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December 6, 1991


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 negligence.


Our analysis must be based on the facts well pleaded as amplified by the affidavits, without regard to the legal theories or labels attached by the pleader. The facts, denied by defendants, but assumed to be true for purposes of the motion, are found in the plaintiff's complaint and in her affidavit docketed October 1, 1991.

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 1909.

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 1981).

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.

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 publisher).

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 ...

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