Argued January 4, 2005; decided February 22, 2005

Wende C. v United Methodist Church, N.Y. W. Area, 6 AD3d 1047, affirmed.

Ciparick, J.

Plaintiffs Wende C. and David C. were parishioners at Hosanna Junction United Methodist Church. During the period between January 1999 and April 2000, they sought individual counseling services from the church pastor Dr. G. Charles T. (Pastor T.). In the course of engaging in apparently intermittent ministerial counseling, Wende C. and the pastor developed a sexual relationship that lasted several months. On November 2, 2000, after David discovered [*2]the affair, plaintiffs commenced this action against defendants Pastor T., the Hosanna Junction United Methodist Church and various other ecclesiastical entities and officials for sexual battery, intentional infliction of emotional distress, clergy malpractice and negligent retention and supervision.

Supreme Court denied plaintiffs' motions and cross motion for summary judgment, granted summary judgment sua sponte to the pastor, and granted the motion and cross motions of the remaining defendants for summary judgment, dismissing the complaint in its entirety. Plaintiffs appealed, and a divided Appellate Division affirmed. As relevant here, the majority held that the claims of battery—arising from incidents of touching that occurred more than a year prior to commencement of this action—were time-barred (see CPLR 215 [3]). As to the remaining encounters between Wende C. and Pastor T., the majority concluded that the record established as a matter of law that their "romantic attachment was mutual and the[ir] sexual contact [was] consensual" (6 AD3d 1047, 1049 [2004]).

The majority next addressed plaintiffs' argument that, in carrying on a sexual relationship with Wende C., the pastor breached his fiduciary duty.^[FN1] While noting that plaintiffs failed to plead this cause of action, the majority concluded "that there is no meaningful analytical distinction between a cause of action for breach of fiduciary duty by a cleric and one for clergy malpractice" (id. at 1050). Finally, the majority dismissed the negligent supervision and retention claims on the ground that no vicarious liability existed in the absence of any wrongful or actionable conduct by Pastor T.

Two Justices dissented in part, voting to reinstate the sexual battery and breach of fiduciary duty causes of action against Pastor {**4 NY3d at 298}T. and the claims of negligent supervision and retention against defendants Western New York Conference of the United Methodist Church, District Superintendent David Lubba and Resident Bishop Hae-Jong Kim. Plaintiffs appeal as of right based on the two-Justice dissent, and we now affirm.

It is well settled that Supreme Court may grant a party summary judgment absent a cross motion for such relief where judgment is required as a matter of law (see CPLR 3212 [b]). A valid claim for battery exists where a person intentionally touches another without that person's consent (see PJI2d 3:3 [2005]; see also Restatement [Second] of Torts § 18, Comment d, Illustration 1). Here, there is no dispute that Pastor T. intended the subject physical contact [*3]with Wende C. The parties only contest whether his actions were based on a lack of consent.^[FN2]

On the record before us, we conclude that as a matter of law the sexual relationship between the parties was indeed consensual. There exist no questions of fact "as to what occurred [and] when" (dissenting op at 300). Indeed, Wende C. admitted that, on February 25, 1999, she initiated discussions with Pastor T. concerning her attraction to him. While she informed him that she preferred to terminate the ministerial counseling at that time, the record includes a sample of subsequent e-mails exchanged between the two expressing a shared affection and professing a growing love for one another. To be sure, after the affair was discovered, Wende C. took the initiative of forwarding these same e-mails to members of the congregation with the stated intention of demonstrating that the subject relationship was "very mutual." Referring to the electronic correspondence as setting forth "a clearer, more accurate and truthful picture" of the affair, she stated in the accompanying letter: "[Pastor T.] was just as responsible as I was in regards to how [the relationship] began and the course it followed."

No record evidence exists that either Wende C.'s physical or emotional condition or prescribed medication impaired her ability to engage in a romantic relationship with Pastor T. or to consent to his physical contact. As there is no proof that Wende C. suffered from infancy, mental impairment or physical helplessness {**4 NY3d at 299}so as to render her consent impossible, Pastor T. was properly granted summary judgment sua sponte on the battery claim.

Moving next to plaintiffs' contentions that Pastor T. breached his fiduciary duties to them, we note that these causes of action were not specifically pleaded. The complaint does not contain any allegation that Pastor T. breached his fiduciary duty to David C. during the period that David received counseling services from the pastor. The language in the complaint most resembling a fiduciary cause of action is found in a paragraph that refers only to Wende C. The paragraph alleges that Pastor T. exploited Wende "in the guise of providing pastoral counselling . . . and in breach of the sacred trust between counsellor and careseeker in the course of the ministerial relationship." The complaint continues to state that the sexual battery alleged therein occurred while Pastor T. "was acting within the authority granted to him by the defendant Church[*4]. . . under the guise of his role as pastor in the ministerial relationship between himself and . . . a congregant, and [in] his position as a responsible member of the clergy."

While the complaint's brief reference to a "sacred trust" may arguably be couched as alluding to a fiduciary duty, the surrounding language and the allegations that follow sound in clergy malpractice, which would improperly require courts to examine ecclesiastical doctrine in an effort to determine the standard of due care owed to parishioners undergoing ministerial counseling (see First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110, 116 [1984] [providing that "civil courts are forbidden from interfering in or determining religious disputes"]; see also Maryland & Va. Eldership of Churches of God v Church of God at Sharpsburg, Inc., 396 US 367, 369 [1970] [Brennan, J., concurring]). Given that no fiduciary cause of action is properly before us, we leave open for another day the question whether such a claim may arise between a cleric and a parishioner under very different circumstances, not present here. Plaintiffs' remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

G.B. Smith, J. (dissenting in part). The two-Justice dissent in the Appellate Division concluded that summary judgment should not be granted because of contested allegations of sexual battery {**4 NY3d at 300}alleged to have occurred within one year of the action which was filed in November 2000 and because of the defendant pastor's breach of a fiduciary relationship. Based upon the dissent at the Appellate Division, I dissent here. I write only to emphasize several points.

Defendant Pastor T. did not oppose the plaintiffs' motion for summary judgment against him. Rather, plaintiffs moved for summary judgment and the defendants, other than Pastor T., cross-moved for summary judgment. The motion court denied the plaintiffs' motion [*5]and granted the defendants' motion. It further searched the record and, on its own motion, granted summary judgment in favor of Pastor T. against the plaintiffs.

It is undisputed that the plaintiffs received marital counseling from Pastor T. The plaintiffs contend that while they were undergoing counseling, said defendant committed battery by forcing himself sexually upon Wende C. Plaintiffs contend further that Pastor T. breached his fiduciary duty by engaging in an inappropriate sexual relationship during the time that he was counseling the marital couple.

Insofar as sexual battery is concerned, there is a question of fact as to what occurred, when it occurred and whether there was consent. As for the allegation of a breach of a fiduciary relationship, I cannot agree with the majority at the Appellate Division that there is no difference between an allegation of clergy malpractice, which would improperly involve the courts in ecclesiastical matters, and breach of a fiduciary relationship.^[FN*] What plaintiffs are alleging is that Pastor T. held himself out as a person qualified to give marital counseling, that they went to him seeking counseling for marital problems and that he breached a duty owed to them. Thus, plaintiffs are making allegations similar to those made against a psychiatrist who holds himself out as a person able to assist with problems of a psychological nature and then abuses the trust. In discussing their disagreement with the majority, the dissenters at the Appellate Division stated:

"We disagree with the majority's conclusion that 'there is no meaningful analytical distinction between a claim of breach of fiduciary duty by a cleric and one for clergy malpractice.' In our view, there is a subtle and important difference between a clergy malpractice {**4 NY3d at 301}cause of action and one sounding in breach of fiduciary duty. A cause of action based upon breach of fiduciary duty rests not on the violation of a generalized professional standard, but on the abuse of a particularized relationship of trust (see Mandelblatt v Devon Stores, 132 AD2d 162, 168 [1987], quoting Restatement [Second] of Torts § 874, Comment a [' "A fiduciary relation exists between two persons when one of them is under a [*6]duty to act for or to give advice for the benefit of another upon matters within the scope of the relation" '])." (6 AD3d 1047, 1055 [2004].)

Plaintiff Wende C. alleges that between November 2, 1999, and February 2000, while the pastor was giving marriage counseling to the plaintiffs, he engaged in instances of unwanted sexual contact against Wende C. These included an instruction to perform oral sex on him on November 2, 1999, sexual fondling and other sexual acts in a car on November 16, 1999, kissing on December 24, 1999, and fondling on January 21, 2000. All of these instances allegedly occurred after counseling sessions. Moreover, the statute of limitations had not run on these incidents prior to the filing of the lawsuit.

In addition, plaintiffs' allegation is that while Pastor T. was engaging in marital counseling, he breached a duty of trust by engaging in sexual encounters. In the words of the dissenters at the Appellate Division, "while the existence of a clergy malpractice claim would depend on defining and evaluating a cleric's religious duty, a claim for breach of fiduciary duty depends only upon an evaluation of whether a relationship of trust and confidence exists and whether that trust and confidence have been abused." (Id. at 1056.)

Other states have concluded that an action for breach of a fiduciary duty can be maintained where a pastor engages in an inappropriate sexual relationship when pastoral counseling is sought (see, for example, F.G. v MacDonell, 150 NJ 550, 696 A2d 697 [1997]; Sanders v Casa View Baptist Church, 134 F3d 331 [Tex 1998]; Destefano v Grabrian, 763 P2d 275 [Colo 1988]).

For these reasons I would permit plaintiffs to prove their allegations against all of the defendants.{**4 NY3d at 302}

Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge Ciparick; Judge G.B. Smith dissents in part in a separate opinion.

Order affirmed, with costs.