Plaintiffs Jane and John Doe are husband and wife. While members of the Our Mother of Sorrows Church in Rochester, New York, they engaged in marital counseling with a priest at [*2]their church, Father Peter DeBellis. Shortly after the counseling began, DeBellis allegedly had sexual relations with Jane. According to plaintiffs, the sexual relationship between DeBellis and Jane continued for the next 3½ years or so, until June 2004.

Approximately two years later, plaintiffs commenced this action against DeBellis, the Roman Catholic Diocese of Rochester, and Bishop Matthew Clark, alleging a cause of action against each for breach of fiduciary duty. More specifically, the complaint alleges that DeBellis, who "held himself out as qualified in marital counseling", took advantage of Jane Doe's trust in him as a counselor, thereby violating his duty "to refrain from all conduct no[t] designed to improve the Plaintiffs' marriage."

With respect to the Diocese and Bishop Clark, the complaint also asserted causes of action for negligent hiring, supervision and retention. Those defendants allegedly were informed of DeBellis' improper conduct and failed to do anything to stop it.

Defendants now move to dismiss the complaint for failure to state a cause of action (CPLR 3211[a][7]). Relying on Wende C. v United Methodist Church, 6 AD3d 1047 (4th Dept 2004), aff'd 4 NY2d 293 (2005), they contend there is no cognizable cause of action for breach of fiduciary duty against a minister or pastor. Because DeBellis cannot be held liable for breach of fiduciary duty, defendants further contend, there is no basis for holding the Diocese and Bishop Clark liable for the same or any other cause of action.

Wende C. does appear to be directly on point. In that case, as here, the defendant minister provided marital counseling to a couple who belonged to his church. A consensual sexual relationship ensued between the minister and the wife, who later, with her husband, sued the minister, his church and his supervising bishop. The complaint alleged various causes of action, including sexual battery, clergy misconduct and intentional infliction of emotional distress.

Although the complaint in Wende C. did not explicitly assert a cause of action for breach of fiduciary duty, it did allege that the minister's actions constituted a breach of "the sacred trust between a counselor and careseeker in the course of a ministerial relationship." The trial court dismissed the complaint on summary judgment. It ruled that the plaintiffs were alleging, in essence, clergy malpractice, which is not cognizable in New York. Plaintiffs appealed, contending that the "sacred trust" allegation was, in fact, a claim for breach of fiduciary duty, not clergy malpractice.

In a 3-2 decision, the Appellate Division, Fourth Department affirmed, finding that, even if the complaint did assert a claim of breach of fiduciary duty, that was nothing more than an "elliptical" way of alleging clergy misconduct, which, as noted, is not a valid cause of action. The majority reasoned that, to determine whether the minister violated the trust obligations of a fiduciary, the court would have to " venture into forbidden ecclesiastical terrain'", the same problem that would arise from a claim of clergy malpractice (Wende C., at 1050, quoting Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494 [2d Dept 2000]). Stated otherwise, the majority concluded that the case could not be adjudicated with "neutral principles of law, i.e., without judicial inquiry into religious precepts."

The Court of Appeals also affirmed, but it did not reach the issue of whether breach of fiduciary duty is a valid cause of action under these circumstances. Judge Ciparik, writing for the majority, found that the complaint's brief reference to a "sacred trust" was not sufficient to plead [*3]a fiduciary claim. "Given that no fiduciary cause of action is properly before us," Judge Ciparik added, "we leave open for another day the question of whether such a claim may arise between a cleric and a parishioner under very different circumstances, not present here" (4 NY2d 293, 299 [2005]). That day may be fast approaching.

I agree with many arguments advanced by plaintiffs in their memorandum of law. In my view, a cleric who provides secular marriage counseling to a parishioner should not be automatically immune from civil liability solely because of his position in the church. In this case, I see little danger that a judge or jury would have to delve into religious doctrine, policy or practice to determine whether DeBellis, by allegedly engaging in sexual relations with Jane Doe, violated his duty to her as a fiduciary.

Although the religion clauses of the First Amendment are violated when governmental action works to establish a particular religion or infringes upon someone's free exercise of religion, it is unclear to me how either of these constitutional provisions would necessarily be imperilled if plaintiffs were permitted to litigate their breach of fiduciary claim. It is unlikely that any of the defendants would cite scripture in their defense.

For these reasons and others, I am inclined to agree with the dissent in Wende C., as well as that of the trial court in Vione v Tewell, 12 Misc 3d 973 (Sup Ct, NY Co [2006]), which recognized a fiduciary cause of action under circumstances similar, though not identical, to those alleged here (the minister in Vione was also a psychiatrist, but the court's ruling did not turn upon his professional status).

Regardless of my views, I am bound by the holding in Wende C., and the question becomes whether the case at hand is distinguishable. Counsel for plaintiffs contends that this case is different because the complaint alleges that the duty assumed by DeBellis was secular and not religious in nature. The same, however, could be said about the alleged duty assumed by the minister in Wende C. According to the dissent in Wende C., the record showed that the minister "touted his experience as a counselor using secular' counseling tools and techniques" (6 AD3d at 1056). The Appellate Division nevertheless found that no fiduciary claim was permitted.

It is true, as plaintiffs' counsel further points out, that the complaint in this case alleges that DeBellis "held himself out as qualified in marital counseling." But so too did the minister in Wende C., and neither possessed a state license or any state-recognized credentials.

There is one distinction. Counsel for plaintiffs in this case, who also represented the plaintiffs in Wende C., explicitly alleged breach of fiduciary duty in the complaint. She had merely hinted at it in the prior case. That may make a difference to the Court of Appeals, but it should not to the Appellate Division, which addressed and then rejected the fiduciary claim in Wende C. despite any pleading deficiencies.

Based on the above, I must grant defendants' motions to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). Even assuming as true all of the factual allegations set forth in the complaint, they do not, as the law now stands in New York, state a valid cause of action for breach of fiduciary duty. Because there is no basis to hold DeBellis liable for breach of fiduciary duty (the only cause of action asserted against him), there is no basis to hold the other defendants liable under any cause of action. This constitutes the decision and order of the court. [*4]

Dated: February 6, 2007

_________________________

Hon. Stephen K. Lindley

Supreme Court Justice