) (McKinney 1990); it is equally clear that had the
plaintiff or her family notified the authorities in a timely
fashion — specifically, within two years of the initial
incident — the defendant Bishop might well have been
prosecuted for criminal sexual abuse. N.Y.Penal Law § 130.60
(McKinney 1987); N.Y.Crim.Proc.Law § 30.10(2)(c) (McKinney
Count I of the complaint, however, pleads a negligence claim
against defendant Bishop, alleging specifically that he
breached a duty owed her by entering into the relationship at
all, knowing of his propensities, and that he breached that
duty further by engaging in sexual exploitation of her and
failing to reveal the wrongful nature of that conduct.
Complaint at ¶ 20.
Even if the Court were to invite a trial jury to engage in
the Constitutionally dubious task of setting a standard of
reasonable care for clergymen engaged in counseling, the
obstacle remains that New York courts have rejected uniformly
such attempts to transmogrify intentional torts into
"negligence". See, e.g., Rafferty v.
Arnot Ogden Memorial Hospital, 140 A.D.2d 911, 913, 528
N YS.2d 729, 730 (3d Dep't 1988) (rejecting claim of negligent
assault in sexual molestation case); Mazzaferro v. Albany Motel
Enterprises, Inc., 127 A.D.2d 374, 375, 515 N.Y.S.2d 631, 632
(3d Dep't 1987) ("New York has adopted the prevailing modern
view that, once intentional offensive contact has been
established, the actor is liable for assault and not negligence
. . ."); Trott v. Merit Department Store, 106 A.D.2d 158, 160,
484 N.Y.S.2d 827, 829 (1st Dep't 1985) (same). It is thus
legally impossible to claim that the alleged perpetrator of
deliberate sexual abuse injured the plaintiff negligently.
Similarly, to the extent that the plaintiff's negligence
claim is founded on Bishop's mishandling of the counseling
relationship generally, that claim is properly treated as one
for malpractice, see infra at 326-328. This particular aspect
of defendant's conduct involves a purported breach of
professional standards by an ordained minister, and as such is
cognizable only as a malpractice claim. Papa v. Brunswick
General Hospital, 132 A.D.2d 601, 517 N.Y.S.2d 762 (2d Dep't
1987) (discussing distinctions between simple negligence and
malpractice actions against physicians).
Count III of the complaint charges Bishop with a breach of
fiduciary duty. In perhaps the most widely quoted and
far-reaching New York case on the definition of a "fiduciary"
relationship, the court held:
"Broadly stated, a fiduciary relationship is one
founded upon trust or confidence reposed by one
person in the integrity and fidelity of another.
It is said that the relationship exists in all
cases in which influence has been acquired and
betrayed. The rule embraces both technical
fiduciary relations and those informal relations
which exist whenever one man trusts in, and
relies upon, another. . . . Such a relationship
might be found to exist, in appropriate
circumstances, between close friends . . . or
even where confidence is based on prior business
dealings. . . ."
Penato v. George, 52 A.D.2d 939, 942, 383 N.Y.S.2d 900, 902 (2d
Dep't 1976), appeal dismissed, 42 N.Y.2d 908, 366 N.E.2d 1358,
397 N.Y.S.2d 1004 (1977). See also Restatement (Second) of
Torts § 874 comment a.
Despite this expansive characterization of the term, it is
clear that not every confidential relationship or joint
venture involves as a "fiduciary" relationship. See, e.g., Don
King Productions, Inc. v. Douglas, 742 F. Supp. 741, 769
(S.D.N.Y. 1990) (generally no fiduciary relationship between
boxer and promoter); Kirkland v. American Title Insurance Co.,
692 F. Supp. 153, 157 (E.D.N.Y. 1988) (no fiduciary relationship
between property owners and title insurance company); Sobol v.
E.P. Dutton, Inc., 112 F.R.D. 99, 104 (S.D.N.Y. 1986)
(Weinfeld, J.) (no fiduciary relationship between author and
On the other hand, although the term generally implies the
existence of a professional or commercial relationship,*fn1
the term as defined in New York also comprehends "informal
relations". Compare MacDonald v. Clinger, 84 A.D.2d 482, 446
N YS.2d 801 (4th Dep't 1982) (psychiatrist owed patient
fiduciary duty) with DiMaio v. State, 135 Misc.2d 1021, 517
N YS.2d 675 (Ct.Cl. 1987) (State Division of Veterans Affairs
counselor owed no fiduciary duty to Vietnam veteran being
counseled) and Hector M. v. Commissioner of Social Services,
102 Misc.2d 676, 425 N.Y.S.2d 199 (Fam. Ct. 1980) (social
worker owed no fiduciary duty to client on facts presented).
Irrespective of whether the pastoral relationship may
generally be characterized as a "fiduciary" relationship, the
Court is persuaded that defendant Bishop should prevail on
this count. First, the duty allegedly violated by the
defendant was not so much a special "fiduciary" duty, which
be imposed on an individual as a matter of social policy,
Apple Records, Inc. v. Capitol Records, Inc., 137 A.D.2d 50,
55, 529 N.Y.S.2d 279, 282 (1st Dep't 1988), but rather the
general duty to refrain from violating the penal laws.
Second, in analyzing and defining the scope of a fiduciary
duty owed persons by their clergy, the Court would be
confronted by the same constitutional difficulties encountered
in articulating the generalized standard of care for a
clergyman required by the law of negligence. See infra at pp.
326 et seq. Third, as with her negligence claim, Ms. Schmidt's
fiduciary duty claim is merely another way of alleging that the
defendant grossly abused his pastoral role, that is, that he
engaged in malpractice. MacDonald, supra, 446 N.Y.S.2d at
805-06 (Simons, J., concurring) (plaintiff's claim of
unauthorized disclosure of confidences by psychiatrist was
claim for malpractice rather than for breach of fiduciary
Plaintiff's fourth claim is for fraud. To state a claim for
fraud in New York, a plaintiff must allege:
"(1) that the defendant made a misrepresentation,
(2) as to a material fact, (3) which was false,
(4) and known to be false by the defendant, (5)
that the representation was made for the purpose
of inducing the other party to rely upon it, (6)
that the other party rightfully did so rely, (7)
in ignorance of its falsity, (8) to his injury."
Computerized Radiological Services v. Syntex Corp.,
786 F.2d 72, 76 (2d Cir. 1986) (quoting Brown v. Lockwood, 76 A.D.2d 721,
730, 432 N.Y.S.2d 186, 193 (2d Dep't 1980)). In analyzing
fraud claims under New York law, courts are instructed to
examine closely the sufficiency of plaintiff's complaint, since
the statute of limitations for fraud is significantly longer
than for other civil claims. Von Bulow ex rel. Auersperg v. Von
Bulow, 657 F. Supp. 1134, 1140 (S.D.N.Y. 1987).
Even assuming that the plaintiff has pleaded fraud with the
requisite particularity, her claim under this count suffers
from deficiencies similar to those of her fiduciary duty
claim. A claim for fraud most often contemplates both a
commercial relationship and a pecuniary loss flowing from a
misrepresentation made in the course of that relationship.
E.g., Stich v. Oakdale Dental Center, P.C., 120 A.D.2d 794,
795, 501 N.Y.S.2d 529, 531 (3d Dep't 1986) ("actual pecuniary
injury" was "sole compensable form of damages in a fraud
action") (citations omitted). Furthermore, the injury plaintiff
has suffered in this case flows not so much from Bishop's
misrepresentation that their "relationship was special and
acceptable in the eyes of the Lord", Schmidt Affidavit at ¶ 5,
as from the independently tortious, indeed criminal, sexual
abuse allegedly perpetrated by the defendant. It should also be
noted that where, as here, there is also a claim of
"It is only when the alleged fraud occurs
separately from and subsequent to the malpractice
that a plaintiff is entitled to allege and prove
a a cause of action for intentional tort . . .
and then only where the fraud claim gives rise to
damages separate and distinct from those flowing
from the malpractice."
Spinosa v. Weinstein, 168 A.D.2d 32, 42, 571 N.Y.S.2d 747, 753
(2d Dep't 1991) (quoting Coopersmith, infra). See also Bassile
v. Covenant House, ___ Misc.2d ___, 575 N.Y.S.2d 233 (Sup.Ct.)
(dismissing fraud claim of plaintiff who had allegedly been
sexually abused by defendant priest); Coopersmith v. Gold,
172 A.D.2d 982, 983, 568 N.Y.S.2d 250, 252 (3d Dep't 1991)
(dismissing fraud claim of plaintiff who allegedly had ...