UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
October 24, 2006
ANGIE BOUCHARD, PLAINTIFF,
NEW YORK ARCHDIOCESE, CARDINAL JOHN EGAN, CHURCH OF OUR SAVIOR, FR. KENNEDY, FR. : "JOHN DOE", AND "JOHN DOE" RELIGIOUS ORDER, DEFENDANTS.
The opinion of the court was delivered by: Haight, Senior United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Angie Bouchard has sued Defendants for alleged misconduct relating to certain sexual transgressions she claims she suffered at the hands of Defendant Father Fernando Kennedy, a Catholic priest. The action was commenced by the filing of a summons and notice in New York State court on August 31, 2004, and was subsequently removed to this Court on the ground of diversity of citizenship.
Currently pending before the Court are two motions by Defendants. First, the Archdiocese of New York s/h/a New York Archdiocese, Edward Cardinal Egan s/h/a Cardinal John Egan, and the Church of Our Savior (collectively, "the Church Defendants")*fn1 move for summary judgment in their favor on the ground that the Plaintiff's two surviving claims are time-barred by the applicable statutes of limitations. Second, a motion is made on behalf of Cardinal Egan alone for reconsideration or reargument of that portion of the Court's prior opinion, reported at 2006 WL 1375232 (S.D.N.Y. May 18, 2006) ("Bouchard I"), denying Cardinal Egan's motions to dismiss and/or for summary judgment.
For the reasons that follow, the Church Defendants' motion asserting time bar is granted in part and denied in part. Cardinal Egan's motion is granted and summary judgment will be entered dismissing the complaint against him.
The relevant factual background of this action is set forth in detail in Bouchard I, familiarity with which is assumed. For present purposes, it is sufficient to state that Plaintiff alleged in her Amended Complaint that Fr. Kennedy sexually abused her while he was employed at the Church of Our Savior, a parish within the New York Archdiocese, and that the Church Defendants were liable for Kennedy's improper acts, based upon a number of legal theories.
Bouchard I decided motions made by the Church Defendants to dismiss the Plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative for summary judgment under Fed. R. Civ. P. 56. Specifically, Bouchard I dismissed Plaintiff's claim against the Church Defendants for the intentional tort of battery, see 2006 WL 1375232, at *4; declined to dismiss her claim against those Defendants for their negligent hiring, supervision, or retention of Fr. Kennedy, id. at *4-5; dismissed her claim against those Defendants for negligent infliction of emotional distress but declined to do so with respect to her claim for intentional infliction of emotional distress, id. at *5-6; dismissed her claim against those Defendants for breach of a fiduciary duty, id. at *6-7; and denied the Church Defendants' motion for summary judgment on Plaintiff's claim for negligent hiring, supervision, or retention, id. at *7-9. These decisions were made on the basis of the record then before the Court. As will appear in the Discussion in Part II, that record has been expanded by subsequent submissions.
A. The Motion for Summary Judgment Based on the Statutes of Limitations
The Church Defendants have moved for summary judgment in their favor pursuant to Fed. R. Civ. P. 56 on the ground that Plaintiff's claims are time-barred by the applicable statutes of limitations.*fn2
1. Standard of Review
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). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact; this burden is satisfied if the moving party can point to the absence of evidence necessary to support an essential element of the non-moving party's claim. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). If "as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the non-moving party," then summary judgment should not be granted. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). The substantive law will identify which facts are material. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.").
An adverse party resisting summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
2. Propriety of Summary Judgment
a. Negligent Hiring/Supervision Claim
The applicable statute of limitations for a negligent hiring or supervision claim is three years. N.Y. C.P.L.R. § 214(5). See, e.g., Green v. Emmanuel African Methodist Episcopal Church, 718 N.Y.S.2d 324 (App. Div. 1st Dep't 2000). The statute of limitations begins to run from the date of the commission of the act or injury complained of. See Marino v. Proch, 258 A.D.2d 628 (N.Y. App. Div. 2d Dep't 1999).
The Church Defendants argue that the allegations made against Fr. Kennedy in the Amended Complaint relate to misconduct purportedly occurring in July and August of 2001. Therefore, according to the Church Defendants, since Plaintiff did not file her action until August 31, 2004, Plaintiff's claims are barred by the three-year statute of limitations.
However, Plaintiff contests the Church Defendants' contention that alleged sexual misconduct did not occur after August 30, 2001. Plaintiff has submitted a sworn affidavit stating that she "had involvement with and was molested by Fr. Fernando Kennedy in July, August and September 2001." Affidavit of Plaintiff Angie Bouchard, dated July 5, 2006, ¶ 2 (emphasis added). She further asserts that "the last of my face to face meetings and physically abusive experiences with Fr. Kennedy occurred from September 3 to September 7, 2001, and Fr. Kennedy was still working at and in the Church of Our Savior during this time." Id., ¶ 4.
Moreover, Plaintiff has controverted the assertion in the Church Defendants' statement of uncontested facts that "[t]he alleged incidents of sex abuse . . . occurred during July and August 2001," as averred in the Church Defendants' Statement Pursuant to Local Civil Rule 56.1, dated June 7, 2006, ¶ 2. Plaintiff's statement of uncontested facts asserts that "[t]he plaintiff was molested and sexually abused by Fr. Kennedy in September, 2001, and specifically during the time period from September 3, 2001 to September 7, 2001." Plaintiff's Rule 56.1 Statement of Uncontested Facts, dated August 2 & 3, 2006, ¶ 2.
Based on the foregoing, I conclude that the Church Defendants have failed to meet their burden of showing the absence of any genuine issue of material fact regarding the statute of limitations issue. Plaintiff's sworn statements allege sexual misconduct into September 2001, which is less than three years prior to August 31, 2004, the date upon which the complaint was originally filed. The Church Defendants' first item of evidence in support of their motion, the affidavit of Monsignor Desmond O'Connor,*fn3 wherein he states that Ms. Bouchard previously told him she was sexually abused during July and August 2001, is sufficiently countered by the sworn statements of Plaintiff. Further, the Church Defendants' proffer of copies of checks issued by the Church of Our Savior to Fr. Kennedy (dated August 13, 14, and 30) as evidence that the alleged sexual misconduct occurred prior to August 31, 2001 is insufficient to foreclose the possibility that misconduct did in fact occur on or after that date. Genuine fact questions remain on this issue.
As a result, the Church Defendants' motion for summary judgment in their favor on statute of limitations grounds with regard to Plaintiff's negligence claim is denied, without prejudice to renew if further discovery reveals that all the misconduct Plaintiff alleges occurred prior to August 31, 2001.*fn4
b. Intentional Infliction of Emotional Distress Claim
Claims for intentional infliction of emotional distress are governed by the one-year statute of limitations for intentional torts specified in N.Y. C.P.L.R. § 215(3). See, e.g., Forbes v. Merrill Lynch, Fenner & Smith, Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997) ("It is well established under New York law that a claim for intentional infliction of emotional distress has a one-year statute of limitations.") (citations omitted). When applying the statute of limitations to a claim of intentional infliction of emotional distress, "all acts occurring before the limitations period are excluded from consideration." Santan-Morris v. N.Y. Univ. Med. Ctr., No. 96 Civ. 621, 1996 WL 709577, at *2 (S.D.N.Y. Dec. 10, 1996) (citations omitted).
Therefore, in the case at bar, since the action was commenced on August 31, 2004, a claim arising out of any allegedly intentional misconduct occurring prior to August 31, 2003 would be time-barred. As discussed in Bouchard I, 2006 WL 1375232, at *5-6, to the extent Plaintiff is asserting a claim for intentional infliction of emotional distress against the Church Defendants, that claim appears to be based on some sort of scheme of concealment of Fr. Kennedy's alleged wrongdoings, or a failure to warn those in Plaintiff's position of Fr. Kennedy's alleged propensities for sexual abuse. It seems, however, that any conduct giving rise to such a claim would have occurred well before August 31, 2003, and in all likelihood prior to or contemporaneously with the alleged misconduct which purportedly occurred during the summer of 2001. Moreover, Plaintiff's affidavit submitted in response to the Church Defendants' motions does not make any claims that any alleged conduct intended by the Church Defendants to inflict emotional distress upon Plaintiff occurred after August 31, 2003 (in fact, the affidavit does not appear to contain any assertions related to an intentional infliction of emotional distress claim at all).
As a result, I conclude that any intentional infliction of emotional distress claim asserted by Plaintiff is time-barred. Accordingly, I grant the Church Defendants' motion for summary judgment on this claim.
B. Cardinal Egan's Motion for Reconsideration or Reargument
As previously noted, the Defendant Cardinal Egan moves for reconsideration or reargument of that portion of Bouchard I that denied his motions to dismiss Plaintiff's claims against him or for summary judgment.
1. Standard of Review
Motions for reconsideration or reargument are governed by Local Civil Rule 6.3, which requires the moving party to identify "the matters or controlling decisions which counsel believes the court has overlooked." As the wording of the Rule suggests, such motions are ordinarily made on the basis of the record existing at the time when the Court issued the challenged decision. Thus it has been held that the successful movant for reconsideration "must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Koehler v. Bank of Bermuda Ltd., No. M18-302, 2005 WL 1924746, at *1 (S.D.N.Y. Aug. 10, 2005) (citation omitted). However, au fond the Court's proper function on a motion for reconsideration is to determine whether "controlling decisions or data" are shown which "might reasonably be expected to alter the conclusion reached by the court." Valentine v. Metro. Life Ins. Co., No. 85 Civ. 3006, 2005 WL 1278524 (S.D.N.Y. Aug 10, 2005), at *2 (citation omitted). In the case at bar, both Defendant Egan and Plaintiff Bouchard have filed submissions subsequent to the issuance of Bouchard I. Those additional submissions contain admissible evidence which is relevant to the question presented, namely, whether Bouchard has a viable claim that Egan is liable to her for any harm inflicted upon her by Fr. Kennedy. I will consider the substance of those submissions in deciding the present motion, and describe them in turn.
2. Additional Submission by Defendant Egan
Cardinal Egan submits an affidavit to which he swore on August 24, 2006.*fn5 He begins his affidavit by summarizing the boundaries and demographics of the New York Archdiocese, of which he is the spiritual leader and chief administrative officer: ten counties, 405 parishes, 1,536 priests, 3,028 nuns, 209 diocesan and parish elementary schools, 23 diocesan and parish high schools, 5,400 lay teachers, and more than 2.5 million confirmed Roman Catholics. Affidavit, ¶¶ 2, 3.*fn6 Egan then turns to the factors central to Bouchard's effort to hold him personally liable for the conduct within the Archdiocese's boundaries of a priest visiting from a foreign diocese, such as Fr. Kennedy. On that score, it is useful to quote the pertinent paragraphs of Egan's affidavit in their entirety:
4. When priests from other dioceses and from religious orders visit parishes within the Archdiocese, there is virtually never a reason for them to be brought to my attention. I never meet or speak with the vast majority of priests who visit parishes within the Archdiocese.
5. I am aware that Angie Bouchard has filed a lawsuit alleging improper conduct by one Father Kennedy, who is alleged to have visited a parish within the Archdiocese from Sri Lanka some time in 2001. I can categorically state that I have never met, sanctioned or authorized Father Kennedy, nor did I have anything to do with his alleged presence or purported service in the parish. Until Ms. Bouchard complained to the Archdiocese in 2004, I had never even heard of Father Kennedy. Finally, I do not know Ms. Bouchard, and am only aware of her because of the allegations she has made.
6. I have absolutely no personal knowledge of, and had no personal involvement in, the acts alleged in the Plaintiff's lawsuit.
3. Additional Submissions by Plaintiff
With a letter to the Court dated September 25, 2006, counsel for Plaintiff encloses a number of documents recently produced by the Church Defendants in discovery and applies to have them made a part of the record on these motions. I grant that application and consider the contents of the documents.
These documents comprise six pages. The first five were apparently generated by the Archdiocese's Office of Priest Personnel. They refer to the complaint which Plaintiff lodged with the Archdiocese, initially through her lay counselor, about Fr. Kennedy's conduct. The sixth page appears to be a page from a newsletter issued by the Church of Our Savior. The Office of Priest Personnel is headed by Monsignor Desmond O'Connor, whose affidavit verified on November 29, 2005 was referred to in Bouchard I, 2006 WL 1375232, at *2. Page 2 of this latest submission is a memorandum dated June 14, 2004 Monsignor O'Connor dictated to the files, describing a meeting held on that date between himself, a "Sister Eileen" (not further identified), and Bouchard. O'Connor's memorandum contains this discussion, pertinent to the role of Cardinal Egan vis-a-vis Fr. Kennedy:
After the initial conversation to get acquainted, we discussed Father Kennedy. I told her we where [sic] not able to provide details about him because we did not have a file on him. He was summer help at Our Savior during the summer of 2001. This was just after the pastor, Father Jeremiah O'Neill, passed away. There was no pastor at the parish at the time. Fr. Hennessy was appointed administrator, but was not present because of cancer treatments. Fr. Fernando Kennedy apparently came for summer help without going through the Chancery. I explained to her that all priests had universal faculties to celebrate Mass and hear Confessions, so it was not unusual in the past for pastors to have a priest help out without getting all the paperwork. I also assured her that this was no longer the case, and that now the Dallas Charter required all priests to have a Good Standing Form before receiving faculties. Now all priests who helped out here had to receive Archdiocesan faculties.*fn7
The "Dallas Charter" mentioned in O'Connor's memorandum is undoubtedly the Charter for the Protection of Young People approved and promulgated on June 14, 2002 by a conference of American Catholic bishops convened in Dallas to address the problem of sexual misconduct by priests. The norms and procedures set forth in the Dallas Charter required Vatican approval and contemplated implementation at the archdiocesan and diocesan levels. Under Fed. R. Evid. 201 I may judicially notice the promulgation of the Dallas Charter; and I draw the inference that in response to the Charter the New York Archdiocese in 2002 enacted changes in its procedures, one of which O'Connor described in his 2004 memorandum. Specifically, the pre-2002 practice of viewing all ordained priests as having "universal faculties," so that a visiting priest did not have to go "through the Chancery" and generate "all the paperwork" inherent in a vetting by the Archdiocese, was changed to require all visiting assisting priests "to receive Archdiocesan faculties."
Plaintiff also submits an affidavit verified on September 8, 2006 by Fr. Robert M. Hoatson, an ordained Catholic priest, who purports to express an opinion as an expert witness that, inter alia, "Cardinal Egan is not being truthful if he claims he knew nothing of the Fr. Kennedy appointment," ¶ 8, and "[u]nder the circumstances of this case, Cardinal Egan is clearly the employer of Fr. Kennedy and responsible for Fr. Kennedy's actions, and especially since some of the acts occurred on and at church property." ¶ 11.*fn8
4. The Merits of Cardinal Egan's Motion for Reconsideration
Viewing the case upon this expanded record, it is apparent that Cardinal Egan's motion for reconsideration must be granted and summary judgment entered dismissing Plaintiff's complaint against him. That result is mandated by the Second Circuit's opinion in Ehrens v. Lutheran Church, 385 F.3d 232 (2d Cir. 2004).
Ehrens is instructive because, as in the case at bar, a church member sued ecclesiastical authorities for negligently supervising or retaining a minister who allegedly committed sexual assaults upon the church member (a minor at the time). Specifically, the plaintiff in Ehrens alleged that from 1962 until 1977 Frederick Chapman, an ordained Lutheran minister, served as a pastor for a Lutheran congregation located in New York. Defendant The Lutheran Church-Missouri Synod is the central advisory and organizational body of America's second-largest Lutheran Church. The Synod is divided into several geographical Districts, each of which, as the Synod's representative, performs the functions of the Synod at the local level. Defendant The Lutheran Church-Missouri Synod Atlantic District exercises jurisdiction over Lutheran congregations located in the New York area.
In 1977 Chapman resigned from his New York congregation and moved to Massachusetts. The Lutheran Atlantic District transferred his name to the New England District's roster of ordained ministers. In 1981 Chapman requested and was granted emeritus status. In 1990 or 1991, Chapman joined a Lutheran congregation in Massachusetts. As a retired minister, Chapman sometimes assisted the regular pastors in their clerical duties. Plaintiff Ehrens, a member of the same congregation, met Chapman at the church and alleged that in 1994 and 1995 Chapman sexually assaulted him, the assaults taking place at Ehrens's and Chapman's respective residences.
Plaintiff Ehrens's complaint against the Lutheran Synod and its Atlantic District (collectively referred to by the Court of Appeals as "the defendants") alleged that "the defendants are liable for Chapman's tortious conduct on a theory of negligent retention or supervision." 385 F.3d at 235. That is the gravamen of Plaintiff Bouchard's complaint against Cardinal Egan in the case at bar. The District Court in Ehrens granted the defendants' motion for summary judgment. The Second Circuit affirmed.
The first lesson Ehrens teaches is that "[i]n determining the appropriateness of a grant of summary judgment, we, like the district court in awarding summary judgment, may rely only on admissible evidence " 385 F.3d at 235. That limitation is mandated by the language of Fed. R. Civ. P. 56(e), which provides explicitly that "[s]supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Submissions on summary judgment motions are not limited to affidavits. Fed. R. Civ. P. 56(c) provides that the requisite showing may be made by "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any . . ." Fed. R. Civ. P. 56(e) permits "affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." But Ehrens makes it clear that a court can consider submissions supporting or opposing summary judgment only if they consist of factual material that would be admissible at a trial.
In the case at bar, Cardinal Egan's affidavit may be considered because it is based upon his personal knowledge. The same is true of Monsignor O'Connor's June 14, 2004 memorandum to the file. Although that memorandum is not sworn to, I may consider its contents because O'Connor's statement is offered by Plaintiff, the opposing party, and is admissible under the exception to the hearsay rule found in Fed. R. Evid. 801(d)(2)(D).
In stark contrast, Fr. Hoatson's affidavit contains nothing that would be admissible at trial. It would appear that Fr. Hoatson never served at the New York Archdiocese, let alone at the times pertinent to the action. Accordingly he has no personal knowledge of the practices and procedures of the Archdiocese in general and Cardinal Egan in particular with respect to the employment and supervision of a visiting priest such as Fr. Kennedy in 2001. Fr. Hoatson's argumentative and conclusory opinions, offered in the guise of a self-proclaimed "expert" and quoted in part supra, would not be admissible at trial. Even if the Court were to qualify Fr. Hoatson at trial as an expert in designated areas -- a doubtful proposition -- Fed. R. Evid. 702(1) requires that the opinion testimony of an expert be "based upon sufficient facts or data," a showing Fr. Hoatson cannot make in connection with the issue in question. Finally, Hoatson's opinion about what Egan knew, did not know, or should have known about Kennedy, and his opinion about whether Egan should be regarded as Kennedy's employer and accordingly legally responsible for Kennedy's conduct, would not be admissible at trial. The first opinion impermissibly usurps the power of the jury to find the facts. The second opinion impermissibly usurps the power of the Court to instruct the jury on the law. See, e.g., Kidder, Peabody & Co. v. IAG Int'l Acceptance Group N.V., 14 F. Supp. 2d 391 (S.D.N.Y. 1998) (collecting cases).*fn9
As for the merits, in Ehrens the Second Circuit held that "[t]o state a claim for negligent supervision or retention under New York law, in addition to the standard elements of negligence, a plaintiff must show: (1) that the tortfeasor and the defendant were in an employee-employer relationship; (2) that the employer knew or should have known of the employee's propensity for the conduct which caused the injury prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises or with the employer's chattels." 385 F.3d at 235 (citations and internal quotation marks omitted). The district court found that Ehrens failed to adduce evidence sufficient to satisfy the second element. Affirming that conclusion, the Second Circuit stated:
We agree. In response to Ehrens's first set of interrogatories, the defendants indicated that prior to July 1997, when the New England District received a letter from Ehrens's former counsel, they were unaware that Chapman had ever engaged in, or been accused of engaging in, sexual misconduct. Ehrens, for his part, failed to counter this assertion with admissible evidence from which a reasonable juror could infer that the defendants, at any time prior to the relevant incident, knew or should have known of Chapman's propensity to assault minors or otherwise to engage in inappropriate sexual conduct. The district court therefore properly awarded summary judgment to the defendants on Ehrens's negligence claims, all of which he premised on a theory of negligent retention or supervision.
Id. (footnote omitted).
With respect to Bouchard's claims that Cardinal Egan negligently supervised or retained Fr. Kennedy as an assisting priest at the parish, there is no discernible difference in the proof and lack of proof on this element in Ehrens and in the case at bar. The affidavits of Cardinal Egan and Monsignor O'Connor, amplified by O'Connor's contemporaneous memorandum prepared before Bouchard commenced this action, demonstrate that Egan neither knew nor should have known "at any time prior to the relevant incident" of Fr. Kennedy's propensity "to engage in inappropriate sexual conduct" (again quoting Ehrens). These averments of lack of knowledge are indistinguishable from those proffered by the Lutheran hierarchy in Ehrens; and, like the plaintiff in Ehrens, Bouchard does not suggest the existence of any admissible evidence that would allow a jury to find the existence of such knowledge on Egan's part.*fn10
It might be argued on Bouchard's behalf that the more stringent procedures with regard to hiring visiting priests that the Archdiocese, presumably at Egan's direction, adopted in 2002 in response to the Dallas Charter would support a jury finding that the less careful procedures in effect pre-Dallas Charter in 2001, when Fr. Kennedy was hired to assist at Our Savior, constituted negligent hiring ascribable to Egan. But such a theory of negligent hiring is not legally viable in the case at bar. In Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159 (N.Y. App. Div. 2d Dep't 1997), the plaintiffs' complaint against the Diocese alleged that they were sexually abused by an ordained priest from Venezuela who was visiting at a Brooklyn parish. The Appellate Division affirmed the holding of the trial court that the priest's conduct "did not fall within the scope of his employment and therefore the [Diocese] is not vicariously liable for his conduct under the theory of respondeat superior." 229 A.D.2d at 161 (citations omitted). The court then recited these familiar principles:
In instances where an employer cannot be held vicariously for its employer's torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision. However, a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury.
Id. (citations omitted). Focusing on the concept of negligent hiring, the Kenneth R. court said:
With respect to negligent hiring, the documentary evidence in the record establishes that the [Diocese] did not and could not have known of Jimenez's propensities when he arrived here from Venezuela with a letter of reference. The plaintiffs allege that the [Diocese] should have initiated some investigations of Jimenez before hiring him to work in a church under its control. The question of whether there is such a common-law duty is a question of law for the courts. There is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee. Since Jimenez came to the [Diocese] with a letter of reference from his Archbishop, which gave the appellant no reason to believe there was any problem, the [Diocese] cannot be charged with negligence for failing to investigate further.
Id. at 163 (citations omitted). While in the case at bar there is no present evidence that Fr. Kennedy presented a letter of reference from his bishop when he was hired at the Church of Our Savior, that is not sufficient to distinguish the Appellate Division's holding or rationale in Kenneth R. It is undisputed that Kennedy was an ordained Roman Catholic priest. "Ordination to the priesthood confers a religious, not legal status," Kenneth R. at 162, upon which the parish church of Our Savior was entitled to rely; as for Egan, his Archdiocese was not responsible for Kennedy's ordained status, and in the absence of any evidence that Egan knew or could have known of Kennedy's propensities, he cannot be liable in law for a failure "to screen or determine [Kennedy's] fitness for the priesthood," id. at 163, or for his hiring as a parish assistant.*fn11
When the New York court's decision in Kenneth R. is read together with the Second Circuit's decision in Ehrens, it is apparent that Bouchard has no viable claim against Cardinal Egan for negligent hiring, supervision, or retention of Fr. Kennedy. Summary judgment will therefore be entered dismissing the Plaintiff's complaint as against Egan.*fn12
For the foregoing reasons, the Court makes the following Order:
1. The motion of Defendants The New York Archdiocese, Church of Our Savior, and Edward Cardinal Egan for summary judgment on the basis of the statute of limitations is denied as to Plaintiff's claim for negligent hiring, supervision, and retention of Defendant Fr. Kennedy. That motion is granted as to Plaintiff's claim for the intentional infliction of emotional distress.
2. The motion of Defendant Edward Cardinal Egan for reconsideration or reargument of this Court's opinion dated May 18, 2006 is granted, and his accompanying motion for summary judgment dismissing the Plaintiff's complaint as to him is also granted. The Clerk of the Court is directed to dismiss the Plaintiff's complaint against Egan with prejudice and without costs.
It is SO ORDERED.