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HOLMES v. LORCH

August 9, 2004.

ROBERT HOLMES, Plaintiff,
v.
ERNEST LORCH and RIVERSIDE CHURCH, Defendants.



The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

OPINION AND ORDER

This diversity action comes before the Court on the motions of Defendants Ernest Lorch ("Lorch") and Riverside Church ("Riverside") to dismiss the original Complaint, which, to the extent they have not already been resolved,*fn1 have been converted by the Court into motions for summary judgment pursuant to the last sentence of Rule 12(b) of the Federal Rules of Civil Procedure. The summary judgment motions are currently directed to the Amended Complaint, which was filed on January 7, 2004. Plaintiff Robert Holmes ("Holmes") opposes Defendants' motions in their entirety and, in the alternative, moves pursuant to Rule 56(f) for a continuance of those motions pending the opportunity to conduct discovery.

  For the following reasons, Lorch's motion for summary judgment is denied in part and continued in part, and Riverside's motion for summary judgment is granted in its entirety.

  PROCEDURAL HISTORY

  Plaintiff Holmes filed his original ten-count Complaint in this diversity case on April 28, 2003, asserting claims of assault and battery, breach of fiduciary duty, intentional infliction of emotional distress, fraud and negligence against Defendant Lorch, and claims of negligent hiring, retention and supervision against Defendant Riverside Church. The claims arose from Lorch's alleged sexual abuse of Holmes between 1980 and 1983 while Lorch was the director of and a coach in the Riverside Church Youth Basketball Program, and Holmes was a participant in that program. Defendant Lorch moved to dismiss the original Complaint on multiple grounds, including insufficiency of process, statute of limitations, and failure to state a cause of action for breach of fiduciary duty and breach of contract. Defendant Riverside also moved to dismiss the original Complaint on statute of limitations and service of process grounds.

  On December 3, 2003, the Court issued an Order denying without prejudice Lorch's motion to the extent it sought dismissal of the Complaint on grounds of insufficiency of process, granting Lorch's motion with leave to replead to the extent it sought dismissal of the breach of contract claim in Count Five for failure to state a claim upon which relief can be granted, dismissing sua sponte, with leave to replead, the fraud claim in Count Four for failure to plead fraud with particularity pursuant to Rule 9(b) and, pursuant to the last sentence of Rule 12(b), converting the remainder of Lorch's motion to dismiss to a motion for summary judgment. The Court also denied without prejudice Riverside's motion to the extent it sought dismissal of the Complaint for insufficiency of process and converted Riverside's motion to a motion for summary judgment to the extent it sought dismissal on statute of limitations grounds. The Court directed Plaintiff to file and serve an amended complaint. The motions were deemed directed to the amended complaint, and the parties were given additional time to file and serve supplementary argumentative and evidentiary submissions in connection with the motions.

  On January 7, 2004, Holmes filed a ten-count Amended Complaint. Holmes abandoned the fraud claim and included causes of action for assault and battery, breach of fiduciary duty, intentional infliction of emotional distress, breach of contract and negligence. As to Riverside, Holmes again included claims of negligent hiring, retention and supervision.

  Lorch now moves, on statute of limitations grounds, for summary judgment with respect to Plaintiff's assault and battery, breach of fiduciary duty and intentional infliction of emotional distress claims. Lorch also moves for summary judgment on Plaintiff's breach of fiduciary duty and promissory estoppel/breach of contract claims, arguing that Holmes has failed to proffer sufficient evidence to create a genuine issue of material fact as to any of those causes of action. Riverside moves for summary judgment with respect to Holmes's assault and battery, breach of fiduciary duty, intentional infliction of emotional distress, negligent hiring, negligent retention and negligent supervision claims on statute of limitations grounds. Riverside also moves for summary judgment with respect to the assault and battery, breach of fiduciary duty, intentional infliction of emotional distress, equitable estoppel and promissory estoppel/breach of contract claims, on the ground that Lorch's actions cannot be imputed to Riverside under the laws of agency.

  BACKGROUND*fn2

  Plaintiff Holmes was born in 1968. He participated in the Riverside Church Youth Basketball Program from 1980-1983. (2/20/04 Affidavit of Robert Holmes ("Holmes Aff.") at ¶ 2; Amended Complaint at 1.) The program is sponsored by Riverside and consists of various teams divided into different age groups. The youths involved in the program compete regularly in both local and national tournaments. Defendant Lorch served as the program's director and also acted as a volunteer coach during the time that Plaintiff participated in the program. (Id. at ¶ 3.)

  Holmes alleges that Defendant Lorch sexually abused Holmes on multiple occasions during the years in which Holmes was a participant in the Riverside basketball program. (Amended Complaint at 2-3; Holmes Aff. at ¶ 8.) According to Holmes, the abuse took place both at Lorch's private residence and on Riverside's property. (Holmes Aff. at ¶ 9.) Lorch denies ever having any sexual contact with Plaintiff. (Lorch Rule 56.1 Stmt. at ¶ 3.)

  Holmes also contends that, during the period in which the abuse allegedly took place and at various intervals thereafter, Lorch promised Holmes that he would provide for Holmes financially for the rest of Holmes's life so long as Holmes continued to keep the sexual abuse a secret. (Amended Complaint at 3; Holmes Aff. at ¶ 11.) Lorch denies that such a promise was ever made. (Lorch Rule 56.1 Stmt. at ¶ 4.)

  Holmes further contends that, for many years, Lorch lived up to his promise to provide financially for Holmes, and that from 1980 until Holmes began serving a prison term in 2000, Holmes and Lorch were very close, maintaining regular contact. (Holmes Aff. at ¶ 23.) Holmes alleges that, during Holmes's childhood, Lorch furnished him with whatever items he requested, including new sneakers and money to buy food and clothing. (Id. at ¶ 13.) When Holmes became an adult, Lorch allegedly continued to provide for Holmes, paying for Holmes's books at college and giving Holmes and his family money for rent whenever they requested it. (Id. at ¶ 14.) Beginning in 1996, Lorch allegedly began furnishing even larger sums of money to Holmes and his family upon request. Lorch allegedly gave Holmes's mother $25,000 in cash sometime in 1996. (Id. at ¶ 17.) Between 1996 and 1999, Holmes allegedly gave approximately $2,000,000 for Plaintiff's benefit, including money bestowed upon Plaintiff's mother, cousin, common-law wife and friends. (Id. at ¶ 18.) Holmes further alleges that Lorch gave money to other third parties for Holmes's benefit, including auto dealers, landlords, attorneys, doctors, hospitals and business associates of Holmes's record label business. (Id. at ¶ 19.) Holmes also contends that between 1997 and 1999, Lorch gave him $2,000,000 with no strings attached as an investment in Holmes's record label. (Id. at ¶ 20; Exh. A. to Holmes Aff. at 326.) Lorch, however, asserts that he cannot recall having any contact with Plaintiff between 1983 and 1997. (1/26/04 Affidavit of Ernest Lorch ("Lorch Aff.") at ¶ 3.)

  Holmes further contends that Lorch stopped providing for him after Holmes entered prison in 2000. (Holmes Aff. at ¶ 24.) Holmes also alleges that Lorch promised Holmes, after Holmes entered prison, that Lorch would both give rent money to Holmes's common law wife and contribute funds to the operation of Holmes's record label business. (Id. at ¶ 25.) Holmes also asserts that Lorch promised him that, while he was incarcerated, Lorch would handle his business affairs and meet with a recording studio executive interested in doing business with Holmes's record label. (Id.) According to Holmes, Lorch never followed through on these promises and eventually stopped all communications with Holmes. (Holmes Aff. at ¶ 27.)

  Holmes also alleges, in a supplemental affidavit, dated February 26, 2004,*fn3 that Lorch reassured Holmes during a telephone conversation which took place sometime between January 1, 2002, and April 29, 2002, that Lorch was not breaking his promise to provide financially for Holmes, and that he would provide Holmes money for legal fees incurred in connection with Holmes's appeal of his conviction for being a felon in possession of a weapon. (Holmes Supp. Aff. at ¶¶ 4-7.)

  DISCUSSION

  Summary Judgment Standard

  A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is on the moving party to show that no genuine issue exists as to any material fact. Gallo v. Prudential Residential Servs., Limited Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "A factual issue is genuine if it can reasonably be resolved in favor of either party," and "[a] fact is material if it can affect the outcome of the action based on the governing law." Consolidated Edison Co. of New York, Inc. v. UGI Utilities, Inc., 310 F. Supp.2d 592, 602 (S.D.N.Y. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986)). If the moving party meets its burden, the burden then shifts to the non-moving party to proffer facts sufficient to establish that there is a genuine issue for trial. Seiderbaum v. City of New York, 309 F. Supp.2d 618, 620 (S.D.N.Y. 2004); Fed.R.Civ.P. 56(e). "To defeat a motion for summary judgment, the nonmoving party `must do more than simply show that there is some metaphysical doubt as to the material facts.'" Consolidated Edison, 310 F. Supp at 602-03 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "The nonmoving party must produce evidence in the record and `may not rely simply on conclusory ...


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